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Contents Federal Register Vol. 64, No. 202
Wednesday, October 20, 1999
Agriculture Department Energy Department See Animal and Plant Health Inspection Service See Bonneville Power Administration See Farm Service Agency See Federal Energy Regulatory Commission See Food and Nutrition Service RULES See Food Safety and Inspection Service Assistance regulations: See Rural Business-Cooperative Service Technical and adminstrative amendments, 56418–56420 See Rural Housing Service NOTICES See Rural Utilities Service Committees; establishment, renewal, termination, etc.: Fusion Energy Sciences Advisory Committee, 56488 Animal and Plant Health Inspection Service RULES Environmental Protection Agency Interstate transportation of animals and animal products RULES (quarantine): Hazardous waste: Tuberculosis in cattle and bison— Land disposal restrictions— State and area classifications, 56399–56400 Wood preserving wastes, metal wastes, zinc micronutrient fertilizers, etc.; correction, 56469– Architectural and Transportation Barriers Compliance 56472 Board Pesticides; tolerances in food, animal feeds, and raw NOTICES agricultural commodities: Committees; establishment, renewal, termination, etc.: Pyrithiobac sodium salt, 56464–56469 Public Rights-of-Way Access Advisory Committee; PROPOSED RULES meeting, 56482–56483 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities: Arts and Humanities, National Foundation Cyromazine See National Foundation on the Arts and the Humanities Correction, 56477 NOTICES Bonneville Power Administration Agency information collection activities: NOTICES Submission for OMB review; comment request, 56492– Environmental statements; notice of intent: 56493 Columbia River Basin; fish and wildlife implementation Air pollutants, hazardous; national emission standards: plan, 56488–56489 Source categories— Surface coating; two-piece beer and beverage can Children and Families Administration coating, 56493–56496 NOTICES Air programs: Agency information collection activities: State implementation plans; adequacy status for Submission for OMB review; comment request, 56508– transportation conformity purposes— 56509 Illinois, 56497–56498 Indiana, 56496–56497 Commerce Department Wisconsin, 56497 See Export Administration Bureau Meetings: See International Trade Administration Environmental Policy and Technology National Advisory See National Oceanic and Atmospheric Administration Council, 56498–56499 See Patent and Trademark Office Pesticide, food, and feed additive petitions: Monsanto Co., 56502–56505 Customs Service Pesticide registration, cancellation, etc.: RULES American Cyanamid Co., 56499–56500 Financial and accounting procedures: BOC Gases America et al., 56500–56502 Customs duties, taxes, fees and interest; underpayments Water pollution control: and overpayments interest, 56433–56441 State water quality standards; approval and disapproval NOTICES lists and individual control strategies; availability— Agency information collection activities: Minnesota, 56505 Proposed collection; comment request, 56573–56577
Education Department Executive Office of the President RULES See Management and Budget Office Postsecondary education: See Presidential Documents Secretary’s recognition of accrediting agencies, 56611– See Trade Representative, Office of United States 56626 NOTICES Export Administration Bureau Special education and rehabilitative services: NOTICES Individuals with Disabilities Education Act (IDEA)— Export privileges, actions affecting: Correspondence; quarterly list, 56645–56647 Thane-Coat, Inc., et al., 56483–56485
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Farm Service Agency Food Safety and Inspection Service RULES RULES Program regulations: Meat and poultry inspection: Community Facilities Grant Program Sanitation requirements for official establishments, Correction, 56399 56400–56418
Federal Aviation Administration Health and Human Services Department RULES See Children and Families Administration Airworthiness directives: See Food and Drug Administration Boeing, 56420–56422 See National Institutes of Health Fokker, 56422–56424 RULES McDonnell Douglas, 56424–56426 Health resources development: Saab, 56426–56428 Organ procurement and transplantation network; Class E airspace, 56428–56429 operation and performance goals, 56649–56661 NOTICES Federal Bureau of Investigation Committees; establishment, renewal, termination, etc.: NOTICES Xenotransplantation Advisory Committee, 56507–56508 Meetings: DNA Advisory Board, 56516 Interior Department See Fish and Wildlife Service Federal Communications Commission See Land Management Bureau NOTICES See Minerals Management Service Meetings; Sunshine Act, 56505–56506 See National Park Service
Federal Election Commission Internal Revenue Service NOTICES NOTICES Meetings; Sunshine Act, 56506 Agency information collection activities: Proposed collection; comment request, 56577–56578 Federal Energy Regulatory Commission Income taxes: NOTICES Defined benefit pension plans; comment request, 56578– Electric rate and corporate regulation filings: 56579 Louisville Gas & Electric Co. et al., 56490–56492 Environmental statements; availability, etc.: International Development Cooperation Agency TriState Pipeline, L.L.C., 56492 See Overseas Private Investment Corporation Applications, hearings, determinations, etc.: Texas Eastern Transmission Corp., 56489–56490 International Trade Administration Vector Pipeline L.P., 56490 NOTICES Antidumping and countervailing duties: Federal Reserve System Administrative review requests, 56485–56486 NOTICES Federal Open Market Committee: International Trade Commission Domestic policy directives, 56506–56507 NOTICES Meetings; Sunshine Act, 56507 Import investigations: Drams of one megabit and above from— Fish and Wildlife Service Taiwan, 56515 RULES Neodymium-iron-boron magnets, magnet alloys, and Endangered and threatened species: articles containing same, 56515–56516 Deseret milk-vetch, 56590–56596 Devils River minnow, 56596–56609 Justice Department Pecos sunflower, 56581–56590 See Federal Bureau of Investigation
Food and Drug Administration Labor Department RULES NOTICES Biological products: Agency information collection activities: Biological license implementation; establishment and Submission for OMB review; comment request, 56516 product licenses elimination, 56441–56454 Environmental impact considerations: Land Management Bureau Foods, food additives, and color additives; CFR NOTICES correction, 56454 Closure of public lands: NOTICES Nevada, 56514 Meetings: Meetings: Anti-Infective Drugs Advisory Committee, 56509 Resource Advisory Councils— Dermatologic and Ophthalmic Drugs Advisory Northwest Colorado, 56514 Committee, 56509–56510 Management and Budget Office Food and Nutrition Service NOTICES NOTICES Metropolitan and nonmetropolitan areas; definition Agency information collection activities: standards review and alternative approaches; comment Proposed collection; comment request, 56482 request, 56627–56644
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Minerals Management Service NOTICES RULES Environmental statements; availability, etc.: Royalty management: Public Service Electric & Gas Co., 56523–56524 Indian leases; gas valuation; training sessions, 56454– Meetings: 56455 Reactor Safety Goal Policy Statement; public workshop, 56524–56525 National Archives and Records Administration Spent nuclear fuel transportation; shipping cask accident NOTICES studies, 56525–56526 Electronic copies previously covered by General Records Meetings; Sunshine Act, 56526 Schedule 20; records schedules availability and Operating licenses, amendments; no significant hazards comment request, 56517–56518 considerations; biweekly notices, 56526–56543 Applications, hearings, determinations, etc.: National Foundation on the Arts and the Humanities Niagara Mohawk Power Corp., 56518–56522 NOTICES Northeast Nuclear Energy Co. et al., 56522–56523 Meetings; Sunshine Act, 56518 Office of Management and Budget National Highway Traffic Safety Administration See Management and Budget Office NOTICES Motor vehicle safety standards: Office of United States Trade Representative Nonconforming vehicles— See Trade Representative, Office of United States Importation eligibility; determinations, 56564–56570 National Institutes of Health Overseas Private Investment Corporation NOTICES NOTICES Meetings: Agency information collection activities: National Cancer Institute, 56510–56512 Proposed collection; comment request, 56514 National Heart, Lung, and Blood Institute, 56512 National Institute of Diabetes and Digestive and Kidney Patent and Trademark Office Diseases, 56513 NOTICES National Institute of Neurological Disorders and Stroke, Senior Executive Service: 56512 Performance Review Board; membership, 56488 National Institute on Drug Abuse, 56512–56513 Women’s Health Research Advisory Committee, 56513 Postal Service NOTICES National Oceanic and Atmospheric Administration Meetings: RULES Consensus Committee, 56543 Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone— Presidential Documents Pacific cod, 56473–56475 PROCLAMATIONS Pollock, 56473–56475 Special observances: Yellowfin sole, 56474 Character Counts Week, National (Proc. 7242), 56663– Atlantic highly migratory species— 56666 Atlantic bluefin tuna, 56472–56473 ADMINISTRATIVE ORDERS PROPOSED RULES Columbia; continuation of emergency with respect to Fishery conservation and management: significant narcotics traffickers (Notice of October 19, Alaska; fisheries of Exclusive Economic Zone— 1999), 56663–56667 , Pollock, 56481 West Coast States and Western Pacific fisheries— Public Health Service Western Pacific Region pelagic species; environmental See Food and Drug Administration impact statement, 56479–56481 See National Institutes of Health NOTICES Meetings: Research and Special Programs Administration Mid-Atlantic Fishery Management Council et al., 56486 NOTICES New England Fishery Management Council, 56487 Meetings: National Park Service Pipeline safety; damage prevention (‘‘path forward’’), 56570–56571 RULES National Park System: Glacier Bay National Park, AK; commercial fishing Rural Business-Cooperative Service activities, 56455–56464 RULES Program regulations: Northeast Dairy Compact Commission Community Facilities Grant Program NOTICES Correction, 56399 Meetings, 56518 Rural Housing Service Nuclear Regulatory Commission RULES PROPOSED RULES Program regulations: Rulemaking petitions: Community Facilities Grant Program Nuclear Energy Institute; withdrawn, 56476 Correction, 56399
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Rural Utilities Service Trade Representative, Office of United States RULES RULES Program regulations: Tariff-rate quota amount determinations: Community Facilities Grant Program Lamb meat, 56429–56430 Correction, 56399 Transportation Department See Federal Aviation Administration Securities and Exchange Commission See National Highway Traffic Safety Administration RULES See Research and Special Programs Administration Electronic Data Gathering, Analysis, and Retrieval See Surface Transportation Board (EDGAR): PROPOSED RULES Filer manual— Motor carrier safety standards: Update adoption and incorporation by reference, Inspection, repair, and maintenance of intermodal 56430–56433 container chassis and trailers; responsibilities; NOTICES meeting, 56478–56479 Options Price Reporting Authority: Participation fee payable by each new party to plan, Treasury Department 56543–56545 See Customs Service Securities: See Internal Revenue Service Suspension of trading— NOTICES Las Vegas Entertainment Network, Inc., 56545 Agency information collection activities: Self-regulatory organizations; proposed rule changes: Proposed collection; comment request, 56576–56577 American Stock Exchange LLC, 56545–56547 Chicago Board Options Exchange, Inc., 56547–56548 Chicago Stock Exchange, Inc., 56548–56554 Separate Parts In This Issue National Association of Securities Dealers, Inc., 56554– 56560 Part II New York Stock Exchange, Inc., 56560–56562 Department of Interior, Fish and Wildlife Service, 56581– Pacific Exchange, Inc., 56562–56564 56609
Part III Social Security Administration Department of Education, 56611–56626 NOTICES Senior Executive Service: Part IV Performance Review Board; membership, 56564 Department of Management and Budget, 56627–56644
State Department Part V NOTICES Department of Education, 56645–56647 Organization, functions, and authority delegations: Part VI Director General of Foreign Service and Director of Department of Health and Human Services, 56649–56661 Personnel, 56564 Part VII Surface Transportation Board The President, 56663–56667 NOTICES Motor carriers: Finance applications— Reader Aids Northwest Motor Coach L.L.C., 56571–56572 Consult the Reader Aids section at the end of this issue for Railroad operation, acquisition, construction, etc.: phone numbers, online resources, finding aids, reminders, Delta Southern Railroad Co., 56572–56573 and notice of recently enacted public laws.
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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 40 CFR Proclamations: 180...... 56464 7242...... 56665 261...... 56469 262...... 56469 Executives Orders: 268...... 56469 12978 (See Notice of Proposed Rules: October 19, 1999)...... 56667 180...... 56477 Administrative Orders: Notice of October 19, 42 CFR 1999 ...... 56667 121...... 56650 7 CFR 49 CFR 2003...... 56399 Proposed Rules: 3570...... 56399 Ch. III ...... 56478 9 CFR 50 CFR 77...... 56399 17 (3 documents) ...... 56582, 303...... 56400 56590, 56596 304...... 56400 635...... 56472 307...... 56400 679 (5 documents) ...... 56473, 308...... 56400 56474, 56475 312...... 56400 314...... 56400 Proposed Rules: 327...... 56400 660...... 56479 331...... 56400 679...... 56481 350...... 56400 381...... 56400 416...... 56400 10 CFR 600...... 56418 Proposed Rules: 50...... 56476 14 CFR 39 (4 documents) ...... 56420, 56422, 56424, 56426 71 (2 documents) ...... 56428, 56429 15 CFR 2014...... 56429 17 CFR 232...... 56430 239...... 56430 249...... 56430 259...... 56430 269...... 56430 274...... 56430 19 CFR 24...... 56433 159...... 56433 174...... 56433 21 CFR 3...... 56441 5...... 56441 10...... 56441 20...... 56441 25...... 56454 50...... 56441 56...... 56441 58...... 56441 207...... 56441 310...... 56441 312...... 56441 316...... 56441 600...... 56441 601...... 56441 607...... 56441 610...... 56441 640...... 56441 660...... 56441 30 CFR 202...... 56454 206...... 56454 34 CFR 602...... 56612 36 CFR 13...... 56455
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Rules and Regulations Federal Register Vol. 64, No. 202
Wednesday, October 20, 1999
This section of the FEDERAL REGISTER DEPARTMENT OF AGRICULTURE Veterinarian, National Animal Health contains regulatory documents having general Programs, VS, APHIS, 4700 River Road applicability and legal effect, most of which Animal and Plant Health Inspection Unit 43, Riverdale, MD 20737–1231; are keyed to and codified in the Code of Service (301) 734–7716. Federal Regulations, which is published under SUPPLEMENTARY INFORMATION: 50 titles pursuant to 44 U.S.C. 1510. 9 CFR Part 77 Background The Code of Federal Regulations is sold by [Docket No. 99±063±1] the Superintendent of Documents. Prices of Bovine tuberculosis is a contagious, new books are listed in the first FEDERAL Tuberculosis in Cattle and Bison; State infectious, and communicable disease REGISTER issue of each week. Designations; California, caused by Mycobacterium bovis. The Pennsylvania, and Puerto Rico regulations in 9 CFR part 77, ‘‘Tuberculosis’’ (referred to below as the AGENCY: Animal and Plant Health DEPARTMENT OF AGRICULTURE regulations), regulate the interstate Inspection Service, USDA. movement of cattle and bison because of Rural Housing Service ACTION: Interim rule and request for tuberculosis. Cattle and bison not comments. Rural Business-Cooperative Service known to be affected with or exposed to SUMMARY: We are amending the tuberculosis are eligible for interstate Rural Utilities Service tuberculosis regulations concerning the movement without restriction if those cattle or bison are moved from a State Farm Service Agency interstate movement of cattle and bison by raising the designations of California, designated as an accredited-free, accredited-free (suspended), or modified 7 CFR Parts 2003 and 3570 Pennsylvania, and Puerto Rico from modified accredited States to accredited State. The regulations restrict the interstate movement of cattle and RIN 0575±AC10 accredited-free States. We have determined that California, bison not known to be affected with or Pennsylvania, and Puerto Rico meet the exposed to tuberculosis if those cattle or Community Facilities Grant Program; bison are moved from a nonmodified Correction criteria for designation as accredited- free States. accredited State. The status of a State is based on its AGENCIES: Rural Housing Service (RHS), DATES: This interim rule is effective freedom from evidence of tuberculosis Rural Business-Cooperative Service October 14, 1999. We invite you to in cattle or bison, the effectiveness of (RBS), Rural Utilities Service (RUS), and comment on this docket. We will the State’s tuberculosis eradication Farm Service Agency (FSA), USDA. consider all comments that we receive program, and the degree of the State’s by December 20, 1999. ACTION: Correction to final regulations. compliance with the standards ADDRESSES: Please send your comment contained in a document titled and three copies to: Docket No. 99–063– ‘‘Uniform Methods and Rules—Bovine SUMMARY: The Rural Housing Service 1, Regulatory Analysis and Tuberculosis Eradication,’’ which has (RHS) corrects a final rule published Development, PPD, APHIS, Suite 3C03, been made part of the regulations by June 17, 1999 (64 FR 32387). This action 4700 River Road, Unit 118, Riverdale, incorporation by reference. A State must is to remove an incorrect amendment. MD 20737–1238. have no findings of tuberculosis in any Accordingly, the final rule is corrected Please state that your comment refers cattle or bison for at least 5 years to be to read as follows: On page 32388 in the to Docket No. 99–063–1. designated as an accredited-free State. A third column, remove Amendment 3 You may read any comments that we State that reverts to modified accredited and redesignate remaining amendments receive on this docket in our reading status from accredited-free status, due to accordingly. room. The reading room is located in the detection of tuberculosis in two or room 1141 of the USDA South Building, EFFECTIVE DATE: October 20, 1999. more herds within a 48-month period, is 14th Street and Independence Avenue, eligible to apply for the reinstatement of FOR FURTHER INFORMATION CONTACT: SW., Washington, DC. Normal reading its accredited-free status following 5 Jennifer Barton, Senior Loan Specialist, room hours are 8 a.m. to 4:30 p.m., years of freedom from evidence of Community Programs Division, Rural Monday through Friday, except tuberculosis and full compliance with Housing Service, U.S. Department of holidays. To be sure someone is there to the standards contained in the ‘‘Uniform Agriculture, 1400 Independence Avenue help you, please call (202) 690–2817 Methods and Rules—Bovine SW., Washington, DC 20250–0787, before coming. Tuberculosis Eradication.’’ telephone (202) 720–1504. APHIS documents published in the Before publication of this interim Federal Register, and related rule, California, Pennsylvania, and Dated: September 27, 1999. information, including the names of Puerto Rico were designated in § 77.1 of Jill Long Thompson, organizations and individuals who have the regulations as modified accredited Under Secretary Rural Development. commented on APHIS rules, are States. However, California, [FR Doc. 99–27405 Filed 10–19–99; 8:45 am] available on the Internet at http:// Pennsylvania, and Puerto Rico now BILLING CODE 3410±XV±M www.aphis.usda.gov/ppd/rad/ meet the requirements for designation as webrepor.html. accredited-free States. The two States FOR FURTHER INFORMATION CONTACT: Dr. and Puerto Rico have been free of Joseph VanTiem, Senior Staff tuberculosis for at least 5 years, and
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.158 pfrm03 PsN: 20OCR1 56400 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations they have met the requirements of the owners would be considered small 2. In § 77.1, in the definition of standards contained in the ‘‘Uniform businesses. Puerto Rico has Accredited-free state, paragraph (2) is Methods and Rules—Bovine approximately 1,982 dairy herds and amended by adding ‘‘California,’’ Tuberculosis Eradication’’ by tracing all 3,957 beef herds with a combined total immediately after ‘‘Arkansas,’’ and by potential sources of infection and of approximately 386,980 cattle. adding ‘‘Pennsylvania, Puerto Rico,’’ maintaining an adequate level of Approximately 99 percent of herd immediately after ‘‘Oregon,’’, and in the slaughter surveillance. Therefore, we are owners would be considered small definition of Modified accredited State, amending the regulations by removing businesses. Changing the status of paragraph (2) is revised to read as California, Pennsylvania, and Puerto California, Pennsylvania, and Puerto follows: Rico from the list of modified accredited Rico may enhance the marketability of States in § 77.1 and adding them to the cattle and bison from those States, since § 77.1 Definitions. list of accredited-free States in that some prospective cattle and bison * * * * * section. buyers prefer to buy cattle and bison Modified accredited State. * * * * * Immediate Action from accredited-free States. This may result in some beneficial economic (2) Modified accredited States: New The Administrator of the Animal and effect on some small entities. However, Mexico and Texas. Plant Health Inspection Service has based on our experience in similar * * * * * determined that there is good cause for designations of other States, the effect Done in Washington, DC, this 14th day of publishing this interim rule without should not be significant. October 1999. prior opportunity for public comment. Under these circumstances, the Richard L. Dunkle, Immediate action is warranted to change Administrator of the Animal and Plant Acting Administrator, Animal and Plant the regulations so that they accurately Health Inspection Service has Health Inspection Service. reflect the current tuberculosis status of determined that this action will not [FR Doc. 99–27322 Filed 10–19–99; 8:45 am] California, Pennsylvania, and Puerto have a significant economic impact on BILLING CODE 3410±34±U Rico as accredited-free States. This will a substantial number of small entities. provide prospective cattle and bison buyers with accurate and up-to-date Executive Order 12372 DEPARTMENT OF AGRICULTURE information, which may affect the This program/activity is listed in the marketability of cattle and bison since Food Safety and Inspection Service some prospective buyers prefer to buy Catalog of Federal Domestic Assistance cattle and bison from accredited-free under No. 10.025 and is subject to 9 CFR Parts 303, 304, 307, 308, 312, States. Executive Order 12372, which requires 314, 327, 331, 350, 381, and 416 intergovernmental consultation with Because prior notice and other public [Docket No. 96±037F] procedures with respect to this action State and local officials. (See 7 CFR part 3015, subpart V.) are impracticable and contrary to the Sanitation Requirements for Official public interest under these conditions, Executive Order 12988 Meat and Poultry Establishments we find good cause under 5 U.S.C. 553 to make this action effective less than 30 This interim rule has been reviewed AGENCY: Food Safety and Inspection days after publication. We will consider under Executive Order 12988, Civil Service, USDA. comments that are received within 60 Justice Reform. This rule: (1) Preempts ACTION: Final rule. days of publication of this rule in the all State and local laws and regulations SUMMARY: The Food Safety and Federal Register. After the comment that are in conflict with this rule; (2) has Inspection Service (FSIS) is revising its period closes, we will publish another no retroactive effect; and (3) does not regulatory requirements concerning document in the Federal Register. The require administrative proceedings sanitation in official meat and poultry document will include a discussion of before parties may file suit in court establishments. Specifically, FSIS is any comments we receive and any challenging this rule. consolidating the sanitation regulations amendments we are making to the rule Paperwork Reduction Act into a single part applicable to both as a result of the comments. This interim rule contains no official meat and poultry Executive Order 12866 and Regulatory information collection or recordkeeping establishments, eliminating unnecessary Flexibility Act requirements under the Paperwork differences between the sanitation This rule has been reviewed under Reduction Act of 1995 (44 U.S.C. 3501 requirements for meat and poultry Executive Order 12866. For this action, et seq.). processing, and converting many of the highly prescriptive sanitation the Office of Management and Budget List of Subjects in 9 CFR Part 77 has waived its review process required requirements to performance standards. by Executive Order 12866. Animal diseases, Bison, Cattle, EFFECTIVE DATES: January 25, 2000. Cattle and bison are moved interstate Reporting and recordkeeping FOR FURTHER INFORMATION CONTACT: for slaughter, for use as breeding stock, requirements, Transportation, Daniel L. Engeljohn, Ph.D., Director, or for feeding. California has Tuberculosis. Regulation Development and Analysis approximately 2,650 dairy herds and Accordingly, we are amending 9 CFR Division, Office of Policy, Program 12,158 beef herds with a combined total part 77 as follows: Development, and Evaluation, Food of approximately 5,968,679 cattle. Safety and Inspection Service, U.S. Approximately 98 percent of herd PART 77ÐTUBERCULOSIS Department of Agriculture (202) 720– owners would be considered small 5627. businesses. Pennsylvania has 1. The authority citation for part 77 SUPPLEMENTARY INFORMATION: approximately 10,920 dairy herds and continues to read as follows: Background 11,237 beef herds with a combined total Authority: 21 U.S.C. 111, 114, 114a, 115– of approximately 1,672,295 cattle. 117, 120, 121, 134b, and 134f; 7 CFR 2.22, As a result of a recent, comprehensive Approximately 99 percent of herd 2.80, and 371.2(d). review of its regulatory procedures and
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FSIS believed the original 60- their unique processing environments. requirements were difficult to day comment period was sufficient and The sanitation performance standards understand, redundant, or outdated. did not extend it, except for the 15-day established in this rule not only will Also, the Agency found that there were period discussed above. provide meat and poultry unnecessary differences between the About two-thirds of the commenters establishments with the flexibility to sanitation regulations for official meat opposed the proposal in general. Many innovate in facility design, construction, and poultry establishments. Finally, the of these commenters characterized the and operations, but also will articulate Agency could not justify the retention of proposal as ‘‘deregulation’’ that would the standards for good sanitation and for the sanitation regulations that were weaken inspection program employee food product safety that must be met by inconsistent with the Agency’s recently authority and reduce the consumer food establishments. finalized Hazard Analysis and Critical safety protections in the existing The sanitation performance standards Control Point (HACCP) and Sanitation prescriptive regulations. Most of these are not subject to multiple Standard Operating Procedure commenters argued that there should be interpretations. Regardless of the area or (Sanitation SOP) regulations. These no, or only minimal, change to the activity any individual performance sanitation requirements were existing sanitation regulations. standard governs, all of the sanitation unnecessarily prescriptive, impeded The other third of the commenters standards have the same intent: An innovation, and blurred the distinction generally supported the proposal to official meat or poultry establishment between establishment and inspection revise the sanitation requirements for must operate under sanitary conditions, program employee responsibilities for official meat and poultry in a manner that ensures that product is maintaining sanitary conditions. establishments. These commenters not adulterated and that does not Therefore, on August 25, 1997, FSIS commended FSIS efforts to streamline interfere with FSIS inspection and its published in the Federal Register a and consolidate the sanitation enforcement of such standards. proposal to revise its sanitation requirements, to make the requirements However, because the sanitation requirements for official meat and consistent with the HACCP and performance standards define the poultry establishments (62 FR 45045). Sanitation SOP regulations, and to grant results to be achieved by sanitation, but FSIS proposed to consolidate the establishments greater flexibility to not the specific means to achieve those sanitation regulations into a single part innovate. Many of these commenters, results, the sanitation performance applicable to both official meat and however, did raise objections to and standards can be met by establishments poultry establishments, eliminate recommend revisions for specific in different ways. Regardless of the unnecessary differences between the provisions in the proposed rule. means by which establishments comply meat and poultry sanitation FSIS responses to all of the relevant with the standards, the required results requirements, and convert many of the comments follow. will be the same for all establishments. The sanitation performance standards highly prescriptive sanitation General Opposition requirements into performance do not lessen the authority of FSIS standards. FSIS initially solicited Comment: Many of the commenters inspection program employees nor in comment on the proposal for a 60-day opposed to the proposal characterized any way weaken the statutory and period ending October 24, 1997. the performance standards as regulatory requirements that official Shortly after the comment period for ‘‘deregulation’’ that would weaken FSIS meat and poultry establishments that proposal opened, FSIS mistakenly enforcement authority and endanger maintain sanitary conditions and ensure released information that consumers. Some of these commenters that product is not adulterated. Section mischaracterized the provisions of the maintained that the proposed 8 of the Federal Meat Inspection Act proposal concerning the use of nonfood performance standards are too general to (FMIA) states that the ‘‘Secretary shall compounds and proprietary substances. be enforceable, as they would allow for cause to be made by experts in In order to alleviate any confusion multiple interpretations of the sanitation or other competent regarding the sanitation proposal and to sanitation standards. Several inspectors, such inspection * * * as clarify FSIS policy in regard to nonfood commenters also argued that by may be necessary to inform himself of compounds and proprietary substances, replacing with performance standards the sanitary conditions* * * of FSIS published a retraction of the the existing sanitation requirements that ** *establishments.’’ It also provides erroneous information in the Federal contain prohibitions against specific that ‘‘where the sanitary conditions of Register (FSIS Docket No. 97–062N; 62 activities, such as the prohibition in any such establishment are such that the FR 55996). Further, in order to ensure § 308.8(e) against ‘‘placing skewers, tags, meat or meat food products are rendered that the public had ample opportunity or knives in the mouth,’’ FSIS would be adulterated, (the Secretary of to submit meaningful comments on the impairing inspection program Agriculture) shall refuse to allow said sanitation proposal and its provisions employees’ ability to take action as meat or meat food products to be concerning nonfood compounds and necessary to prevent product labeled, marked, stamped, or tagged as proprietary substances, FSIS reopened adulteration. ‘inspected and passed.’ ’’ Likewise the comment period for that proposal Response: The sanitation performance section 7 of the Poultry Products for 15 days, from October 28, 1997, to standards are ‘‘deregulatory’’ in the Inspection Act (PPIA) requires that November 10, 1997 (FSIS Docket 96– sense that they remove obstacles to every official poultry establishment 037R; 62 FR 55997). innovation previously caused by overly subject to inspection be operated By the close of the second comment prescriptive, and in some cases obsolete, according to sanitary practices period, FSIS had received 51 comments sanitation regulations. For ‘‘required by regulations promulgated from meat and poultry establishments, establishments to fully and successfully by the Secretary (of Agriculture) for the trade and professional associations, meet the HACCP and Sanitation SOP purpose of preventing the entry into academia, consumer advocacy groups, requirements, they must be able to * * * commerce * * * of poultry
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.109 pfrm03 PsN: 20OCR1 56402 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations products which are adulterated’’ and has determined that it is the any time it determines that meat or directs the Secretary of Agriculture to establishment’s responsibility to ensure poultry products have been misbranded. refuse inspection ‘‘to any establishment that the chemicals it uses are safe and Comment: Similarly, several whose premises, facilities, or appropriate for use in its particular meat commenters questioned the proposed equipment, or the operation thereof, fail or poultry processing environment. rule language requiring that to meet the (sanitation) requirements of Establishments will be required to establishments operate in a sanitary this section.’’ account for the safety and appropriate manner in order to prevent both FSIS does not need to specifically use of these chemicals in their written ‘‘adulteration’’ and ‘‘contamination.’’ prohibit every action that could possibly HACCP plans, Sanitation SOP’s, or in These commenters argued that lead to product adulteration or other documentation. A full discussion ‘‘contamination’’ is a very broad term insanitary conditions. It would, in fact, of this issue can be found below under that can describe problems with product be impossible to compile such a list of the section entitled ‘‘Cleaning quality or composition, as well as those prohibited practices. FSIS inspection Compounds and Sanitizers.’’ associated with product safety. They program employees currently have the Comment: Finally, two commenters maintained that a requirement to authority to withhold the mark of argued that the proposed performance prevent ‘‘adulteration’’ would be inspection if an establishment fails to standards could have a deleterious sufficient, as ‘‘adulteration’’ is defined ensure that product is not adulterated or impact on trade. One stated that by both the FMIA and the PPIA. fails to maintain sanitary conditions, European countries with more stringent Response: FSIS agrees that the term even if the failure in question is not sanitation requirements would ban ‘‘contamination’’ may cause some specifically prohibited in the imports of U.S. meat and poultry confusion and has removed the regulations. This authority remains products if the proposed performance references to ‘‘contamination’’ unchanged under the new performance standards were made final. throughout the rule language. FSIS emphasizes, however, that standards. For example, were an Response: FSIS disagrees. Many of the establishment employee to place a knife establishments must maintain sanitary United States’ major agricultural trading used on inspected product in his mouth, conditions within their processing partners have already implemented or that action would be a violation of facilities, as insanitary conditions do are currently developing meat and § 416.5(a), ‘‘All persons working in lead to the adulteration of product. poultry inspection systems contact with product, food-contact While the references to ‘‘contamination’’ incorporating performance standards or surfaces, and product-packaging have been removed, FSIS has added to food safety objectives, rather than materials must adhere to hygienic the regulations the requirement that prescriptive, ‘‘command-and-control’’ practices while on duty to prevent processing activities and the use of regulations. Further, because the adulteration of product.’’ chemicals and equipment must not Comment: Several commenters sanitation performance standards do not create insanitary conditions. objected to the proposed rescission of lower the existing food safety standards Establishment Grounds and Pest the regulations requiring that various for meat and poultry, but instead only Management: Proposed § 416.2(a) systems (such as plumbing and sewage allow for increased flexibility and systems) and activities (such as the use innovation to meet the prescribed Comment: Several commenters of sanitizers, pesticides, and other standards, other countries would not be objected to the language of proposed chemicals) be prior-approved by circuit justified in imposing any new § 416.2(a) regarding establishment supervisors or other FSIS program restrictions in response. Thus, FSIS grounds: ‘‘The grounds about an employees. These commenters claimed anticipates that these new regulations establishment must be maintained to that many serious sanitation problems will have no adverse impact on trade. prevent conditions that could lead to can be prevented only through prior- General Sanitation: Proposed § 416.1 contamination or adulteration of approval of such systems and activities product or that could prevent FSIS by experienced FSIS program Comment: Several commenters program employees from performing employees. Further, these commenters questioned the proposed performance assigned tasks.’’ The commenters maintained that without prior approval, standard language in § 416.1 and contended that the phrase ‘‘grounds establishments will negligently use elsewhere requiring that establishments about an establishment’’ is inconsistent pesticides and other chemicals, be operated in a sanitary manner with recent FSIS policy that adulterating product. sufficient to prevent product from being establishment management is Response: FSIS disagrees. In regard to ‘‘misbranded.’’ These commenters responsible for defining the boundaries the prior approval of establishment argued that there could never be a of their facilities. Specifically, plumbing, sewage, and other systems, situation where insanitation by itself commenters cite recent FSIS Directive FSIS has made the determination that it could lead to misbranding and, 7640.1, ‘‘Inspection Duties Related to should afford establishments the therefore, that the requirement is Facilities and Equipment, and Plant flexibility to determine what is unnecessary. Operated Quality Control Programs,’’ appropriate and sufficient for Response: FSIS agrees that it would which states that inspection program maintaining sanitary conditions and be highly unlikely for any meat or employees are to request from preventing the adulteration of product. poultry product to be misbranded as a establishment management written FSIS will verify that these systems meet result of insanitation and has removed designation of the official premises’ the sanitation performance standards the references to misbranding from boundaries. Therefore, these through inspection. FSIS already has §§ 416.1, 416.2(c), and 416.3. commenters have suggested that rescinded the requirements for prior Establishments should keep in mind, ‘‘grounds about an establishment’’ be approval of establishment drawings, however, that the misbranding of meat revised to read ‘‘grounds as designated specifications, and equipment used in or poultry products is prohibited by the by the establishment.’’ official establishments (62 FR 45015; FMIA, the PPIA, and the regulations Response: FSIS disagrees. The Agency August 25, 1997). promulgated under those Acts. FSIS sees no inconsistency between the In regard to the use of pesticides, will take action in accordance with its directive and the performance standard sanitizers, and other chemicals, FSIS statutory authority and the regulations as proposed. Proper maintenance of the
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Establishments are assurance to meat and poultry storage of product.’’ Commenters argued responsible for preventing adulteration processors that proper use of these that the requirement regarding of product even if the sources are compounds would not result in the ‘‘sufficient size’’ constitutes a new outside the designated boundaries of the adulteration or contamination of food standard for sanitation. Commenters establishment. Revising the performance products. However, FSIS has concluded also argued that the phrase ‘‘sanitary standard to address only areas within after careful consideration of the issue processing, handling, and storage of the designated boundaries could that this prior approval program is product’’ is too general; they suggested mislead establishments into believing unnecessary and inconsistent with that the construction standard be based that they are not responsible for HACCP. Under the HACCP regulations, upon preventing adulteration of preventing such adulteration, especially establishments are responsible for product. when it originates from areas outside of developing and implementing HACCP Response: FSIS disagrees that the the designated boundaries of the plans incorporating the controls requirement that rooms in an official processing operations, but under the necessary and appropriate to produce establishment be of ‘‘sufficient size’’ control of the establishment. safe meat and poultry products. constitutes a new standard. Although Accordingly, FSIS is not making any Consequently, establishments are the previous regulations did not changes to the rule language as responsible for ensuring that the explicitly require rooms to be any proposed. pesticides and rodenticides they use are particular size, the requirement that Comment: FSIS proposed to require safe and effective. rooms be of sufficient size to prevent the that establishments ‘‘have in place an Further, FSIS prior approval of adulteration of product was implicit. integrated pest management program to pesticides and rodenticides has been Moreover, this requirement is fully prevent the harborage and breeding of somewhat redundant with the consistent with the FMIA and PPIA. An pests on the grounds and within Environmental Protection Agency (EPA) establishment would very likely be in establishment facilities.’’ One requirements and review programs for violation of the statutory and regulatory commenter suggested that FSIS delete these compounds. Under the Federal prohibitions against product the word ‘‘integrated,’’ arguing that it is Insecticide, Fungicide, and Rodenticide adulteration if its processing or storage confusing and unnecessary. Act (FIFRA), EPA reviews pesticide rooms were so small that adequate Response: Integrated pest formulation, intended use, and other separation of raw and ready-to-eat management (IPM) is a widely information; registers all pesticides for product were impossible. FSIS is merely recognized system of agricultural pest use in the United States; and prescribes making this requirement explicit in this control that takes into account pest labeling, use, and other regulatory performance standard. ecology and the effect of pesticides and requirements to prevent unreasonable FSIS agrees that the proposed other pest control chemicals on the adverse effects on the environment, language regarding ‘‘sanitary processing, environment and on food. For the most including humans, wildlife, plants, and handling, and storage of product’’ part, IPM has been used within property. Any meat or poultry should be revised to make clear the agricultural production systems. establishment using a pesticide must obligation specified in this regulation. However, IPM also is applicable to meat follow the FIFRA requirements. For clarity and consistency with the and poultry processing. FSIS is requiring that documentation other performance standards, FSIS is FSIS has rethought its tentative view substantiating the safety of pesticides revising this performance standard to that meat and poultry establishments and rodenticides be available to FSIS read: ‘‘Establishment buildings, should implement IPM systems. inspection program employees for including their structures, rooms, and Although FSIS encourages review (§ 416.4(c)). The documentation compartments must be of sound establishments to develop or adopt IPM, will need to include proof of EPA construction, be kept in good repair, and FSIS has concluded that IPM is not registration and could also include other be of sufficient size to allow for absolutely necessary to ensure the any information, such as letters of processing, handling, and storage of production of unadulterated meat or guaranty from the manufacturer, labels, product in a manner that does not result poultry products. In this final rule, FSIS application instructions, and records of in product adulteration or the creation is requiring that any pest control system use that establish the safe and effective of insanitary conditions.’’ used by an establishment be designed use of these products. FSIS inspection Comment: A few commenters stated and implemented so as to ensure that program employees will review these that while large establishments might be product is not adulterated either by records as necessary, as well as observe able to innovate effectively under the pests or by the products designed to the application and storage of pesticides proposed performance standards for control them and, further, that the pest and rodenticides to ensure the construction, many small control system does not create maintenance of sanitary conditions and establishments lack the expertise to insanitary conditions. that product is not adulterated. (For innovate in facility construction and Comment: The remaining comments further discussion of prior approval of design and need to follow specific on pest control addressed the proposal pesticides and other chemicals, see the requirements in order to maintain to eliminate the requirements that section ‘‘Cleaning Compounds and sanitary operations that produce safe pesticides and rodenticides be approved Sanitizers’’ below.) meat and poultry products. by FSIS prior to their use in official Response: FSIS disagrees. The design establishments. Several commenters Establishment Construction: Proposed or alteration of facility construction or argued that without prior approval of § 416.2(b) layout is well within the capability of pesticides and prescriptive Comment: Several commenters most, if not all, meat and poultry requirements concerning their use, objected to the language of the proposed establishments, regardless of size.
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Moreover, in this rule, FSIS is not constructed and maintained to prevent same requirement to meat requiring establishments to innovate in the entrance of vermin, such as flies, establishments. regard to facility construction or layout. rats, and mice.’’ The commenter argued Response: FSIS disagrees. FSIS does Establishments currently maintaining that these examples are unnecessary. not believe it is necessary to prescribe sanitary conditions will not need to Response: These examples are specific light intensities to ensure make any changes to their construction illustrative of the types of vermin sanitation in meat and poultry or layout as a result of this performance known to commonly infest meat and processing areas because establishments standard. Further, FSIS is making poultry establishments and, therefore, must determine what light intensities available a compliance guide for the FSIS is retaining them in the are appropriate to ensure sanitation in sanitation performance standards, regulations. different operational contexts. including the standards for Comment: Finally, although no Importantly, however, as with all of the construction. Establishments commenter specifically addressed the sanitation performance standards, FSIS remodeling or undertaking new proposed standard concerning the will continue to verify through construction may consult this guide or separation of edible and inedible inspection that the lighting meets the the various national building and product, FSIS believes that the proposed performance standard. construction codes, State and local laws standard could be misunderstood and is The previous requirements for and codes, and other relevant resources making a revision to clarify its intent. lighting in poultry establishments in available from trade associations, FSIS proposed to require that ‘‘Rooms or § 381.52 prescribed specific light consultants, and nonprofit compartments in which edible product intensities for different areas of the organizations. is processed, handled, or stored must be establishment. For example, FSIS Comment: One commenter questioned separate and distinct from rooms or required that all rooms in which poultry FSIS’ recommendation that compartments in which inedible was killed, eviscerated, or otherwise establishments consult the Food Code, product is processed, handled, or processed have 30-foot candles of light as well as national building and stored.’’ FSIS did not intend to imply intensity on all working surfaces. The construction codes, when designing or that rooms where edible product is comparable regulations for red meat building facilities. The commenter processed, handled, or stored could establishments in § 308.3(b) did not maintained that because these never be used for the processing, contain such specific requirements, but documents have no force of law, handling or storage of inedible product. required only that meat establishments establishments do not have to follow FSIS has allowed, and will continue to have ‘‘abundant light, of good quality their guidance, and further, that these allow, establishments to process, and well distributed.’’ However, the documents are not always applicable to handle, or store edible and inedible intent of these requirements was the the unique requirements of meat and product in the same room as long as same for both meat and poultry poultry processing establishments. This they are separated by time or space, in establishments: there must be enough commenter concluded that specific a manner sufficient to prevent the light of adequate quality to monitor design and construction requirements adulteration of the edible product or the sanitary conditions and processing are necessary to ensure that meat and creation of insanitary conditions. operations and to examine product for poultry establishments are built Response: FSIS is adopting a revised evidence of adulteration. New § 416.2(c) properly. standard that states: ‘‘Rooms or establishes this intent as a single Response: FSIS does not agree that compartments in which edible product performance standard applicable to both specific requirements for establishment is processed, handled, or stored must be meat and poultry establishments, which design and construction are necessary to separate and distinct from rooms or is wholly consistent with the purpose of ensure that meat and poultry are not compartments in which inedible the current regulations. adulterated. FSIS is adopting product is processed, handled, or It also is important to note that FSIS performance standards for construction stored, to the extent necessary to is not rescinding the specific light that provide establishments, regardless prevent product adulteration and the intensity requirements for inspection of size, the flexibility to design facilities creation of insanitary conditions.’’ program employee and reprocessing and equipment in the manner they Light: Proposed § 416.2(c) stations set out in §§ 307.2 and 381.36. deem best to maintain the required FSIS has determined that these specific sanitary environment for food Comment: A few commenters requirements are still necessary to production. Further, as stated above, if opposed the proposed performance ensure appropriate conditions for establishments are maintaining sanitary standard that establishments provide effective inspection. conditions, there is no reason to believe ‘‘Lighting of good quality and sufficient that they will not be in compliance with intensity to ensure that sanitary Ventilation: Proposed § 416.2(d) the new performance standards for conditions are maintained and that Comment: FSIS proposed that meat design and construction, as long as their product is not adulterated * * *’’ and poultry establishments provide facilities are maintained in good repair. These commenters maintained that by ‘‘ventilation adequate to eliminate Also, as stated above, they may follow allowing establishments to determine odors, vapors, and condensation.’’ the recommendations in the Food Code whether light quality and intensity is Several commenters maintained that it or the national building and sufficient, FSIS, in fact, would be would be impossible for establishments construction codes, many of which have allowing establishments to provide to ‘‘eliminate’’ odors, vapors, and been adopted as requirements by State lighting that is not sufficient to ensure condensation. They suggested that the and local governments. If sanitation. One commenter doubted that standard be revised to require that establishments do so, they should be in establishments would follow the ventilation be adequate to control odors, compliance with the standards. recommendations for lighting contained vapors, and condensation to the extent Comment: One commenter requested in the Food Code, as suggested by FSIS. necessary to prevent the adulteration of that FSIS delete the examples of vermin Another commenter recommended that product. given in proposed § 416.2(b)(3): ‘‘Walls, FSIS maintain the existing 30-foot Response: FSIS agrees and has revised floors, ceilings, doors, windows, and candle requirement for light intensity at the standard to require that ventilation other outside openings must be poultry working surfaces and extend the be adequate to control odors, vapors,
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.113 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56405 and condensation to the extent with FSIS regulations, State and local or local governments would test such necessary to prevent adulteration of laws, and the Food Code. Required prior wells for potability. If an establishment product and to prevent the creation of approval of these systems undercuts this uses a private well, FSIS is requiring insanitary conditions which can lead to objective and would deprive that the establishment make available to product adulteration. establishments of the flexibility to FSIS documentation, renewed at least innovate and create sound, effective semi-annually, certifying the potability Plumbing and Sewage Disposal: plumbing and sewage systems that of its private well water. Most Proposed §§ 416.2(e) and (f) ensure sanitary operating conditions. establishments will obtain this Comment: In the preamble to the FSIS will continue to verify, through documentation from private proposed rule, FSIS recommended that inspection, that plumbing and sewage laboratories. establishments consult the National systems neither adulterate product nor FSIS is finalizing this requirement Plumbing code when designing or create insanitary conditions. concerning the potability of well water building a plumbing system and stated in response to the above comment. that ‘‘a plumbing system in compliance Water Supply and Reuse: Proposed Although the Agency did not with the National Plumbing Code in § 416.2(g) specifically propose this approach, it is most instances would meet the Comment: One commenter believed consistent with the proposal, which proposed performance standards for that FSIS suggested in the preamble to focused on how to ensure the potability plumbing.’’ One commenter supported the proposal that compliance with the of water used in all establishments. the use of the National Plumbing Code EPA standard for water potability might Moreover, it is not a new requirement. by establishments but questioned not be sufficient to ensure that water It is the codification of a policy that whether there were certain provisions in used by meat and poultry FSIS has been enforcing under FSIS the Code that FSIS has determined establishments is potable. Directive 11,000.1, the ‘‘Sanitation would be inadequate to meet the Response: FSIS proposed a water Handbook for Meat and Poultry performance standard. supply performance standard intended Inspection.’’ This Directive was Response: FSIS has not determined to make transparent the current rescinded by FSIS Notice 3–98 on that any of the provisions of the requirement that potable water comply January 16, 1998. Another FSIS National Plumbing Code are with EPA’s National Primary Drinking document concerning this policy, inappropriate or inadequate as models Water regulations. These regulations are entitled ‘‘Approved Water Systems,’’ for plumbing systems in meat and promulgated under section 1412 of the will be rescinded upon the effective poultry establishments. However, Public Health Service Act, as amended date of this rule. compliance with the National Plumbing by the Safe Drinking Water Act, and are Comment: Several commenters Code or any other code does not applicable to public water systems. The objected to the proposed performance necessarily establish compliance with EPA standard of water potability is standards for water reuse because, they FSIS regulations. For instance, it could sufficient and FSIS is adopting the argued, the proposed standards would be possible to build a plumbing system performance standard as proposed. allow establishments to wash raw that meets the standards of the National Comment: Another commenter product, equipment, and utensils with Plumbing Code but also creates questioned the proposed requirement non-potable water, and the possibility of insanitary conditions that could cause that establishments make available to product adulteration would therefore be the adulteration of product. FSIS FSIS any water reports ‘‘issued under greatly increased. One commenter continues to recommend that meat and the authority of the State health agency, suggested that FSIS require water to be poultry establishments consult the certifying or attesting to the quality of ‘‘heat pasteurized’’ before reuse on raw National Plumbing Code when the water supply.’’ The commenter or ready-to-eat product. designing or building a plumbing argued that this requirement would be Response: In many circumstances, system, but also encourages ineffective as an indicator of water establishments can reuse water in a establishments to keep in mind the potability unless FSIS specified the manner that will neither adulterate relevant requirements of FSIS, other frequency at which an establishment product nor create insanitary Federal Agencies, and State and local must have its water supply tested. conditions. FSIS already permits certain governments. Response: The EPA National Primary uses of nonpotable water. For example, Comment: A few commenters Drinking Water regulations, contained water is recirculated in tanks to chill opposed the removal of requirements in 40 CFR part 141, require testing of raw poultry; water treated by an that features of plumbing and sewage drinking water for fecal coliforms and advanced wastewater treatment system systems, such as traps and vents, be other contaminants at specified can be used to wash equipment or raw prior-approved by FSIS program frequencies. Because FSIS is requiring product, if followed by a potable water employees for safety and efficacy. that water used by meat and poultry rinse; and nonpotable, reuse water can Response: As the Agency has stated establishments meet the EPA be used to wash floors or equipment in throughout this document, FSIS requirements, which include testing areas where edible product is not fundamentally disagrees with those requirements, FSIS does not need to handled. FSIS is making final commenters who oppose the promulgate separate testing performance standards that will provide elimination of prior approval requirements. Certifications of water for the reuse of water in numerous requirements. It is the responsibility of potability provided by State or local processing contexts, provided that the the establishment to ensure that governments or other responsible establishment takes actions necessary to plumbing and sewage systems provide entities will show whether water meets ensure that product is not adulterated an adequate supply of potable water for the EPA requirements. by the water and that sanitation is not processing and other purposes and Some meat and poultry compromised. Establishments are move waste and sewage from the establishments use private wells for required to document and monitor establishment without adulterating their water supply. EPA classifies water reuse activities either in their product or creating insanitary private wells as ‘‘noncommunity’’ water Sanitation SOP’s or HACCP plans. conditions. There are many ways to sources and does not require testing for Comment: One commenter expressed achieve these goals that are consistent potability. It also is unlikely that State concern about the proposed requirement
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This commenter and others Comment: Numerous commenters more than one person at a time, can be stated that the stated goal of the opposed the proposed performance locked from the inside, and contain at performance standards for water, standard concerning the number of least one water closet, separate toilet rooms for each sex need not be processing solution, and ice reuse lavatories and toilet facilities in official provided.’’ For consistency with this should be to prevent meat and poultry establishments: OSHA requirement, FSIS has removed products from becoming adulterated by Dressing rooms, toilet rooms, and urinals pathogens, rather than preventing water, the proposed provision requiring must be sufficient in number, ample in size, separate lavatories and toilet facilities. ice, or solutions from being conveniently located, and maintained in a contaminated with pathogens, fecal sanitary condition and in good repair at all Equipment and Utensils: Proposed coliforms, and other hazardous times to ensure cleanliness of all persons § 416.3 handling any product. They must be separate substances. These commenters Comment: Numerous commenters maintained that establishments will from the rooms and compartments in which products are processed, stored, or handled. objected to the proposed elimination of control pathogens in the processing Where both sexes are employed, separate the requirement in §§ 308.3(d)(4) and environment, in this case water, through facilities must be provided. 308.8 that utensils and equipment used HACCP and Sanitation SOP’s and to dress diseased meat carcasses be These commenters claimed that many recommended that the performance cleaned with either 180 (°F water or an establishments have crowded, standards for water, ice, and solutions approved disinfectant. Several insanitary conditions now, and, if given reuse be revised accordingly. commenters contended that the use of this performance standard instead of a 180 (°F water has been the method Response: FSIS does not agree with more prescriptive requirement, ‘‘proven’’ to be effective for sanitizing the commenters’ suggestion. In many establishments would not provide a implements. These commenters cases, the presence of fecal coliforms, sufficient number of lavatories and submitted no supporting data, however. pathogens, or other contaminants in toilet facilities. One commenter, A few commenters recommended that reuse water, ice, or processing solutions however, argued that the standard is, in FSIS require a minimum water indicates insanitation that may, in fact, fact, too prescriptive in that it requires temperature of at least 155 °F to 160 °F, lead to the adulteration of meat and separate facilities for both sexes. This as water in this temperature range is poultry products. The control of commenter stated that Federal, State, purported to kill E. coli O157:H7. pathogens in water used in processing, and local labor laws already provide for Several commenters questioned the therefore, is essential for ensuring that this. studies cited by FSIS as support for meat and poultry products do not Response: As the Agency has stated rescinding the 180 °F requirement. become adulterated. The performance throughout this document, it is prudent These commenters recommended that standards establish the necessary and reasonable to replace prescriptive FSIS commission or conduct a new conditions to ensure that water, ice, and sanitation requirements with study to determine the water solution reuse do not compromise performance standards that articulate temperature that is most effective for the objectives or results that sanitation or cause the adulteration of controlling bacteria in a slaughter establishments must achieve. Thus, product. Establishment Sanitation SOP’s environment. Finally, one commenter FSIS is replacing the prescriptive ° and HACCP plans must provide for argued that by rescinding the 180 F requirements concerning establishment water requirement, FSIS is contradicting compliance with these sanitation lavatories, toilet facilities, and their standards. its other policy of ‘‘promoting’’ the use sanitation with a performance standard. of steam cabinets as a processing step to Ice and Solution Reuse: Proposed Furthermore, other Federal law already kill bacteria. § 416.2(h) does govern lavatories and toilet Response: For HACCP systems to be facilities in places of employment. effective, meat and poultry Comment: Several commenters The Occupational Safety and Health establishments must be afforded the maintained that the hazards inherent in Administration (OSHA) of the flexibility to take whatever actions are ice and solution reuse were identical to Department of Labor has promulgated necessary to produce safe products. those in water reuse and suggested, regulations concerning toilet facilities in Meat establishments must determine therefore, that the performance the workplace in 29 CFR 1910.141, what is necessary, in the particular standards be combined for consistency. ‘‘Sanitation.’’ Paragraph (c)(1)(i) of this context of their processing environment, regulation sets forth requirements for Response: FSIS agrees and has made to clean implements used to dress the number of toilet facilities in all diseased carcasses so that those final a single set of reuse performance permanent places of employment. implements will not adulterate product. standards applicable to water, ice, and Official meat and poultry Under the performance standard, many solutions. However, because of the establishments are governed by these meat establishments are likely to different physical characteristics and requirements. Thus, FSIS has continue using 180 °F water for this uses of water, ice, and solutions, it is determined that it is not necessary to purpose, but others will use different expected that establishments will meet add a more specific provision regarding means that they will have determined the performance standards for these the number of toilets to the performance are more suitable and as effective. substances in different ways. For standard it proposed. The studies summarized by FSIS in example, an establishment recirculating In regard to the issue of requiring the proposal raise significant questions water in a chill tank for raw poultry separate toilet facilities for men and about the efficacy of 180 °F water for the might add chlorine to the water to women, OSHA also has set forth cleaning of implements used to dress reduce the number of pathogens. An requirements, again in 29 CFR diseased carcasses. FSIS cited these establishment reusing ice to chill raw 1910.141(c)(1)(i): ‘‘toilet facilities, in studies to emphasize that this poultry might bag the ice to prevent it toilet rooms separate for each sex, shall prescribed treatment may not be from contacting product. be provided in all places of effective in every processing
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.115 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56407 environment and, therefore, that a Food Contact Surface Cleaning and food-contact surfaces of facilities, performance standard would be more Sanitation: Proposed § 416.4(a) equipment, and utensils used in the appropriate for ensuring that meat Comment: Numerous commenters operation of the establishment must be establishments maintain proper objected to the proposed requirement cleaned and sanitized as frequently as sanitation within their operations. FSIS that ‘‘all food-contact surfaces, necessary to prevent the creation of is not planning to conduct or sponsor including food-contact surfaces of insanitary conditions and the any additional studies at this time, but utensils and equipment, must be adulteration of product.’’ Obviously, certainly will evaluate any research cleaned daily prior to starting during the normal course of an establishment’s operations, meat and developments in this area. operations * * * .’’ Commenters poultry products should not come in Finally, FSIS has endorsed the use of stated that many establishments contact with ‘‘non-food contact steam pasteurization as an antimicrobial currently operate successfully for surfaces.’’ Therefore, as long as such treatment for the surfaces of meat extended periods (more than 24 hours), contact did not occur, it would be cleaning and sanitizing as necessary. carcasses. FSIS has not prescribed, unlikely that these surfaces would ever Also, several commenters noted that however, a specific temperature for the directly adulterate product. However, if certain types of equipment, such as blast steam or a specific method for its non-food contact surfaces are freezers and high temperature ovens, application. Similarly, FSIS will no insufficiently cleaned or sanitized, can be operated over extended periods longer require a specific method for the insanitary conditions within the cleaning of implements used to dress without posing a significant food safety establishment can result, potentially diseased carcasses. risk. Finally, a few commenters leading to product adulteration. FSIS Comment: Several commenters suggested that an establishment’s has revised this performance standard Sanitation SOP or HACCP plan should opposed the proposed performance by deleting the specific reference to dictate frequency of cleaning food standard regarding equipment and FSIS ‘‘physical, chemical, or biological contact surfaces. inspection program employees: contamination’’ and by requiring that Response: FSIS agrees that it is ‘‘Equipment and utensils must not non-food contact surfaces be cleaned possible for an official establishment to interfere with inspection procedures or and sanitized as necessary to prevent safely operate for an extended period interfere with inspection by FSIS the creation of insanitary conditions and (more than 24 hours) without re- inspection personnel.’’ These the adulteration of product. sanitizing all food contact surfaces. It is commenters argued that this standard is Comment: One commenter claimed also true that more frequent sanitizing unnecessary because the general that non-food contact surfaces in may be necessary. Accordingly, FSIS is requirement that establishments not establishments, such as floors, drains, finalizing a performance standard for interfere with FSIS inspection is and walls, are highly contaminated. operational sanitation requiring that implicit in all of the regulations. This commenter suggested that FSIS ‘‘All food-contact surfaces, including revise the performance standard to Response: The FMIA, PPIA, and the food-contact surfaces of utensils and require daily cleaning and sanitizing of regulations specifically prohibit the equipment, must be cleaned and non-food contact surfaces. forcible interference with FSIS program sanitized as frequently as necessary to Response: In many establishments, employees performing inspection or any prevent the creation of insanitary daily cleaning and sanitizing of non- other duties prescribed by the FMIA, conditions and the adulteration of food contact surfaces may not be PPIA, or the regulations. Moreover, the product.’’ The regulation, as revised, is necessary for the maintenance of requirement that establishments not consistent with the Sanitation SOP and sanitary conditions or the prevention of interfere with FSIS inspection is HACCP requirements. Establishments product adulteration. FSIS will not, implicit throughout FSIS regulations. must comply with the Sanitation SOP therefore, mandate specific time However, it is important to establish a requirements regarding food contact intervals for this requirement. If the performance standard regarding the surfaces in § 416.12(c): ‘‘Procedures in conditions in an establishment are such inspection of the sanitary condition of the Sanitation SOP’s that are to be that floors, drains, walls, and other non- equipment. Equipment in an official conducted prior to operations shall be food contact surfaces are highly establishment must not be constructed identified as such, and shall address, at contaminated on a regular basis, the or operated in a manner that would a minimum, the cleaning of food contact establishment may need to provide for prevent FSIS inspection program surfaces of facilities, equipment, and the appropriate frequency of cleaning employees from determining whether utensils.’’ and sanitizing of those surfaces in either the equipment is in sanitary condition. its HACCP plan or Sanitation SOP’s. If meat or poultry processing equipment Non-Food Contact Surface Cleaning and Sanitation: Proposed § 416.4(b) FSIS is confident that insanitary is built, located, or operated in a manner conditions of non-food contact surfaces that prevents it from being inspected to Comment: Several commenters stated in official establishments will be determine whether it has been cleaned that the language proposed for the detected by FSIS inspection program or sanitized so as to ensure that it will performance standard for non-food employees during verification of an not be the cause of product adulteration, contact surfaces was unnecessarily establishment’s HACCP plans and FSIS may withhold the mark of prescriptive and inconsistent with the written Sanitation SOP’s. inspection from product processed other performance standards because it using that equipment. FSIS has revised required that such surfaces be cleaned Cleaning Compounds and Sanitizers: the proposed performance standard, as ‘‘as necessary to prevent the physical, Proposed § 416.4(c) follows, to clarify this intent: chemical, or biological contamination or FSIS proposed to eliminate the ‘‘Equipment and utensils must not be adulteration of product,’’ rather than regulatory requirements mandating that constructed, located, or operated in a simply to prevent adulteration of certain nonfood compounds and manner that prevents FSIS inspection product. proprietary substances be approved by program employees from inspecting Response: FSIS agrees and has revised the Agency prior to their use. equipment or utensils to determine the standard to be consistent with the Specifically, FSIS proposed to rescind whether they are in sanitary condition.’’ revised standard in § 416.4(a): ‘‘Non- the following regulations:
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.116 pfrm03 PsN: 20OCR1 56408 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations
§ 308.3(h)—requirements that FSIS 28, 1997, to November 10, 1997 (FSIS able to consult the List of Proprietary approve pesticides, rodenticides, and Docket 96–037R; 62 FR 55997). Substances and Nonfood Compounds. insecticides prior to use in certain areas On February 13, 1998, FSIS Several commenters contended that of meat establishments; announced in a notice (FSIS Docket No. without the List of Proprietary § 308.8(c)—requirements that FSIS 97–007N; 63 FR 7319) that it did, in Substances and Nonfood Compounds, approve, prior to use, disinfectants used fact, intend to discontinue approving all FSIS inspection program employees will to clean implements that have contacted nonfood compounds and proprietary make inconsistent or arbitrary decisions diseased meat carcasses; and substances prior to their use in official in regard to what compounds § 381.60—requirements that meat and poultry products establishments may use. germicides, insecticides, rodenticides, establishments. FSIS emphasized that it Response: FSIS disagrees. The FMIA detergents, wetting agents, and similar would continue to require that meat and and PPIA require that meat and poultry compounds be approved by FSIS prior poultry products be neither adulterated products be neither adulterated nor to use in poultry establishments. nor misbranded through the misuse of misbranded through the use of FSIS did not propose to discontinue proprietary additives and nonfood proprietary substances and nonfood its policy of approving other proprietary compounds. Further, FSIS also compounds. Meat and poultry substances or nonfood compounds prior explained its plan to maintain a small establishments are responsible for to their use in official establishments. staff with expertise in nonfood ensuring that all proprietary substances As a matter of policy, FSIS has reviewed compounds and proprietary substances. and nonfood compounds are safe for and approved, prior to use, most other This staff will keep abreast of their intended use and used nonfood compounds and proprietary developments in chemical appropriately. In light of these substances, including: branding and manufacturing and use, maintain liaison requirements, FSIS anticipates that tattoo inks; poultry and hog scald with outside organizations that have an establishments considering purchasing agents; rendering agents; certain interest in this matter, and issue and using nonfood compounds or cleaning compounds; paint removers; technical guidance, particularly to small proprietary substances will demand antimicrobial agents; hand washing and meat and poultry plants, as formulation or other information from sanitizing agents; water treatments; circumstances warrant. Finally, FSIS chemical manufacturers before making requested comment on possible purchase decisions. Manufacturers who solvent cleaners; sewer and drain alternatives to the FSIS prior approval fail to provide such information could cleaners; and lubricants. Following its program, including the option of third lose their market share. review, FSIS has listed all approved party review and approval of nonfood FSIS inspection program employees nonfood compounds and proprietary compounds and proprietary substances. will continue to verify that proprietary substances in Miscellaneous Publication The comments FSIS received on this substances and nonfood compounds do Number 1419, List of Proprietary issue, whether in response to the not adulterate meat and poultry Substances and Nonfood Compounds. sanitation proposal, the letter products. Enforcement activities in this Shortly after FSIS published the distributed by the Compounds and regard will include, but will not be proposal to revise the sanitation Packaging Review Branch, or the limited to, direct observation of regulations, FSIS mistakenly released February 13 notice, do not differ establishment operations and inspection information that mischaracterized the substantively. While a few commenters of an establishment’s premises and proposal’s provisions concerning the supported the proposed regulatory and product, as well as sampling of product prior approval of nonfood compounds policy changes, most of the comments for chemical residues, as necessary, and and proprietary substances. On were submitted by chemical review of establishment records. September 11, 1997, the FSIS manufacturers, and most were in Establishments will document the use of Compound and Packaging Review opposition to ending the prior approval proprietary substances and nonfood Branch mailed a notice to chemical program for all nonfood compounds and compounds in a variety of records, manufacturers and other businesses proprietary substances. In response to depending on the nature of the announcing a change of address. the letter, FSIS received 68 comments. compound and its use. FSIS inspection Included with that notice was a Because these commenters believed that program employees will review facsimile of the first page of a proposed they were responding to an FSIS Sanitation SOP’s, HACCP plans, use rule, incorrectly identified as the proposed rulemaking, FSIS maintained directions, pest control certifications, sanitation proposal, FSIS Docket No. their comments on file in the FSIS letters of guarantee, and other materials 96–037P, announcing that the Agency Docket Room. In response to the furnished to establishments by chemical was discontinuing its policy of February 13 notice, FSIS received 35 manufacturers and suppliers. approving all nonfood compounds and comments. Below, FSIS responds to all In response to comments, FSIS is proprietary substances prior to their use of the issues raised in all of the finalizing an additional regulatory in official meat and poultry comments concerning the FSIS plan to requirement in regard to the use of establishments. eliminate the prior approval program. nonfood compounds and proprietary In order to clear up any confusion Comment: The majority of substances in § 416.4(c): regarding the matter, FSIS published a commenters opposed to ending the prior ‘‘Documentation substantiating the notice in the Federal Register (FSIS approval program argued that without safety of a chemical’s use in a food Docket No. 97–062N; 62 FR 55995) prior approval, unscrupulous chemical processing environment must be explaining the situation and correcting manufacturers will market unsuitable available to FSIS inspection program the erroneous information. Further, in and possibly dangerous chemicals to employees for review.’’ FSIS is not order to ensure that the public had meat and poultry establishments and requiring that establishments make ample opportunity to submit comments that the use of such chemicals would available any specific type of on the sanitation proposal and its inevitably lead to the adulteration of documentation since, as stated above, provisions concerning nonfood product. Further, they argued that it documentation substantiating the safety compounds and proprietary substances, would be difficult for FSIS inspection of a chemical varies with the nature and FSIS reopened the comment period for program employees to prevent such intended uses of that chemical. For that proposal for 15 days, from October adulteration since they would not be example, for a pesticide, an
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.117 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56409 establishment should have manufacturers to provide meat and sanitizers. Although some hand documentation showing that the poultry establishments of all sizes with treatments are considered over-the- compound is registered with EPA and data that establish that their compounds counter drug products and therefore the label information for the pesticide. are safe and effective. Likewise, FSIS is regulated by FDA, others are not. For a chemical sanitizer used on food making available guidelines for Response: FSIS does not agree that contact surfaces, an establishment compliance with the sanitation prior approval of these chemicals is should have documentation showing performance standards that explicitly necessary to ensure the safety of meat that the compound complies with the address the appropriate formulation and and poultry products. Meat and poultry relevant Food and Drug Administration safe use of nonfood compounds and establishments have the responsibility (FDA) regulations in 21 CFR 178.1010. proprietary substances. The guidelines of ensuring that the nonfood For an antislip agent, an establishment are based upon the FSIS’s regulatory compounds and proprietary substances may satisfy the regulations with a letter experience, the requirements of other that they use will not adulterate product of guarantee and use instructions from Federal agencies, and the criteria or create insanitary conditions. As the manufacturer certifying that if used previously used by FSIS for reviewing stated above, FSIS will verify that these in accordance with directions, the and approving nonfood compounds and chemicals are being used appropriately compound will neither adulterate proprietary substances. Establishments through inspection, review of product nor create insanitary should refer to those guidelines. documentation substantiating the safety conditions. This documentation Furthermore, although the guidelines of the chemicals, and if necessary, requirement not only will assist FSIS are directed primarily to regulated meat sampling and testing. FSIS anticipates inspection program employees in and poultry establishments, chemical that competition will compel chemical determining whether the use of given manufacturers may find them useful in manufacturers to demonstrate to meat compound is proper and safe, but also developing and marketing their and poultry establishments that their will ensure that meat and poultry products. products are safe and satisfy the establishments have adequately Comment: A few commenters, standards established in these reviewed and evaluated the chemicals including several non-government regulations. used in their food processing standard-setting organizations, strongly Specifically in regard to the use of environments. supported third-party review and hand treatments and sanitizers, FSIS FSIS inspection program employees certification of nonfood compounds and prior approval is unnecessary. Hand may, of course, disallow a specific use proprietary substances. care products formulated with of a chemical in an official Response: FSIS encourages third- chlorhexidene gluconate and intended establishment if documentation is not party standards organizations and to be used as an antimicrobial hand available or is inadequate, if the independent laboratories to develop cleaner or hand sanitizer/dip in food establishment misuses the nonfood systems for testing and certifying handling and processing, as well as compound or proprietary substance, or nonfood compounds and proprietary hand care treatments intended for use as if there is reason to believe a specific substances. Such certification would a ‘‘barrier’’ or ‘‘shield’’ to prevent or use will lead to insanitation or product encourage the development and mitigate human disease by protecting adulteration. FSIS program employees marketing of effective, safe, and skin from exposure to toxic chemicals or will be instructed to direct any innovative products. Chemical pathogenic microorganisms, are questions or concerns regarding the use manufacturers whose products meet considered ‘‘drugs’’ and possibly ‘‘new of nonfood compounds and proprietary FSIS performance standards and other drugs’’ under the Federal Food, Drug, substances to the FSIS Technical agency requirements will have ample and Cosmetic Act (FFDCA). Services Center. Further, FSIS is incentive to publicize the fact that their Consequently, FDA regulates and publishing a new Directive to assist products are approved by third party registers these hand treatments. inspection program employees in organizations or independent Establishments using such chemicals verifying the safety of the use of laboratories. It is not likely that FSIS should keep registrations on file for nonfood compounds and proprietary will officially sanction any particular review by FSIS inspection program substances in official meat and poultry organization’s certification as definitive employees. establishments. evidence of compliance with FSIS Other hand treatments, however, are Comment: Some commenters requirements. However, FSIS would not currently regulated or registered by maintained that small establishments obviously give careful consideration to FDA. It is the responsibility of lack the resources and technical valid third-party certifications when establishments to ensure that such expertise to determine whether questions arise regarding the safety of a treatments do not adulterate product or chemical compounds are safe and nonfood compound or proprietary create insanitary conditions. As with effective and, therefore, would be substance. other chemicals, FSIS will verify that adversely affected by the elimination of Comment: Several commenters noted hand treatments are being used FSIS review and approval. Several of that some of the nonfood compounds appropriately through inspection, these commenters urged FSIS to provide and proprietary substances previously review of documentation substantiating guidance material to industry approved by FSIS, including general the safety of the chemicals, and if concerning the appropriate formulation cleaners, hand soaps, sewer and drain necessary, sampling and testing. FSIS is and use of nonfood compounds and cleaners, and certain water treatments, publishing guidance on the appropriate proprietary substances. are not, in fact, reviewed or approved by use of hand treatments in the sanitation Response: FSIS does not anticipate other Federal agencies. These performance standards compliance that the elimination of its prior approval commenters contended that, guide. FSIS also is continuing to consult program will substantially affect small consequently, continued review and with FDA regarding the appropriate use meat and poultry establishments. These approval of these compounds by FSIS is of hand treatments, and will modify the establishments are or should be already necessary. In one comment, FDA raised compliance guide in the event of aware of which chemicals have been specific concerns regarding the changes in FDA policies. approved by FSIS. Moreover, proposed discontinuation of prior Comment: One trade association cited competition will compel chemical approval for hand cleaners and concerns regarding labeling and
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.118 pfrm03 PsN: 20OCR1 56410 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations marketing claims for nonfood Response: The Administrator of FSIS intends to propose will take into compounds and proprietary substances has determined that the elimination of account FDA policy regarding previously approved and listed by FSIS. prior approval of nonfood compounds denaturants applied to condemned meat This commenter requested that FSIS and proprietary substances will not and poultry products used for animal explicitly allow manufacturers of have an adverse impact on the feed. Until the FSIS proposal is previously approved chemicals to environment or human health, and published and made final, the market them as such. therefore, that it is not necessary for requirements regarding prior approval Response: FSIS will neither approve FSIS to perform an environmental of denaturants will remain in effect. nor disapprove marketing claims or impact assessment for this action. As Operational Sanitation: Proposed labeling for the nonfood compounds stated above, FSIS is continuing to 416.4(d) and proprietary substances used in require that meat and poultry products establishments. Chemical manufacturers be neither adulterated nor misbranded Comment: Several commenters may market or label their products as through the use of proprietary opposed the proposal to replace with a being previously approved by FSIS, as substances and nonfood compounds performance standard § 381.47(e), long as their claims are truthful and not and that the use of these substances and which required that rooms where misleading, as is required by applicable compounds must not create insanitary mechanical equipment is operated for law. Meat and poultry establishments conditions. FSIS inspection program the deboning of raw poultry be should keep in mind that since FSIS is employees will verify that these maintained at 50 °F or less. FSIS discontinuing its prior approval chemicals are being used appropriately considered this requirement to be overly program for these products, previous and are not adulterating product prescriptive and proposed to allow approval of a product by FSIS does not through inspection, review of establishments to devise their own necessarily mean that it is safer or more documentation substantiating the safety means for limiting microbial growth in effective than a new product that has of the chemicals, and if necessary, their processing operations. not been reviewed and approved. sampling and testing. Other Federal and Commenters claimed that the Documentation required to be state requirements concerning the use, prescriptive temperature requirement is available under the regulation may cite storage, or disposal of these chemicals imperative for preventing microbial that products were previously approved will not be affected by this rule. There growth and contended that small by FSIS for a particular use and that the is no reason to believe, therefore, that establishments lack the resources and formulation of that product has not the discontinuation of the FSIS prior expertise to innovate in this area. changed. This information may facilitate approval program for nonfood Response: As stated in the proposal, decisions by FSIS program employees compounds and proprietary substances in response to requests, FSIS has when reviewing documentation that will allow meat and poultry permitted many establishments to use substantiates the safety of a nonfood establishments to use these chemicals in methods other than reducing ambient compound or proprietary substance. any manner that would have an adverse temperature to control microbial growth Comment: A few commenters argued impact on human health and the in raw poultry. Several establishments that in regard to the proposed environment. have used heat-exchangers connected to elimination of its prior approval Finally, because FSIS has determined the grinding equipment to bring about program, FSIS must perform that this action will not have any an immediate reduction in product environmental impact analyses significant impact on the environment temperature. Use of heat-exchangers on pursuant to the requirements of the or on human health, FSIS has similarly the equipment can more effectively National Environmental Policy Act determined that this action will not reduce product temperature and limit (NEPA, 42 U.S.C. 4321 et seq.) and the have a disproportionately adverse growth of microorganisms than strict Council for Environmental Quality impact on the health of children and is, adherence to the requirement to regulations in 40 CFR parts 1500–1508. therefore, consistent with the intent of maintain a specific room temperature. These commenters noted that FSIS has E.O. 13045. The performance standard for been granted a categorical exclusion operational sanitation will allow from NEPA requirements by USDA Denaturants establishments to devise their own regulation (7 CFR 1b.4), unless ‘‘the During the course of reviewing the means for limiting microbial growth in agency head determines that an action comments, FSIS discovered that it had their processing operations, without may have a significant environmental not proposed to rescind in §§ 314.3 and requesting special approval from the effect.’’ They concluded that the 381.95, which require establishments to Agency. elimination of prior approval for use only prior approved denaturants for Small establishments will not have to nonfood compounds and proprietary condemned meat and poultry, even innovate in this area. If they choose, substances in general, and specifically though FSIS has listed approved small establishments may continue to for pesticides, could have a significant, denaturants in the List of Proprietary maintain the temperature in poultry adverse impact on human health and Substances and Nonfood Compounds. deboning rooms at 50 °F. Since this the environment and therefore that FSIS Denaturants are chemicals used to color measure has been proven to adequately should conduct an environmental or affect condemned meat and poultry control microbial growth in this assessment or impact analysis as products in a manner that readily processing situation, it will continue to required by NEPA. Two commenters identifies them as inedible to meet the performance standard for also claimed that FSIS’s planned establishment employees and FSIS operational sanitation, until new or elimination of its prior approval inspection program employees, so that better data suggest otherwise. program is inconsistent with the intent the product will not be processed, Comment: Also in regard to of E.O. 13045, which encourages shipped, or marketed as edible product. operational sanitation, FSIS proposed Federal agencies to ‘‘identify and assess In the near future, FSIS will publish a the following performance standard: environmental health risks and safety proposal to rescind these prior approval ‘‘Product must be protected from risks that may disproportionately affect requirements for denaturants and contamination or adulteration during children’’ and result from regulatory replace them with a performance processing, handling, storage, loading, action. standard. The standard that FSIS and unloading at and during
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.119 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56411 transportation from official commenters asserted that FSIS ‘‘contamination or’’ also is removed for establishments; ready-to-eat product inspection program employees’ reasons explained above. must be protected from cross- enforcement authority will be weakened Tagging Insanitary Equipment, Utensils, contamination by pathogenic without specific prohibitions against Rooms or Compartments: Proposed organisms.’’ Several commenters argued such actions as ‘‘placing skewers, tags, § 416.6 that the standard regarding cross- or knives in the mouth’’ (§ 308.8(e)). contamination of ready-to-eat product Further, these commenters cited Comment: In regard to tagging was redundant, unnecessary, and only multiple anecdotal examples of insanitary equipment, utensils, rooms or an example of one kind of product employee actions that could lead to the compartments, FSIS proposed that its adulteration. They requested that FSIS adulteration of product. inspection program employees take make final only the first, more general Response: FSIS does not need to such action when they find ‘‘that any standard. specifically enumerate every action by equipment, utensil, room, or Response: FSIS agrees that the establishment personnel that could compartment at an official proposed standard concerning cross- possibly lead to product adulteration or establishment is unclean or that its use contamination is redundant and thus, insanitary conditions. It would, in fact, would be in violation of any of the for clarity, will not finalize it. be impossible to compile such a list of regulations in this subchapter.’’ Several Establishments already are specifically prohibited practices. FSIS program commenters objected to the word required to prevent the cross- employees have always had the ‘‘unclean,’’ arguing that it constituted a contamination of ready-to-eat product authority, and will continue to have the new standard and that its vagueness by the first half of this proposed authority, to take action whenever would lead to highly subjective standard. FSIS also is revising this establishment personnel fail to ensure enforcement by FSIS inspection standard by removing the prohibition that product is not adulterated or fail to program employees. against product contamination, because, maintain sanitary conditions, even if the Response: The proposed language is as explained above, such a standard is problem identified is not specifically not new and, in fact, is almost identical unnecessary. delineated in a regulation. This to the previous tagging regulation, § 308.15. Nevertheless, FSIS agrees that Employee Hygiene: Proposed § 416.5(a) authority remains unchanged under the the regulation can be improved and for Comment: Several commenters argued new performance standard for employee hygiene in § 416.5(a). consistency with the sanitation that the proposed performance requirements has replaced the word standards for employee hygiene were Employee Clothing: Proposed § 416.5(b) ‘‘unclean’’ with the word ‘‘insanitary.’’ too prescriptive. Specifically, these Comment: FSIS proposed a As stated above, under the FMIA and commenters objected to the proposed performance standard requiring that all PPIA, FSIS must take action when an requirement that ‘‘All persons working official establishment operates in a in contact with * * * product- employee outer clothing be readily cleanable. Several commenters from manner that leads to insanitary packaging materials must adhere to conditions and product adulteration. hygienic practices while on duty to industry stated that their employees use disposable clothing, which is both Accordingly, FSIS is revising the prevent adulteration of product.’’ They requirement to state that an FSIS maintained that insanitary contact with sanitary and cost-effective, and requested that FSIS revise the standard inspection program employee will tag certain packaging materials, such as equipment, utensils, rooms, or canned product shipping containers, to specifically allow for the use of disposable clothing. compartments at an official could never lead to product establishment if they are ‘‘insanitary or adulteration. These commenters Response: FSIS agrees that disposable clothing can be appropriately sanitary [their] use could cause the adulteration suggested that FSIS clarify that the of product.’’ standard only applies to ‘‘product- and has revised the standard to read, in contact-packaging.’’ part: ‘‘Aprons, frocks, and other outer Custom Slaughter Establishments Response: Although the unhygienic clothing worn by persons who handle Comment: One commenter suggested handling of certain packaging materials product must be of material that is that the proposed revisions to language that do not come in contact with disposable or readily cleaned.’’ exempting custom establishments from product may not lead to direct Employee Disease: Proposed § 416.5(c) certain sanitation requirements were too contamination of the product contained restrictive, as they would apply only to Comment: FSIS proposed a therein, such handling could contribute custom slaughter operations and not to performance standard requiring that: to the creation of insanitary conditions custom processing operations. within an official establishment. FSIS is Any person who has or appears to have an Response: FSIS agrees. This error was revising the performance standard to illness, open lesion, including boils, sores, or unintentional and the exemption in reflect this concern. The finalized infected wounds, or any other abnormal § 303.1(a)(2)(i) has been revised so as to § 416.5(a) states: ‘‘All persons working source of microbial contamination must be apply to establishments ‘‘that conduct in contact with product, food-contact excluded from any operations which could result in product contamination or custom operations,’’ rather than only to surfaces, and product-packaging adulteration until the condition is corrected. ‘‘establishments conducting custom materials must adhere to hygienic slaughter operations.’’ practices while on duty to prevent One commenter requested that the word adulteration of product and the creation ‘‘illness’’ be replaced with the word Miscellaneous Changes of insanitary conditions.’’ ‘‘disease.’’ In the proposal preceding this final Comment: Conversely, several Response: FSIS agrees and has rule, FSIS stated that it needed ‘‘to commenters opposed rescinding the replaced the word ‘‘illness’’ with the revise all of the cross-references in the existing regulatory prohibitions against phrase ‘‘infectious disease.’’ ‘‘Illness’’ is meat and poultry regulations to reflect specific, unhygienic employee activities a general term that could describe a the proposed deletion of Part 308 and and replacing them with performance disease or condition that is not 381 Subpart H and the proposed standards. As discussed above in the infectious and therefore would pose no addition of new §§ 416.1 through ‘‘General Opposition’’ section, these risk of product adulteration. The phrase 416.6.’’ FSIS is making those revisions
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.119 pfrm03 PsN: 20OCR1 56412 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations in this final rule. References to specific necessary to ensure appropriate Further, in a forthcoming FSIS Directive sanitation requirements contained in conditions for effective inspection. concerning the new performance sections of previous Part 308 or 381 Second, FSIS is revising the standards, FSIS will rescind these Subpart H are replaced with references regulations in §§ 314.2 and 314.4 remaining Directives: to the relevant sanitation performance regarding the adulteration of edible FSIS Directive 11,240.5—Plastic Cone standards in Part 416. meat and poultry product by inedible Deboning Conveyors FSIS also is making a few revisions to meat and poultry products. Specifically, FSIS Directive 11,520.4—Strip Doors in the regulations for consistency with the FSIS is removing references to Part 308 Official Establishments new sanitation performance standards. and converting to performance FSIS Directive 11,540.1—Use of Certain Although FSIS did not propose these standards prescriptive requirements Vehicles as Refrigeration or Dry specific revisions, they are necessary to regarding the prevention of product Storage Facilities avoid conflict within the meat and adulteration through contact with MPI Bulletin 77–34—Chemical poultry inspection regulations. These inedible product or odors from inedible Disinfection in Lieu of 180 deg. °F changes will impose no new regulatory product. These revisions are entirely Water burden on establishments. consistent with the performance MPI Bulletin 77–129—Water First, Section 381.36(c)(1)(viii) of the standards for establishment Conservation and Sanitation poultry regulations states that ‘‘Online construction, operations, and the MPI Bulletin 79–68—Use of Iodine in handrinsing facilities with a continuous suppression of odors. Processing Water flow of water conforming to section MPI Bulletin 81–38—Equipment and 381.51(f) shall be provided for and Elimination of Directives Procedure Requirements for within easy reach of each inspector and Comment: Several commenters Processing Gizzards each establishment helper.’’ Section objected to the proposed rescission of MPI Bulletin 83–14—Monitoring 381.51(f), which will be deleted by this numerous FSIS Directives and Issuances Chlorine Concentration in Official final rule, stated: concerning sanitation in official Establishments MPI Bulletin 83–16—Re-Use of Water or An adequate number of hand washing establishments, particularly FSIS facilities shall be provided in areas where Directive 11,000.1, the ‘‘Sanitation Brine Cooking Solution on Product poultry products are prepared. Hand washing Handbook for Meat and Poultry Following a Heat Treatment facilities accepted in accordance with the Inspection.’’ These commenters claimed As stated above, FSIS is issuing a new procedures set forth in section 381.53 may be that these Directives are needed by FSIS Sanitation Directive to accompany this used in such areas, provided that if hand- inspection program employees to ensure rule. Although the Directive is written activated facilities are used, the hand-contact for FSIS inspector program employees, element must be rinsed automatically with a that establishments maintain adequate sanitation and do not adulterate it will be available to the public. In sufficient volume of water to remove all fat, addition, FSIS also will be issuing a tissue, debris, and other extraneous material product. from the hand contact element after each use. Response: The FSIS Issuances and compliance guide to assist Both hot and cold running water shall be Directives in question are based upon establishments in complying with the available at each inspection station on the the prescriptive sanitation regulations new sanitation performance standards. eviscerating line and shall be delivered that are being rescinded and replaced by through a suitable mixing device controlled Compliance With Executive Order by the inspector. Alternatively, water for this rule. Therefore, retention of these 12866 and the Regulatory Flexibility Act hand washing shall be delivered to such documents would only generate conflict of 1996 inspection stations at a minimum and confusion regarding the sanitation This rule has been determined to be temperature of 65 degrees F. requirements official establishments significant for the purposes of Executive Although FSIS is deleting from must meet and how FSIS inspection Order 12866 and, therefore, has been § 381.36(c)(1)(viii) the reference to the program employees are to enforce these reviewed by the Office of Management deleted § 381.51(f), it is not rescinding new requirements. For consistency with and Budget. the requirements for hand washing the HACCP and Sanitation SOP FSIS is revising and consolidating the facilities at inspection stations in requirements and with the recent sanitation regulations for official meat official poultry establishments. The elimination of prior approval of and poultry establishments, resolving specific requirements for hand washing establishment blueprints and unnecessary differences between similar equipment and water temperatures equipment, FSIS already has rescinded rules for meat and poultry processing, previously contained in § 381.51(f) are the following Directives concerning and converting prescriptive now contained in § 381.36(c)(1)(viii). sanitation (FSIS Notice 3–98; January requirements to performance standards. Similarly, in this final rule, although 16, 1998): This action affects meat and poultry FSIS is replacing with a performance FSIS Directive 7110.4—Liquid Smoke establishments subject to official standard the prescriptive light intensity Re-Use inspection, custom exempt meat and requirements for official poultry FSIS Directive 11,100.1—Sanitation poultry establishments, and consumers. establishments (previous § 381.52), it is Handbook In the proposal preceding this final not rescinding the specific light FSIS Directive 11,000.2—Plant action, FSIS requested comment intensity requirements for inspector and Sanitation concerning the potential economic reprocessing stations currently FSIS Directive 11,000.4—Paints and effects of the proposed sanitation contained in §§ 307.2 and 381.36. FSIS Coatings in Official Establishments performance standards. FSIS has determined that although official FSIS Directive 11,210.1—Protecting specifically requested information that establishments are responsible for Potable Water Supplies on Official would allow the Agency to determine determining what light intensities and Premises the number and kind of small entities types of hand washing equipment are FSIS Directive 11,220.2—Guidelines for that may incur benefits or costs necessary to maintain sanitary Sanitization of Automatic Poultry resulting from issuance of this final rule. conditions, the specific requirements for Eviscerating Equipment FSIS received no comments that light intensities and hand washing FSIS Directive 11,520.2—Exposed Heat- specifically addressed this issue. facilities at inspection stations are still Processed Products; Employee Dress However, several commenters opposed
VerDate 12-OCT-99 19:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56413 to the proposed sanitation performance standards since it is not possible to the manufacturers or consumers of most standards maintained that small meat predict exactly how many of these compounds. and poultry establishments do not have establishments will take advantage of FSIS recognizes that certain the resources to innovate in order to the flexibility provided and develop compounds, such as general cleaners take advantage of the flexibility innovative processes and how these and antislip agents, are not currently provided by the performance standards. innovations will reduce costs and regulated or reviewed by any Federal Further, these commenters argued that increase efficiency. However, FSIS sees agency and therefore may not be sold small establishments need prescriptive the potential for a more efficient use of with documentation attesting to the requirements to ensure that they know resources by official establishments. safety and efficacy of their use in food how to maintain sanitary conditions and Also, the possibility of subsequently processing establishments. produce safe, unadulterated products. reduced prices of meat or poultry Manufacturers will be compelled, FSIS disagrees. Establishments currently products are economic factors that therefore, to make such documentation maintaining sanitary conditions may could produce a more efficient use of available to their customers, if they are choose to continue their current resources in the economy as a whole. not doing so already. However, FSIS practices and be assured that they will These effects would be small for estimates that the economic impact of be found in compliance with the new individual firms and consumers, but this requirement on these manufacturers performance standards. In addition, could be substantial in the aggregate. will be minimal. Until the recent FSIS will be making available a Finally, FSIS is restructuring discontinuation of the FSIS prior compliance guide that will contain inspection activities to focus more approval program, these manufacturers much of the information contained in attention on whether establishments had been required to supply FSIS with previous sanitation regulations and maintain a sanitary environment in documentation attesting to the safety of Directives, to assist establishments of all accordance with the Sanitation SOP their products. Now they will instead sizes in meeting the new sanitation requirements and these sanitation make this or similar documentation performance standards. performance standards. This action available to their customers. The In general, the streamlining, should reduce demands on FSIS paperwork burden of this new clarification, and consolidation of the resources which could be redirected to documentation requirement is discussed sanitation regulations should benefit functions more critical to improving below under the section Paperwork FSIS, the regulated industry, and food safety. FSIS anticipates that this Requirements. As an alternative to the proposed consumers. User-friendly regulations restructuring of inspection, along with employing performance standards sanitation performance standards, the these performance standards and the simplify compliance and, therefore, Agency considered proposing more HACCP, Sanitation SOP, and other food should bring about food safety comprehensive and prescriptive safety initiatives, will produce enhancements in individual sanitation regulations. The proposed significant economic and societal establishments. Further, consolidation requirements would then have included benefits by reducing the incidence of of the separate sanitation requirements more prescriptive performance food borne illness. for meat and poultry establishments and standards than those proposed, such as the consequent elimination of In response to comments, FSIS is microbial criteria for recently cleaned unnecessary inconsistencies will better finalizing a new requirement in regard and sanitized food contact surfaces; ensure that enforcement policies are to the use of nonfood compounds and detailed requirements currently consistent and equitable and that proprietary substances in § 416.4(c): contained in Agency guidance competition is enhanced. ‘‘Documentation substantiating the materials, such as an ambient The performance standards allow safety of a chemical’s use in a food temperature requirement for rooms in individual establishments to develop processing environment must be which certain types of food processing and implement customized sanitation available to FSIS inspection program are conducted; and a list of specific procedures other than those currently employees for review.’’ FSIS is not regulatory prohibitions, again largely mandated, as long as those procedures requiring that establishments make drawn from existing regulatory and produce and maintain sanitary available any specific type of guidance material. conditions that meet the performance documentation since the specific The Agency did not choose this more standards. Establishments taking documentation substantiating the safety detailed and prescriptive alternative, advantage of the performance standards of a chemical will almost certainly vary because of the burden it would place on to innovate may benefit from savings as to the nature and use of that industry. The Agency believes that a accrued through increased efficiency. chemical. Most, if not all, of the proliferation of prescriptive standards Since the previously mandated nonfood compounds and proprietary applicable to the establishment sanitation procedures meet the substances used by meat and poultry environment or its features, like ambient performance standards established by establishments already are sold with temperature or microbial characteristics this final rule, establishments may documentation substantiating their of cleaned equipment, would not be a continue employing their current safety and efficacy. Pesticides, for useful addition to the sanitation procedures. There is no discernable example, have labels and performance standards. reason that establishments would incur documentation demonstrating FSIS already has established any additional expenses as a result of registration with EPA; chemical performance standards applicable to this rule. As a matter of fact, FSIS sanitizers used on food contact surfaces meat and poultry products, such as the anticipates that the adoption of these often are accompanied by Salmonella performance standard for sanitation performance standards will documentation, such as letters of raw carcasses and ground product present numerous opportunities for cost guarantee, stating that the compound established in the Pathogen Reduction/ savings and believes that this rule will complies with the relevant FDA HACCP final regulation and the zero have a favorable economic impact on all regulations in 21 CFR 178.1010. tolerance standard for fecal material on establishments, regardless of size. Therefore, FSIS has concluded that the raw carcasses. Achieving these product- It is difficult to quantify the potential finalized documentation requirement based performance standards depends benefits of the sanitation performance will place no new economic burden on on an establishment doing a number of
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The not prescribe exactly which methods, any persons or populations the benefits burden hours reported for Sanitation procedures, or means must be used. of FSIS programs, or subject any persons SOP’s includes the development of Finally, on the issue of whether there or populations to discrimination these corrective actions. Therefore, FSIS should be a list of specific prohibited because of their race, color, or national is requesting OMB to remove the 351 practices retained in the regulations, origin. burden hours approved for the FSIS has concluded that this is not development of rodent and vermin necessary and that such a list could be Executive Order 12988 infestation corrective action reports. misleading. Most of the prohibited This final rule has been reviewed Also, § 416.2(g)(1) requires that practices that are mentioned in the under Executive Order 12988, Civil establishments, upon request, make current sanitation regulations represent Justice Reform. States and local available to FSIS ‘‘water reports issued only one or a small fraction of the ways jurisdictions are preempted by the under the authority of the State or local in which establishments could fail to Federal Meat Inspection Act (FMIA) and health agency certifying or attesting to meet a performance standard. For the Poultry Products Inspection Act the quality of the water supply.’’ This example, using burlap as a wrap by (PPIA) from imposing any marking, paperwork collection requirement directly applying it to the surface of labeling, packaging, or ingredient already is in place under the current meat is only one of the means by which requirements on federally inspected regulations and is approved under OMB an establishment could be failing to meat and poultry products that are in control number O583–0082, ‘‘Meat and prevent product adulteration. The addition to, or different than, those Poultry Inspection and Application for Agency believes that a partial or imposed under the FMIA and the PPIA. Inspection.’’ outdated list of regulatory prohibitions States and local jurisdictions may, Finally, the Agency is adding a new in the regulations could be however, exercise concurrent information collection requirement in misconstrued to mean that anything not jurisdiction over meat and poultry § 416.4(c): ‘‘Documentation on the list is not prohibited. FSIS has products that are within their substantiating the safety of a chemical’s concluded that it is better regulatory jurisdiction and outside official use in a food processing environment policy to communicate to industry establishments for the purpose of must be available to FSIS inspection examples of the types of practices that preventing the distribution of meat and program employees for review.’’ FSIS is not requiring that establishments make could result in insanitary conditions in poultry products that are misbranded or available any specific type of guidance material. adulterated under the FMIA and PPIA, The other alternative available to FSIS documentation since documentation or, in the case of imported articles, that was to maintain the previous sanitation substantiating the safety of a chemical are not at such an establishment, after requirements. However, as explained in varies as to the nature and use of that their entry into the United States. detail above, these requirements were to chemical. Further, most, if not all, of the an extent inconsistent with the This rule is not intended to have nonfood compounds and proprietary principles of HACCP, needlessly retroactive effect. substances used by meat and poultry reduced flexibility in accomplishing Under this rule, administrative establishments already are sold with good sanitation, and may have proceedings will not be required before documentation substantiating their substantially impeded innovation. parties may file suit in court challenging safety and efficacy. Nevertheless, this rule. However, the administrative manufacturers will be compelled to Executive Order 12898 procedures specified in 9 CFR 306.5 and make such documentation available to Pursuant to Executive Order 12898 381.35 must be exhausted prior to any their customers, if they are not doing so (59 FR 7629, February 16, 1994), judicial challenge of the application of already. FSIS estimates that the impact ‘‘Federal Actions to Address the provisions of this rule, if the of this requirement on these Environmental Justice in Minority challenge involves any decision of an manufacturers will be quite minimal, Populations and Low-Income FSIS employee relating to any matters since until the recent discontinuation of Populations,’’ FSIS has considered under the FMIA and the PPIA. the FSIS prior approval program, these potential impacts of this final rule on Paperwork Requirements manufacturers had been required to environmental and health conditions in supply FSIS with documentation low-income and minority communities. Abstract: FSIS has reviewed the attesting to the safety of their products. This rule consolidates the sanitation paperwork and recordkeeping FSIS estimates that there are regulations for official meat and poultry requirements in this proposed rule in approximately 8,000 chemical establishments into a single part, accordance with the Paperwork manufacturers selling about 115,000 eliminates unnecessary differences Reduction Act. compound and substances to official between the meat and poultry sanitation Under the previous regulations, if meat and poultry establishments. There requirements, and converts many highly meat and poultry establishments were are approximately 6,186 official meat prescriptive requirements to sanitation cited for rodent or vermin infestation, and poultry establishments. The performance standards. As explained in FSIS required them to develop a written following calculations were based upon the economic impact analysis above, the corrective action report. The Office of the assumption that each chemical new regulations should generally Management and Budget (OMB) under manufacturer sells, and each official benefit FSIS, the regulated industry, and control number O583–0082, ‘‘Meat and establishment uses, an average of 14 consumers. The regulations do not Poultry Inspection and Application for compounds and substances. require or compel meat or poultry Inspection,’’ had approved 351 burden Estimate of Burden: The public establishments to relocate or hours for this activity. reporting burden for this collection of
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.122 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56415 information is estimated to average 30 Accordingly, title 9, chapter III, of the § 307.2 Other facilities and conditions to minutes for chemical manufacturers to Code of Federal Regulations is amended be provided by the establishment. provide documentation and 10 minutes as follows: * * * * * for establishments to file the (l) Sanitary facilities and information. PART 303ÐEXEMPTIONS Respondents: Meat and poultry accommodations as prescribed by establishments and chemical 1. The authority citation for part 303 §§ 416.2(c), (d), (e), (f), and (h) of this manufacturers. continues to read as follows: chapter. Estimated Number of Respondents: Authority: 21 U.S.C. 601–695; 7 CFR 2.17, * * * * * 2.55. 14,186. 8. Section 307.3 is revised to read as Estimated Number of Responses per 2. Section 303.1 is amended by follows: Respondent: 14. revising paragraph (a)(2)(i) to read as Estimated Total Annual Burden on follows: § 307.3 Inspectors to furnish and maintain Respondents: 132,403 hours. implements in a sanitary condition. Copies of this information collection § 303.1 Exemptions. Inspectors shall furnish their own assessment can be obtained from Lee (a) * * * Puricelli, Paperwork Specialist, Food work clothing and implements, such as (2) * * * Safety and Inspection Service, USDA, flashlights and triers, for conducting Cotton Annex Building, Room 109, (i) Establishments that conduct inspection and shall maintain their Washington, DC 20250. custom operations must be maintained implements in sanitary condition as Comments are invited on: (a) Whether and operated in accordance with the prescribed by § 416.3(a) of this chapter. provisions of §§ 416.1 through 416.6, the collection of information is 9. Section 307.7, paragraph (a), is except for: § 416.2(g) (2) through (6) of necessary for the proper performance of revised to read as follows: the functions of the Agency, including this chapter, regarding water reuse and whether the information will have any provisions of part 416 of this § 307.7 Safety requirements for electrical practical utility; (b) the accuracy of the chapter relating to inspection or stimulating (EST) equipment. supervision of specified activities or Agency’s estimate of the burden of the (a) General. Electrical stimulating proposed collection of information other action by a Program employee. If custom operations are conducted in an (EST) equipment is equipment that including the validity of the provides electric shock treatment to methodology and assumptions used; (c) official establishment, however, all of the provisions of Part 416 of this chapter carcasses for the purpose of accelerating ways to enhance the quality, utility, and rigor mortis of facilitating blood clarity of the information to be of shall apply to those operations. removal. These provisions do not apply collected; and (d) ways to minimize the * * * * * to electrical equipment used to stun burden of the collection of information and/or slaughter animals or to facilitate on those who are to respond, including § 303.1 [Amended] hide removal. Electrical stimulating through the use of appropriate 3. In § 303.1, paragraph (c), the second equipment consists of two separate automated, electronic, mechanical, or sentence is amended by removing the other technological collection phrase ‘‘in part 308 of this subchapter, pieces—the control system and the techniques or other forms of information except §§ 308.1, 308.2, and 308.15’’ and applicator. The EST control system technology. Comments may be sent to adding the phrase ‘‘in part 416, §§ 416.1 contains the circuitry to generate pulsed Lee Puricelli, Paperwork Specialist (see through 416.5 of this chapter’’ in its DC or AC voltage for stimulation and is address above) or the Desk Officer for place. separate from the equipment used to Agriculture, Office of Information and apply the voltage to the carcass. The Regulatory Affairs, Office of PART 304ÐAPPLICATION FOR voltage is applied by inserting a probe Management and Budget, Washington, INSPECTION; GRANT OR REFUSAL that penetrates the carcass or is inserted DC 20253. OF INSPECTION in the rectum, placing a clamp in the Comments are requested by December nose, a carcass rub-bar, a conveyor with 20, 1999. To be most effective, 4. The authority citation for part 304 energized surfaces traveling with the comments should be sent to OMB continues to read as follows: carcass, or any other acceptable method. within 30 days of the publication date Authority: 21 U.S.C. 601–695; 7 CFR 2.18, * * * * * of this final rule. 2.53. PART 308Ð[REMOVED AND § 304.2 [Amended] List of Subjects RESERVED] 9 CFR Parts 303, 304, and 307 5. In § 304.2(b), the first sentence is amended by removing the phrase ‘‘308’’ 10–11. Remove and reserve part 308, Meat inspection, Reporting and record and adding the phrase ‘‘Part 416, consisting of §§ 308.1–308.16. keeping requirements. §§ 416.1 through 416.6 of this chapter’’ 9 CFR Part 308, 312, 314, 327,, 331, and in its place. PART 312ÐOFFICIAL MARKS, 350 DEVICES AND CERTIFICATES Part 307ÐFACILITIES FOR Meat inspection. INSPECTION 12. The authority citation for part 312 9 CFR Part 381 6. The authority citation for part 307 continues to read as follows: Poultry and poultry products continues to read as follows: Authority: 21 U.S.C. 601–695; 7 CFR 2.17, inspection, Reporting and record Authority: 7 U.S.C 394, 21 U.S.C. 601–695; 2.55. keeping requirements. 7 CFR 2.17, 2.55. 13. In § 312.6, paragraphs (a), and 9 CFR Part 416 7. Section 307.2 is amended by introductory text and (a)(3) are revised Sanitation. revising paragraph (l) to read as follows: to read as follows:
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§ 312.6 Official marks and devices in 308.3, 308.4, 308.5, 308.6, 308.7, 308.8, 27. Section 381.36, is amended as connection with post-mortem inspection 308.9, 308.11, 308.13, 308.14, 308.15’’ follows: and identification of adulterated products and adding the phrase ‘‘416.1 through a. Paragraph (c)(1)(iv) is revised, and insanitary equipment and facilities. 416.6 of this chapter’’ in its place. b. Paragraph (c)(1)(vi), is amended by (a) The official marks required by removing the phrase ‘‘complying with parts 310 and 416 of this chapter for use PART 331ÐSPECIAL PROVISIONS § 381.53(g)(4) of this part’’, in post-mortem inspection and FOR DESIGNATED STATES AND c. Paragraphs (c)(1)(vii), (viii) and (x) identification of adulterated products TERRITORIES; AND FOR are revised, and insanitary equipment and facilities DESIGNATION OF ESTABLISHMENTS d. In Paragraph (d)(1)(vi), the first are: WHICH ENDANGER PUBLIC HEALTH sentence is amended by removing the * * * * * AND FOR SUCH DESIGNATED phrase ‘‘complying with § 381.53(g)(4) (3) The ‘‘U.S. Rejected’’ mark which is ESTABLISHMENTS of this part’’, used to identify insanitary buildings, e. In paragraph (d)(1)(viii), the first 19. The authority citation for part 331 rooms, or equipment as prescribed in sentence is amended by removing the continues to read as follows: part 416, § 416 of this chapter and is phrase ‘‘, notwithstanding the applied by means of a paper tag (Form Authority: 21 U.S.C. 601–695; 7 CFR 2.17, requirement of § 381.52(b)’’, MP–35) bearing the legend ‘‘U.S. 2.55. f. Paragraph (d)(1)(xi) is revised, Rejected.’’ 20. Section 331.3, paragraph (c), is g. In paragraph (e)(1)(v), the first sentence is amended by removing the * * * * * revised to read as follows: phrase ‘‘complying with § 381.53(g)(4)’’, PART 314ÐHANDLING AND § 331.3 States designated under paragraph and DISPOSAL OF CONDEMNED OR § 301(c) of the Act; application of h. Paragraph (e)(1)(ix) is revised. regulations. OTHER INEDIBLE PRODUCTS AT These revisions to § 381.36 read as OFFICIAL ESTABLISHMENTS * * * * * follows: (c) Sections 416.2(c), (d), (e), (f), and 14. The authority citation for part 314 (h) of this chapter shall apply to such § 381.36 Facilities required. continues to read as follows: establishments. * * * * * (c) * * * Authority: 21 U.S.C. 601–695; 7 CFR 2.17, * * * * * 2.55. (1) * * * PART 350ÐSPECIAL SERVICES (iv) Each inspector’s station shall have 15. Section 314.2 is revised to read as RELATING TO MEAT AND OTHER a platform that is slip-resistant and can follows: PRODUCTS be safely accessed by the inspector. The § 314.2 Tanking and other facilities for platform shall be designed so that it can inedible products to be separate from 21. The authority citation for part 350 be easily and rapidly adjusted for a edible product facilities. continues to read as follows: minimum of 14 inches vertically while All tanks and equipment used for Authority: 21 U.S.C. 1622, 1624; 7 CFR standing on the platform. The platform rendering, otherwise preparing, or 2.17, 2.55. shall be a minimum length of 4 feet and have a minimum width of 2 feet; the storing inedible products must be in § 350.3 [Amended] rooms or compartments separate from platform shall be designed with a 42- those used for preparing or storing 22. Section 350.3, paragraph (a)(2) is inch high rail on the back side and with edible products. There may be a amended by removing the phrase ‘‘part 1⁄2-inch foot bumpers on both sides and connection between rooms or 308’’ and adding the phrase ‘‘part 416, front to allow safe working conditions. compartments containing inedible §§ 416.1 though 416.6 of this chapter’’ The platform must have a safe lift products and those containing edible in its place. mechanism and be large enough for the products as long as it does not cause the inspector to sit on a stool and to change PART 362ÐVOLUNTARY POULTRY stations during breaks or station adulteration of edible product or create INSPECTION REGULATIONS insanitary conditions. rotation. 16. Section 314.4 is revised to read as 23. The authority citation for part 362 * * * * * follows: continues to read as follows: (vii) A minimum of 200-footcandles of shadow-free lighting with a minimum § 314.4 Suppression of odors in preparing Authority: 21 U.S.C. 1622, 1624; 7 CFR 2.17 (g) and (i), 2.55. color rendering index value of 85 where inedible products. the birds are inspected to facilitate Tanks, fertilizer driers, and other § 362.2 [Amended] inspection. equipment used in the preparation of 24. The second sentence of § 362.2(a) (viii) Online handrinsing facilities inedible product must be operated in a is amended by removing the phrase with a continuous flow of water must be manner that will suppress odors ‘‘subchapter C of this chapter’’ and provided for and within easy reach of incident to such preparation which adding the phrase ‘‘subchapter A and each inspector and each establishment could adulterate edible product or subchapter E, part 416, §§ 416.1 through helper. The hand-contact element must create insanitary conditions. 416.6 of this chapter’’ in its place. be rinsed automatically with a sufficient volume of water to remove all fat, tissue, PART 327ÐIMPORTED PRODUCTS PART 381ÐPOULTRY PRODUCTS debris, and other extraneous material 17. The authority citation for part 327 INSPECTION REGULATIONS from the hand contact element after continues to read as follows: 25. The authority citation for part 381 each use. Both hot and cold running Authority: 21 U.S.C. 601–695; 7 CFR 2.18, continues to read as follows: water shall be available at each 2.53. inspection station on the eviscerating Authority: 7 U.S.C. 138f; 7 U.S.C. 450, 21 line and shall be delivered through a § 327.6 [Amended] U.S.C. 451–470; 7 U.S.C. 2.18, 2.53. suitable mixing device controlled by the 18. In § 327.6, paragraph (e) is 26. In § 381.1, paragraph (b)(39) is inspector. Alternatively, water for hand amended by removing the phrase ‘‘ removed. washing shall be delivered to such
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Establishments must have in (4) Provide adequate floor drainage in place a pest management program to all areas where floors are subject to * * * * * flooding-type cleaning or where normal (d) * * * prevent the harborage and breeding of pests on the grounds and within operations release or discharge water or (1) * * * establishment facilities. Pest control other liquid waste on the floor; (xi) Each inspection station shall be substances used must be safe and (5) Prevent back-flow conditions in provided with receptacle for effective under the conditions of use and cross-connection between piping condemned carcasses and parts. Such and not be applied or stored in a systems that discharge waste water or receptacles shall comply with the manner that will result in the sewage and piping systems that carry performance standards in § 416.3(c) of adulteration of product or the creation water for product manufacturing; and (6) Prevent the backup of sewer gases. this chapter. of insanitary conditions. * * * * * (f) Sewage disposal. Sewage must be (b) Construction. (1) Establishment disposed into a sewage system separate (e) * * * buildings, including their structures, from all other drainage lines or disposed (1) * * * rooms, and compartments must be of of through other means sufficient to (ix) Each inspection station shall be sound construction, be kept in good prevent backup of sewage into areas provided with receptacles for repair, and be of sufficient size to allow where product is processed, handled, or condemned carcasses and parts. Such for processing, handling, and storage of stored. When the sewage disposal receptacles shall comply with the product in a manner that does not result system is a private system requiring performance standards in § 416.3(c) of in product adulteration or the creation approval by a State or local health this chapter. of insanitary conditions. authority, the establishment must * * * * * (2) Walls, floors, and ceilings within furnish FSIS with the letter of approval establishments must be built of durable from that authority upon request. §§ 381.45±381.61 (Subpart H)ÐSanitation materials impervious to moisture and be [Removed and reserved] (g) Water supply and water, ice, and cleaned and sanitized as necessary to solution reuse. (1) A supply of running 28. Remove and reserve Subpart H, prevent adulteration of product or the water that complies with the National consisting of §§ 381.45—381.61. creation of insanitary conditions. Primary Drinking Water regulations (40 29. Section 381.99 is revised to read (3) Walls, floors, ceilings, doors, CFR part 141), at a suitable temperature as follows: windows, and other outside openings and under pressure as needed, must be must be constructed and maintained to provided in all areas where required (for § 381.99 Official retention and rejection prevent the entrance of vermin, such as tags. processing product, for cleaning rooms flies, rats, and mice. and equipment, utensils, and packaging The official marks for use in post- (4) Rooms or compartments in which materials, for employee sanitary mortem inspection and identification of edible product is processed, handled, or facilities, etc.). If an establishment uses adulterated products, insanitary stored must be separate and distinct a municipal water supply, it must make equipment and facilities are: from rooms or compartments in which available to FSIS, upon request, a water (a) A paper tag (a portion of Form inedible product is processed, handled, report, issued under the authority of the MP–35) bearing the legend ‘‘U.S. or stored, to the extent necessary to State or local health agency, certifying Retained’’ for use on poultry or poultry prevent product adulteration and the or attesting to the potability of the water products under this section. creation of insanitary conditions. supply. If an establishment uses a (b) A paper tag (another portion of (c) Light. Lighting of good quality and private well for its water supply, it must Form C&MS 510) bearing the legend sufficient intensity to ensure that make available to FSIS, upon request, ‘‘U.S. Rejected’’ for use on equipment, sanitary conditions are maintained and documentation certifying the potability utensils, rooms and compartments that product is not adulterated must be of the water supply that has been under this section. provided in areas where food is renewed at least semi-annually. processed, handled, stored, or (2) Water, ice, and solutions (such as PART 416ÐSANITATION examined; where equipment and brine, liquid smoke, or propylene utensils are cleaned; and in hand- 30. The authority citation for part 416 glycol) used to chill or cook ready-to-eat washing areas, dressing and locker continues to read as follows: product may be reused for the same rooms, and toilets. purpose, provided that they are Authority: 21 U.S.C. 451–470, 601–680; 7 (d) Ventilation. Ventilation adequate maintained free of pathogenic organisms U.S.C. 450; 7 CFR 2.18, 2.53. to control odors, vapors, and and fecal coliform organisms and that 31. Part 416 is amended by adding condensation to the extent necessary to other physical, chemical, and new §§ 416.1 through 416.6, as follows: prevent adulteration of product and the microbiological contamination have creation of insanitary conditions must been reduced to prevent adulteration of § 416.1 General rules. be provided. product. Each official establishment must be (e) Plumbing. Plumbing systems must (3) Water, ice, and solutions used to operated and maintained in a manner be installed and maintained to: chill or wash raw product may be sufficient to prevent the creation of (1) Carry sufficient quantities of water reused for the same purpose provided insanitary conditions and to ensure that to required locations throughout the that measures are taken to reduce product is not adulterated. establishment; physical, chemical, and microbiological
VerDate 12-OCT-99 19:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 56418 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations contamination so as to prevent thorough cleaning and to ensure that garments must be worn at the start of contamination or adulteration of their use will not cause the adulteration each working day and garments must be product. Reuse that which has come of product during processing, handling, changed during the day as often as into contact with raw product may not or storage. Equipment and utensils must necessary to prevent adulteration of be used on ready-to-eat product. be maintained in sanitary condition so product and the creation of insanitary (4) Reconditioned water that has as not to adulterate product. conditions. never contained human waste and that (b) Equipment and utensils must not (c) Disease control. Any person who has been treated by an onsite advanced be constructed, located, or operated in has or appears to have an infectious wastewater treatment facility may be a manner that prevents FSIS inspection disease, open lesion, including boils, used on raw product, except in product program employees from inspecting the sores, or infected wounds, or any other formulation, and throughout the facility equipment or utensils to determine abnormal source of microbial in edible and inedible production areas, whether they are in sanitary condition. contamination, must be excluded from provided that measures are taken to (c) Receptacles used for storing any operations which could result in ensure that this water meets the criteria inedible material must be of such product adulteration and the creation of prescribed in paragraph (g)(1) of this material and construction that their use insanitary conditions until the section. Product, facilities, equipment, will not result in the adulteration of any condition is corrected. and utensils coming in contact with this edible product or in the creation of water must undergo a separate final insanitary conditions. Such receptacles § 416.6 Tagging insanitary equipment, rinse with non-reconditioned water that must not be used for storing any edible utensils, rooms or compartments. meets the criteria prescribed in product and must bear conspicuous and When an FSIS program employee paragraph (g)(1) of this section. distinctive marking to identify finds that any equipment, utensil, room, (5) Any water that has never permitted uses. or compartment at an official contained human waste and that is free establishment is insanitary or that its of pathogenic organisms may be used in § 416.4 Sanitary operations. use could cause the adulteration of edible and inedible product areas, (a) All food-contact surfaces, product, he will attach to it a ‘‘U.S. provided it does not contact edible including food-contact surfaces of Rejected’’ tag. Equipment, utensils, product. For example, such reuse water utensils and equipment, must be rooms, or compartments so tagged may be used to move heavy solids, to cleaned and sanitized as frequently as cannot be used until made acceptable. flush the bottom of open evisceration necessary to prevent the creation of Only an FSIS program employee may troughs, or to wash antemortem areas, insanitary conditions and the remove a ‘‘U.S. Rejected’’ tag. livestock pens, trucks, poultry cages, adulteration of product. Done in Washington, DC on October 6, picker aprons, picking room floors, and (b) Non-food-contact surfaces of 1999. similar areas within the establishment. facilities, equipment, and utensils used Thomas J. Billy, in the operation of the establishment (6) Water that does not meet the use Administrator. conditions of paragraphs (g)(1) through must be cleaned and sanitized as [FR Doc. 99–26983 Filed 10–19–99; 8:45 am] (g)(5) of this section may not be used in frequently as necessary to prevent the areas where edible product is handled creation of insanitary conditions and the BILLING CODE 3410±DM±P or prepared or in any manner that adulteration of product. would allow it to adulterate edible (c) Cleaning compounds, sanitizing product or create insanitary conditions. agents, processing aids, and other DEPARTMENT OF ENERGY (h) Dressing rooms, lavatories, and chemicals used by an establishment toilets. (1) Dressing rooms, toilet rooms, must be safe and effective under the 10 CFR Part 600 and urinals must be sufficient in conditions of use. Such chemicals must RIN 1991±AB53 number, ample in size, conveniently be used, handled, and stored in a located, and maintained in a sanitary manner that will not adulterate product Assistance Regulations; Technical and condition and in good repair at all times or create insanitary conditions. Administrative Amendments to ensure cleanliness of all persons Documentation substantiating the safety handling any product. They must be of a chemical’s use in a food processing AGENCY: Department of Energy. separate from the rooms and environment must be available to FSIS ACTION: Final rule. compartments in which products are inspection program employees for SUMMARY: The Department of Energy processed, stored, or handled. review. (2) Lavatories with running hot and (d) Product must be protected from (DOE) is amending the Department of cold water, soap, and towels, must be adulteration during processing, Energy Assistance Regulations to make placed in or near toilet and urinal rooms handling, storage, loading, and technical and administrative changes. and at such other places in the unloading at and during transportation These changes include: revising a establishment as necessary to ensure from official establishments. definition for clarity, updating titles and cleanliness of all persons handling any addresses, changing an approval § 416.5 Employee hygiene. product. authority, eliminating provisions that (3) Refuse receptacles must be (a) Cleanliness. All persons working contain internal procedures for DOE constructed and maintained in a manner in contact with product, food-contact officials, removing obsolete coverage, that protects against the creation of surfaces, and product-packaging eliminating redundant coverage, and insanitary conditions and the materials must adhere to hygienic correcting a typographical error. These adulteration of product. practices while on duty to prevent changes are technical and adulteration of product and the creation administrative in nature and have no § 416.3 Equipment and utensils. of insanitary conditions. significant impact on non-agency (a) Equipment and utensils used for (b) Clothing. Aprons, frocks, and other persons, such as recipients or processing or otherwise handling edible outer clothing worn by persons who applicants. The uniform administrative product or ingredients must be of such handle product must be of material that requirements for grants and cooperative material and construction to facilitate is disposable or readily cleaned. Clean agreements with institutions of higher
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.126 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56419 education, hospitals, other non-profit appropriately covered in a DOE legal requirement to propose financial organizations, commercial handbook on merit reviews. assistance rules for public comment. organizations, and state and local 7. In § 600.24 Noncompliance, we D. Review Under the Paperwork governments are not changed by this have corrected a typographical error in Reduction Act rule. a cross-reference. No new information or recordkeeping EFFECTIVE DATE: This final rule will be II. Procedural Requirements effective November 19, 1999. requirements are imposed by this rulemaking. Accordingly, no OMB FOR FURTHER INFORMATION CONTACT: A. Review Under Executive Order 12866 clearance is required under the Trudy Wood, Office of Procurement and Today’s regulatory action has been Assistance Policy (MA–51), U.S. Paperwork Reduction Act (44 U.S.C. determined not to be a ‘‘significant 3501 et seq.). Department of Energy, 1000 regulatory action’’ under Executive Independence Avenue, S.W., Order 12866, ‘‘Regulatory Planning and E. Review Under the National Washington, D.C. 20585, telephone 202– Review’’ (58 FR 51735, October 4, 1993). Environmental Policy Act 586–5625. Accordingly, this action is not subject to DOE has concluded that promulgation SUPPLEMENTARY INFORMATION: review under that Executive Order by of this rule falls into a class of actions I. Explanation of Changes the Office of Information and Regulatory which would not individually or II. Procedural Requirements Affairs of the Office of Management and cumulatively have significant impact on A. Review Under Executive Order 12866 Budget (OMB). B. Review Under Executive Order 12988 the human environment, as determined C. Review Under the Regulatory Flexibility B. Review Under Executive Order 12988 by DOE’s regulations (10 CFR part 1021, Act subpart D) implementing the National D. Review Under the Paperwork Reduction With respect to the review of existing Environmental Policy Act of 1969 Act regulations and the promulgation of (NEPA) (42 U.S.C. 4321 et seq.). E. Review Under the National new regulations, section 3(a) of Specifically, this rule is categorically Environmental Policy Act Executive Order 12988, ‘‘Civil Justice excluded from NEPA review because F. Review Under Executive Order 12612 Reform (February 7, 1996)’’ 61 FR 4729, the proposed amendments to the DOE G. Review Under the Unfunded Mandates imposes on Executive agencies the Reform Act of 1995 financial assistance regulation do not general duty to adhere to the following change the environmental effect of the H. Review Under the Treasury and General requirements: (1) Eliminate drafting Government Appropriations Act, 1999 rule being amended (categorical errors and ambiguity; (2) write exclusion A.5). Therefore, this rule does I. Explanation of Changes regulations to minimize litigation; and not require an environmental impact 1. In section § 600.3 Definitions, we (3) provide a clear legal standard for statement or environmental assessment have revised the definition of ‘‘Merit affected conduct rather than a general pursuant to NEPA. review’’ to clarify what constitutes an standard and promote simplification F. Review Under Executive Order 12612 ‘‘independent examination’’ of a and burden reduction. With regard to financial assistance application. the review required by section 3(a), Executive Order 12612 (52 FR 41685, 2. In § 600.4 Deviations, we have section 3(b) of Executive Order 12988 October 30, 1987) requires that updated the title of the authorizing specifically requires that Executive regulations, rules, legislation, and any official. agencies make every reasonable effort to other policy actions be reviewed for any 3. In § 600.6 Eligibility, we have ensure that the regulation: (1) Clearly substantial direct effects on States, on changed the approval authority on a specifies the preemptive effect, if any; the relationship between the National determination that a noncompetitive (2) clearly specifies any effect on Government and the States, or in the award is in the public interest to the existing Federal law or regulation; (3) distribution of power and Secretary, because such determinations provides a clear legal standard for responsibilities among the various are more appropriately made by the affected conduct while promoting levels of Government. If there are Secretary of Energy. simplification and burden reduction; (4) sufficient substantial direct effects, then 4. In § 600.10 Form and content of specifies the retroactive effect, if any; (5) the Executive Order requires the applications, we have updated the adequately defines key terms; and (6) preparation of a federalism assessment address for obtaining a guide for the addresses other important issues to be used in all decisions involved in preparation and submission of affecting clarity and general promulgating and implementing a unsolicited applications and removed draftsmanship under any guidelines policy action. DOE has determined that redundant language. issued by the Attorney General. Section this rule will not have a substantial 5. In § 600.13 Objective merit review, 3(c) of Executive Order 12988 requires direct effect on the institutional we have changed the title to ‘‘Merit Executive agencies to review regulations interests or traditional functions of the review’’ and eliminated provisions in light of applicable standards in States. relating to internal procedures that are section 3(a) and section 3(b) to more appropriately addressed in a DOE determine whether they are met or it is G. Review Under the Unfunded handbook on merit reviews. unreasonable to meet one or more of Mandates Reform Act of 1995 6. Section 600.14 Conflict of interest them. The Department of Energy has The Unfunded Mandates Reform Act is removed because the current completed the required review and of 1995 (Pub. L. 104–4) generally provision is obsolete. Conflict of interest determined that, to the extent permitted requires a Federal agency to perform a requirements for all DOE employees, by law, the regulations meet the relevant detailed assessment of costs and including those who participate in the standards of Executive Order 12988. benefits of any rule imposing a Federal review of applications for DOE financial Mandate with costs to state, local or assistance or in the administration of C. Review Under the Regulatory tribal governments, or to the private financial assistance awards, are covered Flexibility Act sector, of $100 million or more. This in 5 CFR part 2635 and part 2640. This rule is not subject to review rulemaking would not affect state, local Conflict of interest requirements for under the Regulatory Flexibility Act, 5 or tribal governments or private sector non-federal merit reviewers are more U.S.C. 601 et seq., because there is no entities.
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H. Review Under the Treasury and authority), with the approval of the DEPARTMENT OF TRANSPORTATION General Government Appropriations Secretary of Energy, determines that a Act, 1999 noncompetitive award is in the public Federal Aviation Administration interest. This authority may not be Section 654 of the Treasury and 14 CFR Part 39 General Government Appropriations delegated. Act, 1999 (Pub. L. 105–277), requires * * * * * [Docket No. 98±NM±338±AD; Amendment 39±11380; AD 99±22±02] Federal agencies to issue a Family 5. Section 600.10 is amended by Policymaking Assessment for any revising paragraph (b) to read as follows: RIN 2120±AA64 proposed rule or policy that may affect family well-being. This rulemaking is § 600.10 Form and content of applications. Airworthiness Directives; Boeing Model 757±200PF Series Airplanes not subject to a requirement to propose * * * * * for public comment, and section 654 AGENCY: Federal Aviation therefore does not apply. (b) Forms. Applications shall be on the form and in the number of copies Administration, DOT. List of Subjects in 10 CFR Part 600 specified in a program rule, the ACTION: Final rule. solicitation, or these regulations. (See Administrative practice and SUMMARY: This amendment adopts a procedure. also §§ 600.112 and 600.210.) For new airworthiness directive (AD), Issued in Washington, DC, on October 12, unsolicited applications, a guide for applicable to all Boeing Model 757– 1999. preparation and submission is available 200PF series airplanes, that requires Richard H. Hopf, from U.S. Department of Energy, Federal revising the Airplane Weight & Balance Director, Office of Procurement and Energy Technology Center, Attn: (W&B) Manual to prohibit operation of Assistance Management. Unsolicited Proposal Manager, Post any airplane without side vertical For the reasons set out in the Office Box 10940, Pittsburgh, PA, restraints installed on the main cargo preamble, part 600 of Chapter II, Title 15236–0940. deck when carrying a particular pallet. 10 of the Code of Federal Regulations, * * * * * This amendment also provides for is amended as follows: optional terminating action for the 6. Section 600.13 is revised to read as Airplane W&B Manual revision. This follows: PART 600ÐFINANCIAL ASSISTANCE amendment is prompted by reports RULES § 600.13 Merit review. indicating that some airplanes have been operated without side vertical 1. The authority citation for part 600 * * * * * continues to read as follows: restraints installed on the main cargo (a) It is the policy of DOE that deck when carrying certain pallets. The Authority: 42 U.S.C. 7254, 7256, 13525; 31 discretionary financial assistance be actions specified by this AD are U.S.C. 6301–6308, unless otherwise noted. awarded through a merit-based selection intended to prevent inadvertent 2. Section 600.3 is amended by process. A merit review means a movement of a cargo pallet during removing the term objective merit thorough, consistent, and objective flight, which could result in an adverse review and adding in its place in examination of applications based on center of gravity condition and alphabetical order the term merit review pre-established criteria by persons who consequent reduced controllability of to read as follows: are independent of those submitting the the airplane. applications and who are EFFECTIVE DATE: November 24, 1999. § 600.3 Definitions. knowledgeable in the field of endeavor ADDRESSES: Information pertaining to Merit review means a thorough, for which support is requested. this amendment may be examined at the consistent, and objective examination of Federal Aviation Administration (FAA), applications based on pre-established (b) Each program office must establish Transport Airplane Directorate, Rules criteria by persons who are independent a merit review system covering the Docket, 1601 Lind Avenue, SW., of those submitting the applications and financial assistance programs it Renton, Washington. who are knowledgeable in the field of administers. Merit review of financial endeavor for which support is assistance applications is intended to be FOR FURTHER INFORMATION CONTACT: requested. advisory and is not intended to replace James G. Rehrl, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, * * * * * the authority of the project/program official with responsibility for deciding Transport Airplane Directorate, Seattle § 600.4 [Amended] whether an award will be made. Aircraft Certification Office, 1601 Lind 3. Section 600.4 is amended in Avenue, SW., Renton, Washington paragraphs (c)(2)(ii) and (c)(3) by § 600.14 [Removed and Reserved] 98055–4056; telephone (425) 227–2783; fax (425) 227–1181. revising the phrase ‘‘Deputy Assistant 7. Section 600.14 is removed. Secretary for Procurement and SUPPLEMENTARY INFORMATION: A Assistance Management’’ to read § 600.24 [Amended] proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to ‘‘Director, Procurement and Assistance 8. Section 600.24 is amended in Management’’. include an airworthiness directive (AD) paragraph (b), introductory text, by 4. Section 600.6 is amended by that is applicable to all Boeing Model revising ‘‘§ 600.121(n)’’ to read revising paragraph (c)(8) to read as 757–200PF series airplanes was follows: ‘‘§ 600.122(n)’’. published in the Federal Register on [FR Doc. 99–27424 Filed 10–19–99; 8:45 am] February 10, 1999 (64 FR 6577). That § 600.6 Eligibility. BILLING CODE 6450±01±P action proposed to require revising the * * * * * Airplane Weight & Balance (W&B) (c) * * * Manual to prohibit operation of any (8) The responsible program Assistant airplane without side vertical restraints Secretary (or official of equivalent installed on the main cargo deck when
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While the FAA through their Principal Operations accepts in principle that the Type II Inspector, whereas requests for approval Comments cargo pallets could be manufactured for an alternative method of compliance Interested persons have been afforded with acceptable rigidity characteristics, for paragraph (b) of this AD should be an opportunity to participate in the the commenter has not submitted any submitted through their Principal making of this amendment. Due data or configuration definition that Maintenance Inspector. would allow their use. However, the consideration has been given to the Conclusion comments received. commenter may request approval for an alternative method of compliance in After careful review of the available Support for the Proposal accordance with the provisions of data, including the comments noted One commenter supports the paragraph (c) of this AD. The request above, the FAA has determined that air proposed rule, and another states that it should include sufficient information safety and the public interest require the has no comment. for the FAA to evaluate the proposal. No adoption of the rule with the changes change to the rule is necessary. previously described. The FAA has Request for Extension of the determined that these changes will Request for Use of a Tether Assembly Compliance Time neither increase the economic burden One commenter requests that the One commenter requests that the on any operator nor increase the scope proposed AD be revised to allow the use compliance time for the actions required of the AD. of a tether assembly. The commenter by this proposed AD be extended to at states that a tether assembly is a device Cost Impact least 28 months after the airplane that restricts the shifting of Type II cargo There are approximately 100 manufacturer provides a service bulletin pallets such that the cargo shift will not airplanes of the affected design in the to modify the airplanes to install side affect the airplane’s center of gravity. worldwide fleet. The FAA estimates that vertical restraints. The commenter states The commenter states that such an 90 airplanes of U.S. registry will be that, in 12 years of operating with Type assembly appears to be an economical affected by this AD, that it will take II cargo pallets, it has never had an method to allow continued operation of approximately 1 work hour per airplane adverse incident. The commenter states the Model 757–200PF series airplane to accomplish the required Airplane that this proposed AD would have an with Type II cargo pallets. However, W&B Manual revision, and that the enormous effect on its fleet because it another commenter states that it has average labor rate is $60 per work hour. will have to use Type I cargo pallets. evaluated such a system and concludes Based on these figures, the cost impact The commenter states that Type I cargo that, if used improperly, it could result of the AD on U.S. operators is estimated pallets are not readily available and, in considerable damage to aircraft to be $5,400, or $60 per airplane. because other operators with which the structure and cargo handling system The cost impact figure discussed commenter interacts do not use Type I components. above is based on assumptions that no cargo pallets, it will be difficult to use The FAA does not concur with the operator has yet accomplished any of the services of Model 757–200PF series first commenter’s request to allow the the requirements of this AD action, and airplanes. use of a tether assembly. While the FAA that no operator would accomplish The FAA concurs that the compliance accepts in principle that a tether those actions in the future if this AD time can be extended somewhat. The assembly should adequately address the were not adopted. FAA does not intend for this AD to identified unsafe condition, the FAA place undue hardship on the affected has concluded that it would be prudent Regulatory Impact operators. Based on the information to defer a decision until further The regulations adopted herein will provided by the commenter, the FAA information becomes available. The 28- not have substantial direct effects on the now recognizes that a compliance time month compliance time should allow States, on the relationship between the of 28 months would better allow sufficient time to resolve the issues national government and the States, or operators to purchase Type I cargo raised by the second commenter prior to on the distribution of power and pallets or make the necessary implementation of the W&B Manual responsibilities among the various modifications to airplanes to resume use revision. Assuming satisfactory levels of government. Therefore, in of Type II cargo pallets. In addition, a resolution, the first commenter may accordance with Executive Order 12612, compliance time of 28 months is request approval for an alternative it is determined that this final rule does identical to the compliance times for method of compliance in accordance not have sufficient federalism similar actions to correct similar with the provisions of paragraph (c) of implications to warrant the preparation identified unsafe conditions on other this AD. No change to the rule is of a Federalism Assessment. transport category cargo airplanes. necessary. For the reasons discussed above, I Paragraph (a) of the final rule has been certify that this action: (1) Is not a revised accordingly. Explanation of Changes Made to ‘‘significant regulatory action’’ under Proposal Executive Order 12866; (2) is not a Request for Use of Modified Type II The FAA has revised paragraph (c) of ‘‘significant rule’’ under DOT Cargo Pallets the final rule to include instructions to Regulatory Policies and Procedures (44 One commenter requests that the submit requests of approval for an FR 11034, February 26, 1979); and (3) proposed AD be revised to allow the use alternative method of compliance will not have a significant economic of modified Type II cargo pallets that through an appropriate Principal impact, positive or negative, on a meet the NAS3610 requirements. The Maintenance Inspector. The proposed substantial number of small entities commenter states that the problem with rule only contained instructions to under the criteria of the Regulatory the Type II cargo pallets is that they are submit requests through an appropriate Flexibility Act. A final evaluation has too flexible, but that the pallets could be Principal Operations Inspector. been prepared for this action and it is
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.149 pfrm03 PsN: 20OCR1 56422 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations contained in the Rules Docket. A copy Manager, Seattle Aircraft Certification Office fatigue cracking of the bottom skin of of it may be obtained from the Rules (ACO), FAA, Transport Airplane Directorate, the center wing and consequent reduced Docket at the location provided under constitutes terminating action for the structural integrity of the airplane. requirements of paragraph (a) of this AD. the caption ADDRESSES. DATES: Effective November 4, 1999. Alternative Methods of Compliance List of Subjects in 14 CFR Part 39 The incorporation by reference of (c) An alternative method of compliance or certain publications listed in the Air transportation, Aircraft, Aviation adjustment of the compliance time that regulations is approved by the Director safety, Safety. provides an acceptable level of safety may be of the Federal Register as of November used if approved by the Manager, Seattle Adoption of the Amendment 4, 1999. ACO. Operators shall submit their requests Comments for inclusion in the Rules Accordingly, pursuant to the through an appropriate FAA Principal Docket must be received on or before Operations Inspector or Principal authority delegated to me by the November 19, 1999. Administrator, the Federal Aviation Maintenance Inspector, as applicable, who ADDRESSES: Submit comments in Administration amends part 39 of the may add comments and then send it to the Manager, Seattle ACO. triplicate to the Federal Aviation Federal Aviation Regulations (14 CFR Administration (FAA), Transport part 39) as follows: Note 2: Information concerning the existence of approved alternative methods of Airplane Directorate, ANM–114, PART 39ÐAIRWORTHINESS compliance with this AD, if any, may be Attention: Rules Docket No. 99–NM– DIRECTIVES obtained from the Seattle ACO. 225–AD, 1601 Lind Avenue, SW., Special Flight Permits Renton, Washington 98055–4056. 1. The authority citation for part 39 The service information referenced in continues to read as follows: (d) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the this AD may be obtained from Fokker Authority: 49 U.S.C. 106(g), 40113, 44701. Federal Aviation Regulations (14 CFR 21.197 Services B.V., P.O. Box 231, 2150 AE and 21.199) to operate the airplane to a Nieuw-Vennep, The Netherlands. This § 39.13 [Amended] location where the requirements of this AD information may be examined at the 2. Section 39.13 is amended by can be accomplished. FAA, Transport Airplane Directorate, adding the following new airworthiness (e) This amendment becomes effective on 1601 Lind Avenue, SW., Renton, directive: November 24, 1999. Washington; or at the Office of the Issued in Renton, Washington, on October 99–22–02 Boeing: Amendment 39–11380. Federal Register, 800 North Capitol 13, 1999. Docket 98–NM–338–AD. Street, NW., suite 700, Washington, DC. D.L. Riggin, Applicability: All Model 757–200PF series FOR FURTHER INFORMATION CONTACT: airplanes, certificated in any category. Acting Manager, Transport Airplane Norman B. Martenson, Manager, Directorate, Aircraft Certification Service. Note 1: This AD applies to each airplane International Branch, ANM–116, FAA, identified in the preceding applicability [FR Doc. 99–27272 Filed 10–19–99; 8:45 am] Transport Airplane Directorate, 1601 provision, regardless of whether it has been BILLING CODE 4910±13±P Lind Avenue, SW., Renton, Washington modified, altered, or repaired in the area 98055–4056; telephone (425) 227–2110; subject to the requirements of this AD. For fax (425) 227–1149. airplanes that have been modified, altered, or DEPARTMENT OF TRANSPORTATION repaired so that the performance of the SUPPLEMENTARY INFORMATION: The requirements of this AD is affected, the Federal Aviation Administration Rijksluchtvaartdienst (RLD), which is owner/operator must request approval for an the airworthiness authority for the alternative method of compliance in 14 CFR Part 39 Netherlands, notified the FAA that an accordance with paragraph (c) of this AD. [Docket No. 99±NM±225±AD; Amendment unsafe condition may exist on certain The request should include an assessment of Fokker Model F.27 Mark 050 series the effect of the modification, alteration, or 39±11379; AD 99±21±33] airplanes. The RLD advises that, on a repair on the unsafe condition addressed by RIN 2120±AA64 this AD; and, if the unsafe condition has not number of airplanes on the production line, the heads of countersunk screws been eliminated, the request should include Airworthiness Directives; Fokker were found not to seat properly in their specific proposed actions to address it. Model F.27 Mark 050 Series Airplanes Compliance: Required as indicated, unless countersinkings. The affected screws are accomplished previously. AGENCY: Federal Aviation used in the attachment of access panels To prevent inadvertent movement of a Administration, DOT. of the bottom skin of the center wing. cargo pallet during flight, which could result ACTION: Final rule; request for This condition, if not corrected, could in an adverse center of gravity condition and comments. result in fatigue cracking of the bottom consequent reduced controllability of the skin of the center wing and consequent airplane, accomplish the following: SUMMARY: This amendment adopts a reduced structural integrity of the Manual Revision new airworthiness directive (AD), airplane. applicable to certain Fokker Model F.27 (a) Within 28 months after the effective Explanation of Relevant Service date of this AD: Revise the Limitations Mark 050 series airplanes. This action Section of the FAA-approved Airplane requires a one-time inspection to detect Information Weight & Balance (W&B) Manual to include improper installation of countersunk Fokker has issued Service Bulletin the following statement. This action may be screws used to attach the access panels SBF50–57–015, dated February 28, accomplished by inserting a copy of this AD to the bottom skin of the center wing; 1996, which describes procedures for a into the W&B Manual. and corrective action, if necessary. This one-time detailed visual inspection to ‘‘Operation of any airplane without side amendment is prompted by issuance of detect improper installation (excessive vertical restraints installed on the main cargo mandatory continuing airworthiness gap) of the countersunk screws in the deck when carrying any Type II cargo pallet information by a foreign civil access covers of the bottom skin of the is prohibited.’’ airworthiness authority. The actions center wing. Optional Corrective Action specified in this AD are intended to Fokker has also issued Service (b) Installation of side vertical restraints in detect and correct such improper Bulletin SBF50–57–018, dated February accordance with a method approved by the installation, which could result in 28, 1996, which describes procedures
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.150 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56423 for reaming of the fastener holes and an necessary to ensure that the unsafe postcard will be date stamped and eddy current inspection to detect cracks condition is addressed in the event that returned to the commenter. in the bottom skin of the center wing. any of these subject airplanes are Regulatory Impact This service bulletin also describes imported and placed on the U.S. procedures to repair any cracking that is Register in the future. The regulations adopted herein will found. Should an affected airplane be not have substantial direct effects on the The RLD classified these service imported and placed on the U.S. States, on the relationship between the bulletins as mandatory and issued Register in the future, it would require national government and the States, or Dutch airworthiness directive 1996–042 approximately 6 work hours to on the distribution of power and (A), dated April 29, 1996, in order to accomplish the required inspection, at responsibilities among the various assure the continued airworthiness of an average labor rate of $60 per work levels of government. Therefore, in these airplanes in the Netherlands. hour. Based on these figures, the cost accordance with Executive Order 12612, it is determined that this final rule does FAA’s Conclusions impact of this AD would be $360 per airplane. not have sufficient federalism This airplane model is manufactured implications to warrant the preparation in the Netherlands and is type Determination of Rule’s Effective Date of a Federalism Assessment. certificated for operation in the United Since this AD action does not affect For the reasons discussed above, I States under the provisions of § 21.29 of any airplane that is currently on the certify that this action (1) is not a the Federal Aviation Regulations (14 U.S. register, it has no adverse economic ‘‘significant regulatory action’’ under CFR 21.19) and the applicable bilateral impact and imposes no additional Executive Order 12866; (2) is not a airworthiness agreement. Pursuant to burden on any person. Therefore, prior ‘‘significant rule’’ under DOT this bilateral airworthiness agreement, notice and public procedures hereon are Regulatory Policies and Procedures (44 the RLD has kept the FAA informed of unnecessary and the amendment may be FR 11034, February 26, 1979); and (3) the situation described above. The FAA made effective in less than 30 days after will not have a significant economic has examined the findings of the RLD, publication in the Federal Register. impact, positive or negative, on a reviewed all available information, and substantial number of small entities determined that AD action is necessary Comments Invited under the criteria of the Regulatory for products of this type design that are Although this action is in the form of Flexibility Act. A final evaluation has certificated for operation in the United a final rule and was not preceded by been prepared for this action and it is States. notice and opportunity for public contained in the Rules Docket. A copy of it may be obtained from the Rules Explanation of Requirements of the comment, comments are invited on this Docket at the location provided under Rule rule. Interested persons are invited to comment on this rule by submitting the caption ADDRESSES. Since an unsafe condition has been such written data, views, or arguments identified that is likely to exist or List of Subjects in 14 CFR Part 39 as they may desire. Communications develop on other airplanes of the same Air transportation, Aircraft, Aviation shall identify the Rules Docket number type design registered in the United safety, Incorporation by reference, and be submitted in triplicate to the States, this AD is being issued to detect Safety. address specified under the caption and correct improper installation of ADDRESSES. All communications Adoption of the Amendment countersunk screws in the attachment of received on or before the closing date access panels of the bottom skin of the Accordingly, pursuant to the for comments will be considered, and center wing, which could result in authority delegated to me by the this rule may be amended in light of the fatigue cracking of the bottom skin and Administrator, the Federal Aviation comments received. Factual information consequent reduced structural integrity Administration amends part 39 of the that supports the commenter’s ideas and of the airplane. This AD requires Federal Aviation Regulations (14 CFR suggestions is extremely helpful in accomplishment of the actions specified part 39) as follows: evaluating the effectiveness of the AD in the service bulletins described action and determining whether PART 39ÐAIRWORTHINESS previously. additional rulemaking action would be DIRECTIVES Differences Between Rule and Service needed. 1. The authority citation for part 39 Bulletin Comments are specifically invited on continues to read as follows: Operators should note that, although the overall regulatory, economic, Fokker Service Bulletin SBF50–57–018 environmental, and energy aspects of Authority: 49 U.S.C. 106(g), 40113, 44701. specifies that the manufacturer may be the rule that might suggest a need to § 39.13 [Amended] modify the rule. All comments contacted for disposition of certain 2. Section 39.13 is amended by submitted will be available, both before repair conditions, this AD would adding the following new airworthiness and after the closing date for comments, require the repair of those conditions to directive: be accomplished in accordance with a in the Rules Docket for examination by method approved by the FAA. interested persons. A report that 99–21–33 Fokker Services B.V.: summarizes each FAA-public contact Amendment 39–11379. Docket 99–NM– Cost Impact concerned with the substance of this AD 225–AD. None of the airplanes affected by this will be filed in the Rules Docket. Applicability: Model F.27 Mark 050 series airplanes, serial numbers 20103 through action are on the U.S. Register. All Commenters wishing the FAA to 20263 inclusive; certificated in any category. airplanes included in the applicability acknowledge receipt of their comments Note 1: This AD applies to each airplane of this rule currently are operated by submitted in response to this rule must identified in the preceding applicability non-U.S. operators under foreign submit a self-addressed, stamped provision, regardless of whether it has been registry; therefore, they are not directly postcard on which the following modified, altered, or repaired in the area affected by this AD action. However, the statement is made: ‘‘Comments to subject to the requirements of this AD. For FAA considers that this rule is Docket Number 99–NM–225–AD.’’ The airplanes that have been modified, altered, or
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International Branch, ANM–116, as required 14 CFR Part 39 The request should include an assessment of by this paragraph, the Manager’s approval the effect of the modification, alteration, or [Docket No. 98±NM±340±AD; Amendment repair on the unsafe condition addressed by letter must specifically reference this AD. 39±11378; AD 99±21±32] this AD; and, if the unsafe condition has not Alternative Methods of Compliance RIN 2120±AA64 been eliminated, the request should include (c) An alternative method of compliance or specific proposed actions to address it. Airworthiness Directives; McDonnell Compliance: Required as indicated, unless adjustment of the compliance time that provides an acceptable level of safety may be Douglas Model MD±90±30 Series accomplished previously. Airplanes To detect and correct improper installation used if approved by the Manager, International Branch, ANM–116, FAA, of countersunk screws in the attachment of AGENCY: Federal Aviation access panels of the bottom skin of the center Transport Airplane Directorate. Operators Administration, DOT. wing, which could result in fatigue cracking shall submit their requests through an of the bottom skin of the center wing and appropriate FAA Principal Maintenance ACTION: Final rule. consequent reduced structural integrity of the Inspector, who may add comments and then airplane, accomplish the following: SUMMARY: This amendment adopts a send it to the Manager, International Branch, new airworthiness directive (AD), Initial Inspection ANM–116. applicable to certain McDonnell (a) Prior to the accumulation of 24,000 total Note 3: Information concerning the Douglas Model MD–90–30 series flight cycles, perform a one-time detailed existence of approved alternative methods of airplanes, that requires a one-time visual inspection to detect improper compliance with this AD, if any, may be inspection to measure clearance and installation (excessive gap) of the obtained from the International Branch, detect interference between the elevator countersunk screws used to attach the access ANM–116. panels to the bottom skin of the center wing, cable pulley and the shroud frame of the in accordance with the Accomplishment Special Flight Permits ventral stairway, and modification of the shroud frame of the ventral stairway. Instructions of Fokker Service Bulletin (d) Special flight permits may be issued in SBF50–57–015, dated February 28, 1996. This amendment is prompted by reports accordance with §§ 21.197 and 21.199 of the of pitch oscillation of several Model Note 2: For the purposes of this AD, a Federal Aviation Regulations (14 CFR 21.197 detailed visual inspection is defined as: ‘‘An and 21.199) to operate the airplane to a MD–90–30 series airplanes. The actions intensive visual examination of a specific specified by this AD are intended to structural area, system, installation, or location where the requirements of this AD can be accomplished. prevent interference between the assembly to detect damage, failure, or elevator cable pulley and the shroud irregularity. Available lighting is normally Incorporation by Reference frame of the ventral stairway, which supplemented with a direct source of good lighting at intensity deemed appropriate by (e) Except as provided by paragraph (b)(2) could result in pitch oscillation of the the inspector. Inspection aids such as mirror, of this AD, the actions shall be done in airplane, and consequent damage to the magnifying lenses, etc., may be used. Surface accordance with Fokker Service Bulletin elevator cable pulley and reduced cleaning and elaborate access procedures SBF50–57–015, dated February 28, 1996, and controllability of the airplane. may be required.’’ Fokker Service Bulletin SBF50–57–018, DATES: Effective November 24, 1999. Inspection and Corrective Action dated February 28, 1996. This incorporation The incorporation by reference of by reference was approved by the Director of certain publications listed in the (b) If any improper installation (excessive the Federal Register in accordance with 5 gap) is found during the inspection required regulations is approved by the Director by paragraph (a) of this AD: Prior to the U.S.C. 552(a) and 1 CFR part 51. Copies may of the Federal Register as of November accumulation of 24,000 total flight cycles, be obtained from Fokker Services B.V., P.O. 24, 1999. ream the fastener holes in the rabbet of the Box 231, 2150 AE Nieuw-Vennep, The ADDRESSES: The service information bottom skin of the center wing and perform Netherlands. Copies may be inspected at the referenced in this AD may be obtained an eddy current inspection for cracking of the FAA, Transport Airplane Directorate, 1601 from The Boeing Company, Douglas fastener holes in accordance with the Lind Avenue, SW., Renton, Washington; or at Products Division, 3855 Lakewood Accomplishment Instructions of Fokker the Office of the Federal Register, 800 North Service Bulletin SBF50–57–018, dated Boulevard, Long Beach, California Capitol Street, NW., suite 700, Washington, 90846, Attention: Technical February 28, 1996. DC. Publications Business Administration, Repair Note 4: The subject of this AD is addressed Dept. C1–L51 (2–60). This information (1) For any fastener hole for which no in Dutch airworthiness directive 1996–042 may be examined at the Federal crack is found during the eddy current (A), dated April 29, 1996. Aviation Administration (FAA), inspection: Prior to further flight; accomplish (f) This amendment becomes effective on Transport Airplane Directorate, Rules corrective actions for the fastener hole, in November 4, 1999. Docket, 1601 Lind Avenue, SW., accordance with Step C. of Repair Scheme No. 1 of Fokker Service Bulletin SBF50–57– Issued in Renton, Washington, on October Renton, Washington; or at the FAA, 018, dated February 28, 1996. 8, 1999. Transport Airplane Directorate, Los (2) For any fastener hole for which a crack D.L. Riggin, Angeles Aircraft Certification Office, is found during the eddy current inspection: Acting Manager, Transport Airplane 3960 Paramount Boulevard, Lakewood, Prior to further flight; repair and re-inspect Directorate, Aircraft Certification Service. California; or at the Office of the Federal the fastener hole, in accordance with Steps [FR Doc. 99–26933 Filed 10–19–99; 8:45 am] Register, 800 North Capitol Street, NW., A. and B. of Repair Scheme No. 1 of Fokker suite 700, Washington, DC. Service Bulletin SBF50–57–018, dated BILLING CODE 4910±13±P FOR FURTHER INFORMATION CONTACT: February 28, 1996. For any crack that is Jon outside the limits specified in the service Mowery, Aerospace Engineer, Airframe bulletin, prior to further flight, repair in Branch, ANM–120L, FAA, Transport accordance with a method approved by Airplane Directorate, Los Angeles either the Manager, International Branch, Aircraft Certification Office, 3960
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Paramount Boulevard, Lakewood, accomplish the inspection prior to 12 will neither increase the economic California 90712–4137; telephone (562) months after the effective date of this burden on any operator nor increase the 627–5322; fax (562) 627–5210. AD, it is that operator’s prerogative to scope of the AD. SUPPLEMENTARY INFORMATION: A do so. If additional data are presented Cost Impact proposal to amend part 39 of the Federal that would justify a shorter compliance Aviation Regulations (14 CFR part 39) to time, the FAA may consider further There are approximately 58 airplanes include an airworthiness directive (AD) rulemaking on this issue. of the affected design in the worldwide that is applicable to certain McDonnell Request to Shorten the Effective Date fleet. The FAA estimates that 58 Douglas Model MD–90–30 series One commenter requests that the airplanes of U.S. registry will be affected airplanes was published in the Federal by this AD. Register on February 9, 1999 (64 FR maximum time from issuance to the 6259). That action proposed to require effective date be no more than 30 days. It will take approximately 1 work a one-time inspection to measure The commenter suggests that the hour per airplane to accomplish the clearance and detect interference proposed compliance time may be required inspection, at an average labor between the elevator cable pulley and unnecessarily extended by adding in the rate of $60 per work hour. Based on the shroud frame of the ventral stairway, administrative procedures time to these figures, the cost impact of the and modification of the shroud frame of publish the final rule in the Federal inspection required by this AD on U.S. the ventral stairway. Register. operators is estimated to be $3,480, or The FAA does not concur with the $60 per airplane. Comments commenter’s request. The It will take approximately 2 work Administrative Procedure Act (APA) Interested persons have been afforded hours per airplane to accomplish the requires that Federal agencies provide at an opportunity to participate in the required modification, at an average least 30 days after publication of a final making of this amendment. Due labor rate of $60 per work hour. rule in the Federal Register before consideration has been given to the Required parts will be provided by the making it effective, unless ‘‘good cause’’ comments received. manufacturer at no cost to the operators. can be found not to do so. Under the Based on these figures, the cost impact Support of the Proposal APA, the basis for this finding is similar of the modification required by this AD Several commenters support the to the basis for a finding of good cause on U.S. operators is estimated to be proposed rule. to dispense with notice and comment $6,960, or $120 per airplane. Request to Shorten Compliance Time procedures in issuing rules. In the case of certain AD’s, the nature of the action The cost impact figures discussed One commenter requests that the may be of such urgency that for the FAA above are based on assumptions that no proposed 12-month compliance time for to take any additional time to provide operator has yet accomplished any of accomplishment of the inspection notice and opportunity for prior public the requirements of this AD action, and specified in paragraph (a) of the comment would be impracticable; in that no operator would accomplish proposed AD be shortened to 90 days. those cases, the FAA finds good cause those actions in the future if this AD The commenter asserts that the for making the rule effective in less than were not adopted. proposed compliance time is too long in 30 days. In the case of this AD action, Regulatory Impact consideration of the flight critical nature however, the FAA did not consider that of the unsafe condition. Based on the the addressed unsafe condition was of The regulations adopted herein will proposed compliance time, such a critical nature that time could administrative procedure time to not have substantial direct effects on the not be afforded for notice and the States, on the relationship between the publish the final rule, and a possible opportunity for the public to comment ‘‘delayed’’ effective date, the commenter national government and the States, or on the rule. It follows then, that there is on the distribution of power and states that it could be 3 years or more no basis for finding good cause for before an operator must correct this responsibilities among the various making this rule effective in less than 30 levels of government. Therefore, in unsafe condition, which is an days. For domestic final rules following unacceptable amount of time. accordance with Executive Order 12612, notice, the FAA assigns an effective date it is determined that this final rule does The FAA does not concur. In of 35 days after publication. developing an appropriate compliance not have sufficient federalism time, the FAA considered the safety Explanation of Change Made to implications to warrant the preparation implications, parts availability, and Proposal of a Federalism Assessment. normal maintenance schedules for The FAA has clarified the inspection For the reasons discussed above, I timely accomplishment of the requirement contained in the proposed certify that this action (1) is not a inspection. Further, the proposed AD. Whereas the proposal specified a ‘‘significant regulatory action’’ under compliance time was arrived at with visual inspection, the FAA has revised Executive Order 12866; (2) is not a operator, manufacturer, and FAA this final rule to clarify that its intent is ‘‘significant rule’’ under DOT concurrence. In consideration of all of to require a general visual inspection. Regulatory Policies and Procedures (44 these factors, the FAA determined that Additionally, a note has been added to FR 11034, February 26, 1979); and (3) the compliance time, as proposed, the final rule to define that inspection. will not have a significant economic represents an appropriate interval in impact, positive or negative, on a which the inspection can be Conclusion substantial number of small entities accomplished in a timely manner After careful review of the available under the criteria of the Regulatory within the fleet and still maintain an data, including the comments noted Flexibility Act. A final evaluation has adequate level of safety. Operators are above, the FAA has determined that air been prepared for this action and it is always permitted to accomplish the safety and the public interest require the contained in the Rules Docket. A copy requirements of an AD at a time earlier adoption of the rule as proposed with of it may be obtained from the Rules than that specified as the compliance the change previously described. The Docket at the location provided under time; therefore, if an operator elects to FAA has determined that this change the caption ADDRESSES.
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List of Subjects in 14 CFR part 39 available lighting conditions such as Issued in Renton, Washington, on October 8, 1999. Air transportation, Aircraft, Aviation daylight, hangar lighting, flashlight, or drop- light, and may require removal or opening of safety, Incorporation by reference, D.L. Riggin, access panels or doors. Stands, ladders, or Safety. Acting Manager, Transport Airplane platforms may be required to gain proximity Directorate, Aircraft Certification Service. Adoption of the Amendment to the area being checked.’’ [FR Doc. 99–26934 Filed 10–19–99; 8:45 am] Accordingly, pursuant to the (1) If clearance is greater than or equal to BILLING CODE 4910±13±U authority delegated to me by the 0.5 inch, and if no interference is detected: Administrator, the Federal Aviation Within 18 months after performing the Administration amends part 39 of the inspection, accomplish the requirements of DEPARTMENT OF TRANSPORTATION Federal Aviation Regulations (14 CFR paragraph (b) of this AD. part 39) as follows: (2) If clearance is less than 0.5 inch, or if Federal Aviation Administration any interference is detected: Prior to further PART 39ÐAIRWORTHINESS flight, accomplish the requirements of 14 CFR Part 39 DIRECTIVES paragraph (b) of this AD. [Docket No. 98±NM±244±AD; Amendment 39±11377; AD 99±21±31] 1. The authority citation for part 39 Modification continues to read as follows: (b) Modify the shroud frame of the ventral RIN 2120±AA64 Authority: 49 U.S.C. 106(g), 40113, 44701. stairway in accordance with Phase 2 of McDonnell Douglas Service Bulletin No. Airworthiness Directives; Saab Model § 39.13 [Amended] MD90–27–026, dated September 30, 1998. SAAB SF340A and SAAB 340B Series Airplanes 2. Section 39.13 is amended by Alternative Methods of Compliance adding the following new airworthiness AGENCY: Federal Aviation directive: (c) An alternative method of compliance or adjustment of the compliance time that Administration, DOT. 99–21–32 McDonnell Douglas: Amendment provides an acceptable level of safety may be ACTION: Final rule. 39–11378. Docket 98–NM–340–AD. used if approved by the Manager, Los Applicability: Model MD–90–30 series Angeles Aircraft Certification Office (ACO), SUMMARY: This amendment adopts a airplanes, as listed in McDonnell Douglas FAA, Transport Airplane Directorate. new airworthiness directive (AD), Service Bulletin No. MD90–27–026, dated Operators shall submit their requests through applicable to certain Saab Model SAAB September 30, 1998; certificated in any an appropriate FAA Principal Maintenance SF340A and SAAB 340B series category. Inspector, who may add comments and then airplanes, that requires removing the Note 1: This AD applies to each airplane send it to the Manager, Los Angeles ACO. control quadrant, securing the power identified in the preceding applicability Note 3: Information concerning the lever cam screws with Loctite, and provision, regardless of whether it has been reinstalling the control quadrant. This modified, altered, or repaired in the area existence of approved alternative methods of subject to the requirements of this AD. For compliance with this AD, if any, may be amendment is prompted by issuance of airplanes that have been modified, altered, or obtained from the Los Angeles ACO. mandatory continuing airworthiness repaired so that the performance of the information by a foreign civil Special Flight Permits requirements of this AD is affected, the airworthiness authority. The actions owner/operator must request approval for an (d) Special flight permits may be issued in specified by this AD are intended to alternative method of compliance in accordance with §§ 21.197 and 21.199 of the prevent the cam screws of the engine accordance with paragraph (c) of this AD. Federal Aviation Regulations (14 CFR 21.197 power levers from backing out and The request should include an assessment of and 21.199) to operate the airplane to a interfering with the movement of the the effect of the modification, alteration, or location where the requirements of this AD engine power levers, which could result repair on the unsafe condition addressed by can be accomplished. this AD; and, if the unsafe condition has not in limited engine power, and been eliminated, the request should include Incorporation by Reference consequent reduced controllability of specific proposed actions to address it. (e) The inspection and modification shall the airplane. Compliance: Required as indicated, unless be done in accordance with McDonnell DATES: Effective November 24, 1999. accomplished previously. Douglas Service Bulletin No. MD90–27–026, The incorporation by reference of To prevent interference between the dated September 30, 1998. This certain publications listed in the elevator cable pulley and the shroud frame of incorporation by reference was approved by regulations is approved by the Director the ventral stairway, which could result in the Director of the Federal Register in pitch oscillation of the airplane, and of the Federal Register as of November consequent damage to the elevator cable accordance with 5 U.S.C. 552(a) and 1 CFR 24, 1999. pulley and reduced controllability of the part 51. Copies may be obtained from The ADDRESSES: The service information airplane, accomplish the following: Boeing Company, Douglas Products Division, referenced in this AD may be obtained 3855 Lakewood Boulevard, Long Beach, from Saab Aircraft AB, SAAB Aircraft Inspection California 90846, Attention: Technical Product Support, S–581.88, Linko¨ping, (a) Within 12 months after the effective Publications Business Administration, Dept. Sweden. This information may be date of this AD, perform a one-time general C1–L51 (2–60). Copies may be inspected at visual inspection to measure clearance and the FAA, Transport Airplane Directorate, examined at the Federal Aviation detect interference between the elevator cable 1601 Lind Avenue, SW., Renton, Administration (FAA), Transport pulley and the shroud frame of the ventral Washington; or at the FAA, Transport Airplane Directorate, Rules Docket, stairway in accordance with Phase 1 of Airplane Directorate, Los Angeles Aircraft 1601 Lind Avenue, SW., Renton, McDonnell Douglas Service Bulletin No. Washington; or at the Office of the MD90–27–026, dated September 30, 1998. Certification Office, 3960 Paramount Boulevard, Lakewood, California; or at the Federal Register, 800 North Capitol Note 2: For the purposes of this AD, a Office of the Federal Register, 800 North Street, NW., suite 700, Washington, DC. general visual inspection is defined as: ‘‘A visual examination of an interior or exterior Capitol Street, NW., suite 700, Washington, FOR FURTHER INFORMATION CONTACT: area, installation, or assembly to detect DC. Norman B. Martenson, Manager, obvious damage, failure, or irregularity. This (f) This amendment becomes effective on International Branch, ANM–116, FAA, level of inspection is made under normally November 24, 1999. Transport Airplane Directorate, 1601
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Lind Avenue, SW., Renton, Washington inspection interval of 200 flight hours suggests would not adequately prevent 98055–4056; telephone (425) 227–2110; would be sufficient until the quadrant the possibility of a sudden restriction of fax (425) 227–1149. was removed for other causes, which power lever movement. SUPPLEMENTARY INFORMATION: A would allow accomplishment of the Although the FAA does not disagree proposal to amend part 39 of the Federal service bulletin (i.e., Saab Service with the results of the test showing that Aviation Regulations (14 CFR part 39) to Bulletin 340–76–042, dated May 28, 8 lbs. of force would overcome include an airworthiness directive (AD) 1998, including Attachments 1, 2, and 3, restriction of the power levers, the FAA that is applicable to certain Saab Model all dated May 1, 1998, was cited as the does not concur that such action on the SAAB SF340A and SAAB 340B series appropriate source of service part of the flight crew is appropriate. airplanes was published in the Federal information in this NPRM) at that time. Since the flight crew would not be Register on October 27, 1998 (63 FR 4. A test conducted at the control aware of the cause of the sudden 57260). That action proposed to require quadrant vendor showed that, in the binding in the power levers, they would removing the control quadrant, securing worst-case, interference with the power not reasonably be expected to know the power lever cam screws with levers caused by any migration of loose what action to take, how much force to Loctite, and reinstalling the control screws could be overcome by the flight apply, and when to stop applying the quadrant. crew using an additional 8 lbs of force. extra force. Therefore, the crew would not lose Comments control of engine power. Request for Revision of Cost Impact Interested persons have been afforded The FAA does not concur with the Information an opportunity to participate in the commenter’s statement that the One commenter requests that the FAA making of this amendment. Due proposed AD is not warranted. The FAA remove the sentence that reads consideration has been given to the has determined that the actions required ‘‘required parts would be supplied by comments received. by this AD are appropriate for the the manufacturer at no cost to the reasons described below. Request To Withdraw Proposed AD operators’’ from the Cost Impact section Although the commenter states that a of the proposed AD. The commenter One commenter states that the single operator incorrectly installed the notes that no parts are necessary to proposed action (i.e., removal of all migrated screws, installation of any accomplish the modification, only control quadrants to put Loctite on the screws in the area affected by this AD consumables (i.e., Loctite and Loctite screws) is not warranted for the would not have been accomplished by primer). following reasons: any operator, only by the vendor of the The FAA concurs with the 1. The proposed rule is based on two control quadrant. commenter’s request. The cost impact events that occurred at a single operator. Additionally, the FAA has been information, below, has been revised Investigation of these events showed advised that the two control quadrants accordingly. that the migrated screw was an incorrect that have had the problem were part number from the flight idle stop manufactured in different batches with Conclusion assembly. The commenter notes that no a long period of time in between. After careful review of the available other operators have reported this The results of the audit at the control data, including the comments noted problem, which indicates that the quadrant vendor do not adequately above, the FAA has determined that air installation was an error in the field, explain why incorrect screws were safety and the public interest require the and not a problem introduced during installed during manufacture of these adoption of the rule with the change the modification of the control quadrant two quadrants. Therefore, the FAA has described previously. The FAA has by its vendor (Adams-Rite). The determined that it is necessary to determined that this change will neither commenter also states that an audit of accomplish an inspection and increase the economic burden on any related inventory, kits, and items in modification of all quadrants. operator nor increase the scope of the stock at the control quadrant vendor The FAA also disagrees with the AD. found no screws with incorrect part commenter’s statement that it has numbers, which further indicates that determined that correct screws are Cost Impact the problem was caused by a field installed inside its spare quadrants. The FAA estimates that 283 airplanes installation error of the flight idle stop Further discussions with Luftfartsverket of U.S. registry will be affected by this modification kit. (LFV), which is the airworthiness AD, that it will take approximately 9 2. The commenter states that a check authority for Sweden, and Saab have work hours per airplane to accomplish of it’s spare throttle quadrants shows revealed that it is not possible for the required actions, and that the that the correct screws have been operators to adequately check the average labor rate is $60 per work hour. installed within the flight idle stop installation of the correct screw length Based on these figures, the cost impact assembly and are installed tightly. There without disassembling the control of the AD on U.S. operators is estimated is no indication that these screws can quadrant. Further, such disassembly is to be $152,820, or $540 per airplane. migrate, or ‘‘back out’’ of place. only to be accomplished by the The cost impact figure discussed 3. Given the amount of time and quadrant vendor. above is based on assumptions that no hours accrued since installation of the The FAA also disagrees that the operator has yet accomplished any of flight idle stop, the commenter states screws should already have migrated, or the requirements of this AD action, and that any screws susceptible to such that they can be checked periodically that no operator would accomplish migration should already have shown for looseness. It may be possible for the those actions in the future if this AD signs of movement. The commenter screws to remain in place for some time were not adopted. further notes that a much simpler due to friction below the head of the inspection would be to use a strong light screw, and then suddenly become loose Regulatory Impact and look through the power lever slot in due to vibration. It is not possible to The regulations adopted herein will the control quadrant to examine the predict how quickly or when such an not have substantial direct effects on the screws, and only remove the quadrant if event would occur. A periodic States, on the relationship between the the screws show signs of looseness. An inspection such as the commenter national government and the States, or
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.153 pfrm03 PsN: 20OCR1 56428 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations on the distribution of power and been eliminated, the request should include Register in accordance with 5 U.S.C. 552(a) responsibilities among the various specific proposed actions to address it. and 1 CFR part 51. Copies may be obtained levels of government. Therefore, in Compliance: Required as indicated, unless from Saab Aircraft AB, SAAB Aircraft accordance with Executive Order 12612, accomplished previously. Product Support, S–581.88, Linko¨ping, Sweden. Copies may be inspected at the it is determined that this final rule does To prevent the cam screws of the engine power levers from backing out and FAA, Transport Airplane Directorate, 1601 not have sufficient federalism interfering with the movement of the engine Lind Avenue, SW., Renton, Washington; or at implications to warrant the preparation power levers, which could result in limited the Office of the Federal Register, 800 North of a Federalism Assessment. engine power, and consequent reduced Capitol Street, NW., suite 700, Washington, For the reasons discussed above, I controllability of the airplane, accomplish DC. certify that this action (1) is not a the following: Note 3: The subject of this AD is addressed ‘‘significant regulatory action’’ under (a) Within 1,200 flight hours or 6 months in Swedish airworthiness directive 1–128, Executive Order 12866; (2) is not a after the effective date of this AD, whichever dated May 29, 1998. ‘‘significant rule’’ under DOT occurs first, remove the control quadrant, (f) This amendment becomes effective on Regulatory Policies and Procedures (44 secure the power lever cam screws with November 24, 1999. Loctite, and reinstall the control quadrant, in FR 11034, February 26, 1979); and (3) accordance with Saab Service Bulletin 340– Issued in Renton, Washington, on October will not have a significant economic 76–042, dated May 28, 1998, including 8, 1999. impact, positive or negative, on a Attachments 1, 2, and 3, all dated May 1, D.L. Riggin, substantial number of small entities 1998. Acting Manager, Transport Airplane under the criteria of the Regulatory (b) As of the effective date of this AD, no Directorate, Aircraft Certification Service. Flexibility Act. A final evaluation has person shall install on any airplane any [FR Doc. 99–26935 Filed 10–19–99; 8:45 am] been prepared for this action and it is control quadrant unit having part number (P/ N) 53082, 53162, or 53170, unless the control BILLING CODE 4910±13±P contained in the Rules Docket. A copy quadrant unit has been modified in of it may be obtained from the Rules accordance with this AD. Docket at the location provided under DEPARTMENT OF TRANSPORTATION Alternative Methods of Compliance the caption ADDRESSES. (c) An alternative method of compliance or Federal Aviation Administration List of Subjects in 14 CFR Part 39 adjustment of the compliance time that Air transportation, Aircraft, Aviation provides an acceptable level of safety may be 14 CFR Part 71 safety, Incorporation by reference, used if approved by the Manager, Safety. International Branch, ANM–116, FAA, [Airspace Docket No. 99±ACE±38] Transport Airplane Directorate. Operators Adoption of the Amendment shall submit their requests through an Amendment to Class E Airspace; appropriate FAA Principal Maintenance Accordingly, pursuant to the Inspector, who may add comments and then Lyons, KS authority delegated to me by the send it to the Manager, International Branch, Administrator, the Federal Aviation ANM–116. AGENCY: Federal Aviation Administration amends part 39 of the Note 2: Information concerning the Administration, DOT. existence of approved alternative methods of Federal Aviation Regulations (14 CFR ACTION: Direct final rule; confirmation of part 39) as follows: compliance with this AD, if any, may be obtained from the International Branch, effective date. PART 39ÐAIRWORTHINESS ANM–116. SUMMARY: This document confirms the DIRECTIVES Special Flight Permits effective date of a direct final rule which 1. The authority citation for part 39 (d) Special flight permits may be issued in revises Class E airspace at Lyons, KS. continues to read as follows: accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 DATES: The direct final rule published at Authority: 49 U.S.C. 106(g), 40113, 44701. and 21.199) to operate the airplane to a 64 FR 44398 is effective on 0901 UTC, § 39.13 [Amended] location where the requirements of this AD November 4, 1999. can be accomplished. 2. Section 39.13 is amended by FOR FURTHER INFORMATION CONTACT: adding the following new airworthiness Incorporation by Reference Kathy Randolph, Air Traffic Division directive: (e) The actions shall be done in accordance Airspace Branch, ACE–520C, Federal 99–21–31 SAAB AIRCRAFT AB: with Saab Service Bulletin 340–76–042, Aviation Administration, 601 East 12th Amendment 39–11377. Docket 98–NM– dated May 28, 1998, including Attachment 1, Street, Kansas City, Missouri 64106; 244–AD. dated May 1, 1998, Attachment 2, dated May telephone: (816) 426–3408. 1, 1998, and Attachment 3, dated May 1, Applicability: Model SAAB SF340A and 1998, which contains the following list of SUPPLEMENTARY INFORMATION: The FAA SAAB 340B series airplanes, as listed in Saab effective pages: published this direct final rule with a Service Bulletin 340–76–042, dated May 28, 1998, certificated in any category. request for comments in the Federal Page Revision level Date shown on Register on August 16, 1999 (64 FR Note 1: This AD applies to each airplane Nos. shown on page page 44398). The FAA uses the direct final identified in the preceding applicability rulemaking procedure for a non- provision, regardless of whether it has been 1±4 ...... Original ...... May 28, 1998. otherwise modified, altered, or repaired in controversial rule where the FAA the area subject to the requirements of this Attachment 1 believes that there will be no adverse AD. For airplanes that have been modified, 1±4 ...... Original ...... May 1, 1998. public comment. This direct final rule altered, or repaired so that the performance advised the public that no adverse of the requirements of this AD is affected, the Attachment 2 comments were anticipated, and that owner/operator must request approval for an 1±4 ...... Original ...... May 1, 1998. unless a written adverse comment, or a alternative method of compliance in written notice of intent to submit such accordance with paragraph (c) of this AD. Attachment 3 The request should include an assessment of 1±4 ...... Original ...... May 1, 1998. an adverse comment, were received the effect of the modification, alteration, or within the comment period, the repair on the unsafe condition addressed by This incorporation by reference was regulation would become effective on this AD; and, if the unsafe condition has not approved by the Director of the Federal November 4, 1999. No adverse
VerDate 12-OCT-99 19:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56429 comments were received, and thus this OFFICE OF THE TRADE thus be assessed the lower rate of duty notice confirms that this direct final rule REPRESENTATIVE applicable to in-quota imports, based on will become effective on that date. whether the country has issued (or Issued in Kansas City, MO on October 1, 15 CFR Part 2014 authorized issuance of) an export 1999. certificate for that lamb meat. Two Implementation of the Temporary Richard L. Day countries, Australia and New Zealand, Tariff-Rate Quota for Imports of Lamb were provided specific in-quota Acting Manager, Air Traffic Division, Central Meat Region. allocations under the TRQ. Both [FR Doc. 99–27286 Filed 10–19–99; 8:45 am] AGENCY: Office of the United States governments have requested USTR to BILLING CODE 4910±13±M Trade Representative. establish an export certificate procedure ACTION: Interim rule with request for to assist in the orderly marketing of comments. their lamb meat exports to the United DEPARTMENT OF TRANSPORTATION States while the TRQ is in effect. SUMMARY: This rule provides for the Federal Aviation Administration establishment of an export certificate A country wishing to avail itself of the procedure to assist in the orderly export certificate procedure must notify 14 CFR Part 71 marketing of lamb meat imports from USTR, and provide the necessary countries provided a specific import supporting information. Australia and [Airspace Docket No. 99±ACE±37] allocation under the temporary tariff- New Zealand have provided the rate quota that the President has requisite supporting information, and Amendment to Class E Airspace; Ava, imposed on those products. USTR hereby determines that both countries are ‘‘participating countries’’ MO DATES: Interim rule effective on October 20, 1999. Comments must be received under the export certificate procedure. AGENCY: Federal Aviation on or before December 20, 1999. USTR intends to publish a notice in the Administration, DOT. Federal Register if Australia or New ADDRESSES: Comments may be sent to Zealand ceases to be a participating ACTION: Direct final rule; confirmation of Teresa Howes, Director for Asian country. effective date. Agricultural Affairs, Office of the United States Trade Representative, 600 17th U.S. Customs will ensure that no SUMMARY: This document confirms the Street NW, Washington, DC 20506. imports of lamb meat from a effective date of a direct final rule which FOR FURTHER INFORMATION CONTACT: participating country are counted revises Class E airspace at Ava, MO. Teresa Howes, Director for Asian against the participating country’s in- DATES: The direct final rule published at Agricultural Affairs, Office of the United quota allocation unless the importer 64 FR 44397 is effective on 0901 UTC, States Trade Representative, 600 17th declares that there is a valid export November 4, 1999. Street, NW, Washington, DC 20508; certificate for that lamb meat. In the FOR FURTHER INFORMATION CONTACT: telephone: (202) 395–6127. absence of such a declaration, such Kathy Randolph, Air Traffic Division, SUPPLEMENTARY INFORMATION: On July 7, imports will be not be eligible for the in- Airspace Branch, ACE–520C, Federal 1999, the President issued Proclamation quota rate of duty. Aviation Administration, 601 East 12th 7208 (64 FR 37387) (July 9, 1999), U.S. Customs will separately issue Street, Kansas City, Missouri 64106; which established a temporary tariff-rate regulations governing its telephone: (816) 426–3408. quota (‘‘TRQ’’) and increased duties, implementation of this rule. effective July 22, 1999, on lamb meat SUPPLEMENTARY INFORMATION: The FAA Comments published this direct final rule with a imports to facilitate the domestic request for comments in the Federal industry’s adjustment to import Before adopting this interim Register on August 16, 1999 (64 FR competition. In order to provide for the regulation as a final rule, consideration 44397). The FAA uses the direct final efficient and fair administration of the will be given to any written comments rulemaking procedure for a non- TRQ, on July 30, 1999, the President that are timely submitted to USTR. Each controversial rule where the FAA issued Proclamation 7214 (64 FR 42265) person submitting a comment should believes that there will be no adverse (Aug. 4, 1999), which delegated to the include his or her name and address, public comment. This direct final rule United States Trade Representative and give reasons for any advised the public that no adverse (‘‘USTR’’) authority to administer the recommendation. After the comment comments were anticipated, and that TRQ. period closes, USTR will publish in the To provide for the efficient and fair unless a written adverse comment, or a Federal Register a final rule on this administration of the TRQ, USTR is written notice of intent to submit such subject, together with a discussion of establishing a procedure under which an adverse comment, were received comments received and any countries that have been allotted an in- within the comment period, the amendments made to the interim rule as quota allocation under the TRQ may use regulation would become effective on a result of the comments. a system of export certificates to ensure November 4, 1999. No adverse To simplify the processing and comments were received, and thus this that only those of its lamb meat exports specifically designated for the United consideration of comments, commenters notice confirms that this direct final rule are encouraged to submit documents in will become effective on that date. States market are counted against the country’s in-quota allocation. electronic form accompanied by an Issued in Kansas City, MO, on October 1, Under the interim rule, a country that original and one paper copy. All 1999. was provided a specific in-quota documents submitted in electronic form Richard L. Day allocation under the TRQ may elect to should be on DOS formatted 3.5’’ Acting Manager, Air Traffic Division, Central have the United States Customs Service diskettes, and should be prepared in Region. (‘‘U.S. Customs’’) determine which lamb either WordPerfect format or a format [FR Doc. 99–27287 Filed 10–19–99; 8:45 am] meat imports are to be counted against that the WordPerfect program can BILLING CODE 4910±13±M the country’s in-quota allocation, and convert and import into WordPerfect.
VerDate 12-OCT-99 19:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 56430 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations
The Regulatory Flexibility Act and (b) In-quota lamb meat means lamb Manual and is providing for its Executive Order 12866 meat that is entered under the in-quota incorporation by reference into the Code Pursuant to the provisions of 5 U.S.C. rate of duty. of Federal Regulations. The Commission 553 (a), public notice is inapplicable to (c) Participating country means any is also amending Form ID, the Uniform this interim rule because it is within the country to which an allocation of a Application for Access Codes to File on foreign affairs function of the United particular quantity of lamb meat has EDGAR. States. Also, for the above reason, there been assigned under Proclamation 7208 EFFECTIVE DATE: October 18, 1999. The is no need for a delayed effective date that USTR has determined is, and has new edition of the EDGAR Filer Manual under 5 U.S.C. 553(d). No regulatory notified to the United States Customs (Release 6.6) will be effective on flexibility analysis is required for this Service as being, eligible to use export October 18, 1999. The incorporation by rule since neither 5 U.S.C. 553 nor any certificates. reference of the EDGAR Filer Manual is other provision of law requires (d) Enter or Entered means to enter or approved by the Director of the Federal publication of a general notice of withdraw from warehouse for Register as of October 18, 1999. proposed rulemaking with respect to consumption. FOR FURTHER INFORMATION CONTACT: In this rule. Because no notice of proposed (e) HTS means the Harmonized Tariff the Office of Information Technology, rulemaking is required for interim Schedule of the United States. Michael E. Bartell at (202) 942–8800; for regulations, the provisions of the (f) USTR means the United States questions concerning investment Regulatory Flexibility Act (5 U.S.C. 601 Trade Representative or the designee of company filings, Ruth Armfield et seq.) do not apply; and because this the United States Trade Representative. Sanders, Senior Special Counsel, document involves a foreign affairs § 2014.3 Export certificates. Division of Investment Management, at (202) 942–0978; and for questions function of the United States and (a) In-quota lamb meat may only be concerning Corporation Finance implements an international agreement, entered as a product of a participating company filings, Herbert Scholl at (202) it is not subject to the provisions of E.O. country if the United States importer 942–2930. 12866. makes a declaration to the United States SUPPLEMENTARY INFORMATION: List of Subjects in 15 CFR Part 2014 Customs Service, in the form and Today we manner determined by the United States are adopting an updated EDGAR Filer Export certificates, Imports, Lamb Customs Service, that a valid export Manual (‘‘Filer Manual’’), which meat, Tariff-rate quotas. certificate is in effect with respect to describes the technical formatting For the reasons set out in the that lamb meat product. requirements for the preparation and ‘‘Supplementary Information’’ section of (b) To be valid, an export certificate submission of electronic filings through this notice, 15 CFR is amended by shall: the Electronic Data Gathering, Analysis, 1 adding the following new part 2014 to (1) Be issued by or under the and Retrieval (EDGAR) system. Filers read as follows: supervision of the government of the must comply with the provisions of the participating country; Filer Manual in order to assure the PART 2014ÐIMPLEMENTATION OF (2) Specify the name of the exporter, timely acceptance and processing of TARIFF-RATE QUOTA FOR IMPORTS 2 the product description and quantity, filings made in electronic format. Filers OF LAMB MEAT and the calendar year for which the should consult the Filer Manual in Sec. export certificate is in effect; conjunction with our rules governing 2014.1 Purpose. (3) Be distinct and uniquely mandated electronic filing when 2014.2 Definitions. identifiable; and preparing documents for electronic 3 2014.3 Export certificates. (4) Be used in the calendar year for submission. Authority: Proclamation Numbers 7208 which it is in effect. The purpose of this new version of EDGAR and the Filer Manual (Release and 7214; 19 U.S.C. 2253 (g) Robert T. Novick, 6.6) is to incorporate changes resulting § 2014.1 Purpose. General Counsel, Office of the United States Trade Representative. The purpose of this part is to provide 1 We orginally adopted the Filer Manual on April for the implementation of the tariff-rate [FR Doc. 99–27426 Filed 10–18–99; 8:45 am] 1, 1993, with an effective date of April 26, 1993. BILLING CODE 3190±01±P Release No. 33–6986 (Apr. 1, 1993) [58 FR 18638]. quota for imports of lamb meat We implemented the most recent update to the Filer established in Proclamation 7208 (64 FR Manual on June 28, 1999. See Release No. 33–7685 37397) (July 9, 1999) and modified in (May 17, 1999) [64 FR 27897]. Proclamation 7214 (64 FR 42265) (Aug. SECURITIES AND EXCHANGE 2 See Rule 301 of Regulation S–T (17 CFR 4, 1999). In particular, this part provides COMMISSION 232.301). 3 See Release Nos. 33–6977 (Feb. 23, 1993) [58 FR for the administration of export 14628], IC–19284 (Feb. 23, 1993) [58 FR 14848], 35– certificates where a country that has an 17 CFR Parts 232, 239, 249, 259, 269 and 274 25746 (Feb. 23, 1993) [58 FR 14999], and 33–6980 allocation of the in-quota quantity under (Feb. 23, 1993) [58 FR 15009] in which we the tariff-rate quota has chosen to use [Release Nos. 33±7752; 34±41986; 35± comprehensively discuss the rules we adopted to 27081; 39±2376; IC±24075] govern mandated electronic filing. See also Release export certificates. No. 33–7122 (Dec. 19, 1994) [59 FR 67752], in § 2014.2 Definitions. RIN 3235±AG96 which we made the EDGAR rules final and applicable to all domestic registrants; Release No. Unless the context otherwise requires, Adoption of Updated EDGAR Filer 33–7427 (July 1, 1997) [62 FR 36450], in which we for the purpose of this subpart, the adopted minor amendments to the EDGAR rules; Manual Release No. 33–7472 (Oct. 24, 1997) [62 FR 58647], following terms shall have the meanings in which we announced that, as of January 1, 1998, assigned below. AGENCY: Securities and Exchange we would not accept in paper filings that we (a) Lamb meat means fresh, chilled, or Commission. require filers to submit electronically; Release No. frozen lamb meat, provided for in 34–40935 (Jan. 12, 1999) [64 FR 2843], in which we ACTION: Final rule. made mandatory the electronic filing of Form 13F; subheadings 0204.10.00, 0204.22.20, and Release No. 33–7684 (May 17, 1999) [64 FR 0204.23.20, 0204.30.00, 0204.42.20, and SUMMARY: The Commission is adopting 27888], in which we adopted amendments to 0204.43.20 of the HTS. an updated edition of the EDGAR Filer implement the first stage of EDGAR modernization.
VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.107 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56431 from the decision by CompuServe, a ID>. We have revised the Filer Manual securities offerings or the filing of sub-contractor to TRW the developer of to reflect the changes described.4 timely public disclosures. In addition, the EDGAR system, to discontinue its We have revised Form ID,5 the we find there is good cause for the EDGAR services as of October 16, 1999. Uniform Application for Access Codes changes to the Form ID becoming The changes in the Filer Manual are due to File on EDGAR, to reflect the change effective in less than 30 days after to the change in the sub-contractor for in the EDGAR private mail service. We publication because of the minor and the public data network for transmission have also included an additional line in technical nature of those changes. the Form ID for an optional Internet e- of filings to EDGAR, private mailboxes Statutory Basis for receiving EDGAR acceptance/ mail address. We are amending Rule 301 of We are adopting the amendments to suspension messages, and electronic Regulation S–T to provide for the Regulation S–T and Form ID under return copies of filings. The EDGAR incorporation by reference of the Filer Sections 6, 7, 8, 10, and 19(a) of the bulletin board and the EDGAR company Manual into the Code of Federal Securities Act,9 Sections 3, 12, 13, 14, database will no longer be available, but Regulations, which incorporation by 15, 23, and 35A of the Securities filers may obtain similar information reference was approved by the Director Exchange Act of 1934,10 Section 20 of from our Web Site at www.sec.gov and of the Federal Register in accordance the Public Utility Holding Company Act the TRW/UUNET Web Site at www.trw- with 5 U.S.C. 552(a) and 1 CFR part 51. of 1935,11 Section 319 of the Trust edgar.com. The revised Filer Manual and the Indenture Act of 1939,12 and Sections 8, Filers who chose to use the TRW/ amendments to Rule 301 and to Form ID 30, 31, and 38 of the Investment UUNET services may sign up using the will be effective on October 18,1999. Company Act.13 You may obtain paper copies of the Web Site at www.trw-edgar.com by List of Subjects filling out a questionnaire. TRW/ updated Filer Manual at the following UUNET will send new account address: Public Reference Room, U.S. 17 CFR Part 232 Securities and Exchange Commission, information and a password. Filers who Incorporation by reference, Reporting 450 Fifth Street, NW, Washington DC cannot access the web site can call 703– and recordkeeping requirements, 20549–0102. We will post electronic 345–8900 for sign up information. The Securities. format copies on the SEC’s Web Site. basic TRW/UUNET service will include The SEC’s Web Site address for the Filer 17 CFR Parts 239, 249, 259, 269 and 274 five hours of access and a mailbox for Manual is http://www.sec.gov/asec/ofis/ messages. There will be additional Reporting and recordkeeping filerman.htm. You may also obtain requirements, Securities. charges for larger mailboxes and copies from Disclosure Incorporated, the connect time over the basic limit. Those paper and microfiche contractor for the Text of the Amendment filers who want to use the public data Commission, at (800) 638–8241. network for transmission to EDGAR, In accordance with the foregoing, Since the Filer Manual (including Title 17, Chapter II of the Code of who want a private system (instead of Form ID) relates solely to agency the Internet) for receipt of acceptance/ Federal Regulations is amended as procedures or practice, publication for follows: suspense messages, or who want an notice and comment is not required electronic returned copy of their filings under the Administrative Procedure Act PART 232ÐREGULATION S-TÐ must sign up for this service. To access (APA).6 It follows that the requirements GENERAL RULES AND REGULATIONS their new mailboxes, filers must use a of the Regulatory Flexibility Act 7 do not FOR ELECTRONIC FILINGS standard POP3 mail client. Netscape apply. Communicator, Microsoft Internet The effective date for the updated 1. The authority citation for part 232 Explorer and several other Internet Filer Manual and the rule and form continues to read as follows: packages provide these clients. The amendments is October 18, 1999. In Authority: 15 U.S.C. 77f, 77g, 77h, 77j, www.trw-edgar.com Web Site contains accordance the APA,8 we find that there 77s(a), 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), additional information. is good cause to establish an effective 78w(a), 78ll(d), 79t(a), 80a–8, 80a–29, 80a–30 date less than 30 days after publication and 80a–37. We will install the new EDGAR of these rules and forms. The changes in private mail service on Saturday, 2. Section 232.301 is revised to read the Filer Manual are due to the change October 16, 1999. We will begin as follows: in the sub-contractor for the public data delivering messages and return copies to network for transmission of filings to § 232.301 EDGAR Filer Manual. the new mailboxes on Monday, October EDGAR, private mailboxes for receiving Filers must prepare electronic filings 18, 1999. We will also make the new EDGAR acceptance/suspension in the manner prescribed by the EDGAR public data network available for messages, and electronic return copies Filer Manual, promulgated by the transmissions on Monday, October 18, of filings. If the changes do not become Commission, which sets out the 1999. effective by October 18, it is likely that technical formatting requirements for Due to the switch in private mail the ability of EDGAR users to make electronic submissions. The October service, we are making several changes filings and send messages would be 1999 edition of the EDGAR Filer to the EDGAR system that deal with disrupted. This in turn could disrupt Manual: Guide for Electronic Filing with notification and the naming of certain the U.S. Securities and Exchange tags. EDGAR will no longer support 4 In addition, we have revised Appendix C of the Commission (Release 6.6) is Filer Manual to update the pages entitled, incorporated by reference into the Code numeric private mail addresses (e.g., ‘‘Examples of Document Header Tag Values for 75200,1024). The format for EDGAR Investment Company Exhibits,’’ and we have added of Federal Regulations, which action private mail user IDs is 8 to12 upper examples of header tags for Form N–SAR exhibits. case alphabetical and numeric 5 17 CFR 239.63, 249.446, 259.602, 269.7 and 9 15 U.S.C. 77f, 77g, 77h, 77j and 77s(a). 10 characters with an optional dash (-). We 274.402. 15 U.S.C. 78c, 78l, 78m, 78n, 78o, 78w and 78ll. 6 5 U.S.C. 553(b). 11 15 U.S.C. 79t. have renamed the tag VerDate 12-OCT-99 19:23 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 56432 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations was approved by the Director of the 8. By revising Form ID (referenced in 1940 Act No. Federal Register in accordance with 5 §§ 239.63, 249.446, 259.602, 269.7 and 811–ll ll U.S.C. 552(a) and 1 CFR part 51. You 274.402 of this chapter) to read as 814– must comply with these requirements in follows: Other No. l–l order for documents to be timely Note—The text of Form ID does not appear l l received and accepted. You can obtain – in the Code of Federal Regulations. lllllllllllllllllllll paper copies of the EDGAR Filer OMB APPROVAL Manual from the following address: OMB Number: 325–0328 Registrant’s tax number or federal Public Reference Room, U.S. Securities Expires: May 31, 2001 identification number and Exchange Commission, 450 Fifth Estimated average burden hours per Telephone number (include area code) lllllllllllllllllllll Street, NW, Washington, DC 20549– response: 0.15 0102 or by calling Disclosure United States Securities and Exchange Primary business address or post office box Incorporated at (800) 638–8241. Commission, no. (if different from mailing address) Electronic format copies are available on Washington, DC 20549 City State Zip the SEC’s Web Site. The SEC’s Web Site Applicant’s CIK (if known) lllllllllllllllllllll address for the Manual is http:// Form ID—Uniform Application for Access State of incorporation/organization www.sec.gov/asec/ofis/filerman.htm. Codes To File on Edgar Fiscal year end (mm/dd) lllllllllllllllllllll Information on becoming an EDGAR e- [ ] Initial application [ ] Amendment mail/electronic bulletin board Part I—Application for Access Codes To File Part III—Contact Information (to be subscriber is available by contacting on Edgar completed by all applicants) TRW/UUNET at (703) 345–8900 or at lllllllllllllllllllll lllllllllllllllllllll www.trw-edgar.com. Name of applicant (registrant’s name as Person to receive EDGAR information, PART 239ÐFORMS PRESCRIBED specified in its charter; individual’s name for inquiries and access codes lllllllllllllllllllll UNDER THE SECURITIES ACT OF 1933 signature purposes; company or individual name of filing agent or training agent). Telephone number (include area code): ( ) 3. The authority citation for Part 239 lllllllllllllllllllll lllllllllllllllllllll continues to read in part as follows: Former name (if changed since last Mailing address or post office box no. (if application) different from applicant’s mailing address) Authority: 15 U.S.C. 77ddd(c), 77eee, lllllllllllllllllllll 77ggg, 77hhh, 77iii, 77jjj, 77sss, 78ll(d), City State Zip unless otherwise noted. Mailing address or post office box no.: E-Mail Address: City State Zip lllllllllllllllllllll PART 249ÐFORMS, SECURITIES Telephone number: ( ) If you are an EDGAR Private Mail subscriber, EXCHANGE ACT OF 1934 E-Mail Address: provide your User ID: lllllllllllllllllllll lllllllllllllllllllll 4. The authority citation for Part 249 continues to read in part as follows: Applicant is a (see definitions in the General Part IV—Account Information (to be Instructions): completed by filers and filing agents only) Authority: 15 U.S.C. 77ddd(c), 77eee, lllllllllllllllllllll 77ggg, 77hhh, 77iii, 77jjj, 77sss, 78ll(d), [ ] Filer [ ] Filing agent [ ] Training agent unless otherwise noted. lllllllllllllllllllll Person to receive SEC account information and billing invoices PART 259ÐFORMS PRESCRIBED [ ] Initial application for EDGAR access Telephone number (include area code) ( ) UNDER THE PUBLIC UTILITY codes. lllllllllllllllllllll lllllllllllllllllllll HOLDING ACT OF 1935 Mailing address or post office box no. (if [ ] Amended application for (see definitions different from applicant’s mailing address) 5. The authority citation for Part 259 in the General Instructions): City State Zip continues to read in part as follows: [ ] CCC [ ] Password [ ] PMAC lllllllllllllllllllll lllllllllllllllllllll Authority: 15 U.S.C. 77ddd(c), 77eee, Part V—Signature (to be completed by all 77ggg, 77hhh, 77iii, 77jjj, 77sss, 78ll(d), [ ] Amended application to change reported applicants) unless otherwise noted. information only (access codes to remain the lllllllllllllllllllll same) PART 269ÐFORMS PRESCRIBED lllllllllllllllllllll Signature: Type or print name: UNDER THE TRUST INDENTURE ACT lllllllllllllllllllll OF 1939 Part II—Filer Information (to be completed by filers only) Position or title: Date: lllllllllllllllllllll 6. The authority citation for Part 269 lllllllllllllllllllll Section 19 of the Securities Act of 1933 (15 continues to read in part as follows: If you currently file with the SEC, check this U.S.C. 77s), sections 13(a) and 23 of the Authority: 15 U.S.C. 77ddd(c), 77eee, box [ ] and provide at least one of your SEC Securities Exchange Act of 1934 (15 U.S.C. 77ggg, 77hhh, 77iii, 77jjj, 77sss, 78ll(d), file numbers, if known: 78m(a) and 78w), section 319 of the Trust unless otherwise noted. 1933 Act No. Indenture Act of 1939 (15 U.S.C. 77sss), 2–ll section 20 of the Public Utility Holding PART 274ÐFORMS PRESCRIBED 33–ll Company Act of 1935 (15 U.S.C. 79t) and UNDER THE INVESTMENT COMPANY 333–ll sections 30 and 38 of the Investment Company Act of 1940 (15 U.S.C. 80a-29 and ACT OF 1940 1934 Act No. ll 30a-37) authorize solicitation of this 0– information. We will use this information to 7. The authority citation for Part 274 1–ll continues to read in part as follows: ll assign system identification to filers, filing 28– agents, and training agents. This will allow Authority: 15 U.S.C. 77ddd(c), 77eee, 1935 Act No. the Commission to identify persons sending 77ggg, 77hhh, 77iii, 77jjj, 77sss, 78ll(d), 70–ll electronic submissions and grant secure unless otherwise noted. 69–ll access to the EDGAR system. VerDate 12-OCT-99 19:23 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56433 SEC (x/xx) Persons who potentially are to We do not require state of incorporation/ Customs Modernization provisions of respond to the collection of information organization or fiscal year end for the North American Free Trade contained in this form are not required to individuals. We request that foreign private Agreement Implementation Act. Under respond unless the form displays a currently issuers include their country of organization. that statute, interest accrues initially valid OMB control number. Part III—Contact Information (to be from the date the duties, taxes, fees and Form ID—General Instructions completed by all applicants) interest are deposited with Customs in Using and Preparing Form ID In this section, identify the individual who the case of overpayments, or are should receive the access codes and EDGAR- Use Form ID to apply for or to amend the required to be deposited with Customs related information. following EDGAR codes: in the case of underpayments, but in Central Index Key (CIK)—The CIK If you are or become an EDGAR Private Mail either case not beyond the date of uniquely identifies each filer, filing subscriber, you can receive acceptance and liquidation or reliquidation of the agent, and training agent. We assign the suspension messages and any requested applicable entry or reconciliation. Also CIK at the time you make an initial return copies of your filings via electronic under the statute and applicable judicial application. You may not change this mail at your expense. If you do not subscribe precedent, all bills issued by Customs to EDGAR Private Mail, you can receive your code for underpayments of duties, taxes, fees CIK Confirmation Code (CCC)—You will acceptance and suspension messages via use the CCC in the header of your filings Internet E-Mail if you provide an address. We and interest are due within 15 or 30 in conjunction with your CIK to ensure will not send return copies of filings to an days of issuance. In addition, the that you authorized the filing Internet address. document conforms the Customs Password (PW)—The PW allows you to log Part IV—Account Information (to be Regulations to other changes to 19 onto the EDGAR system, submit filings, completed by filers and filing agents only) U.S.C. 1505 and to section 321 of the and change your CCC Identify in this section the individual who Tariff Act of 1930 (19 U.S.C. 1321) Password Modification Authorization Code regarding interest that were made by (PMAC)—The PMAC allows you to should receive account information and/or billing invoices from us. We will use this sections 2(a) and 3(a)(12) of the change your password Miscellaneous Trade and Technical Please see the EDGAR Filer Manual for information to electronically process fee instructions on how to file electronically, payments and billings. Corrections Act of 1996. including how to use the access codes Part V—Signature (to be completed by all DATES: Interim rule effective October 20, You must complete all items in any parts applicants) 1999. Comments must be received on or which apply to you. If any item in any Send your manually signed and dated form before December 20, 1999. part does not apply to you, please mark to: Branch of Filer Support, U.S. Securities ADDRESSES: Written comments that part ‘‘NA.’’ If your form is and Exchange Commission, Operations (preferably in triplicate) may be incomplete, it may take us longer to Center, Stop 0–7, 6432 General Green Way, addressed to the Regulations Branch, assign your access codes Alexandria, VA 22312. Office of Regulations and Rulings, U.S. Part I—Applicant Information (to be Dated: October 7, 1999. Customs Service, 1300 Pennsylvania completed by all applicants) By the Commission. Avenue, N.W., Washington, D.C. 20229. Please check the appropriate box to indicate Margaret H. McFarland, Comments submitted may be inspected whether you will be sending electronic Deputy Secretary. at the Regulations Branch, Office of submissions as a filer, filing agent, or training Regulations and Rulings, U.S. Customs [FR Doc. 99–26985 Filed 10–19–99; 8:45 am] agent. Mark only one of these boxes per Service 1300 Pennsylvania Avenue, application. A ‘‘filer’’ is any person or entity BILLING CODE 8010±01±P N.W., 3rd Floor, Washington, D.C. on whose behalf an electronic filing is made. A ‘‘filing agent’’ is a financial printer, law FOR FURTHER INFORMATION CONTACT: Robert Reiley, Financial Management firm, or other party which will be using these DEPARTMENT OF THE TREASURY access codes to send a filing or portion of a Division (202–927–1504). filing on behalf of a filer. A ‘‘training agent’’ Customs Service SUPPLEMENTARY INFORMATION: is any person or entity which will be sending Background only test filings in conjunction with training 19 CFR Parts 24, 159 and 174 other persons. Present Regulatory Provisions If you do not already have access codes, [T.D. 99±75] please mark the ‘‘Initial application’’ box, The regulatory provisions amended RIN 1515±AB76 and complete all other items in Parts II by this document are as follows: Section 24.1 of the Customs through V that apply to you. Interest on Underpayments and Regulations (19 CFR 24.1) sets forth If you already have access codes, please Overpayments of Customs Duties, general procedures governing the provide your CIK in the upper left corner, Taxes, Fees and Interest and mark the boxes to indicate the reason collection of ‘‘Customs duties, taxes, you are filing the amendment and any access AGENCY: U.S. Customs Service, and other charges,’’ including the codes you want to replace. You also should Department of the Treasury. permissible methods of payment. complete Part V (signature) and those items ACTION: Interim rule. Section 24.3 of the Customs in Parts II through IV which have changed Regulations (19 CFR 24.3) sets forth from the previous application. You may SUMMARY: This document conforms the general provisions regarding the change your access codes (except your PMAC) and most other information on Form Customs Regulations to existing rendering and payment of bills or ID electronically via EDGAR. See the EDGAR statutory provisions and judicial accounts for money due the United Filer Manual for details. precedent regarding the assessment of States and the issuance of receipts Part II—Filer Information (to be completed by interest due to underpayments or therefor. Paragraph (e) of that section filers only) overpayments to Customs of duties, provides that (1) a bill for increased or taxes and fees pertaining to imported additional duties determined to be due The registrant’s tax or federal identification number is the number issued by the Internal merchandise, including interest thereon. upon a liquidation or reliquidation is Revenue Service. Foreign private issuers The majority of the conforming changes due 15 days from the date of such should include all zeroes if they do not have reflect the terms of section 505 of the liquidation or reliquidation and (2) all a tax or federal identification number. (We do Tariff Act of 1930 (19 U.S.C. 1505), as other bills are due and payable upon the not require this number for individuals.) amended by section 642(a) within the bill date appearing on the bill. VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.104 pfrm03 PsN: 20OCR1 56434 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Section 24.3a of the Customs this amendment, section 505 consisted subsection (b) now provides (1) that Regulations (19 CFR 24.3a) contains of three subsections covering the duties, fees, and interest determined to detailed provisions regarding Customs deposit of estimated duties (subsection be due upon liquidation or reliquidation bills for supplemental duties (increased (a)), the collection of increased or are due 30 days after issuance of the bill or additional duties assessed upon additional duties and the refund of for payment and (2) that refunds of liquidation or reliquidation), excess duties deposited as determined excess moneys deposited, together with reimbursable services, and on a liquidation or reliquidation interest thereon, shall be paid within 30 miscellaneous amounts (bills other than (subsection (b)), and the due date for days of liquidation or reliquidation. duties, taxes, reimbursable services, duties determined to be due upon Thus, in addition to the inclusion of liquidated damages, fines, and liquidation or reliquidation, new references to the collection of fees penalties), including interest thereon. delinquency, and interest on delinquent and interest, to the refund of excess Section 24.11 of the Customs duty payments (subsection (c)). Section ‘‘moneys’’ (which would include fees) Regulations (19 CFR 24.11) concerns the 505, as amended by section 642(a) of the and interest thereon, and to a due date issuance of bills for ‘‘increased or Act, now contains the following based on the issuance of a bill, section additional duties or taxes found due provisions: 505, as amended, prescribes a specific upon liquidation’’ and provides for 1. Subsection (a) of amended section time limit for the payment of refunds issuance of such bills to the importer of 505 requires the importer of record to and no longer provides that duties record or, in certain circumstances, to deposit with Customs, at the time of determined to be due upon liquidation the actual owner. making entry or at such later time as the or reliquidation shall be due 15 days Section 24.25 of the Customs Secretary of the Treasury may prescribe after the date of that liquidation or Regulations (19 CFR 24.25) concerns by regulation, the amount of duties ‘‘and reliquidation (see also the discussion of statement processing and automated fees’’ estimated to be payable on the subsection (d) below). clearinghouse filing and payment entry. In addition, subsection (a) now 3. Subsection (c) of amended section procedures and, in the second sentence provides (1) that the regulations 505 is essentially new and provides (1) of paragraph (a), refers to a single prescribed by the Secretary may provide that interest assessed due to an payment of ‘‘duties, taxes and fees.’’ that estimated duties and fees shall be underpayment of duties, fees, or interest Section 24.36 of the Customs deposited before or at the time an shall accrue, at a rate determined by the Regulations (19 CFR 24.36) concerns import activity summary statement is Secretary of the Treasury, from the date refunds of excessive duties or taxes, and filed and (2) that if an import activity the importer of record is required to paragraph (a) thereof specifically summary statement is filed, the deposit estimated duties, fees, and provides for preparation of a refund estimated duties and fees shall be interest to the date of liquidation or ‘‘[w]hen it is found on liquidation or deposited together with interest, at a reliquidation of the applicable entry or reliquidation of an entry that a refund rate determined by the Secretary of the reconciliation and (2) that interest on of excessive duties or taxes, or both, is Treasury, accruing from the first date of excess moneys deposited shall accrue, due.’’ the month the statement is required to at a rate determined by the Secretary of Section 159.6 of the Customs be filed until the date such statement is the Treasury, from the date the importer Regulations (19 CFR 159.6) concerns the actually filed. (An import activity of record deposits estimated duties, fees, treatment by Customs of differences of summary statement is a filing procedure and interest to the date of liquidation or less than $20 and $20 or more, between provided for in section 484 of the Tariff reliquidation of the applicable entry or estimated deposits and amounts Act of 1930, as amended [19 U.S.C. reconciliation. (Reconciliation is a assessed on liquidation. This section 1484], and was added by section 637(a) procedure provided for in section 484 of specifically refers in these contexts to of the Act to permit the filing of a single the Tariff Act of 1930, as amended [19 ‘‘duties, fees, and taxes’’ or to ‘‘duties statement, covering entry or warehouse U.S.C. 1484], and was added by section and fees and internal revenue taxes.’’ withdrawal transactions made during a 637(a) of the Act to allow elements of Section 174.11 of the Customs calendar month, within such time an electronic entry summary or Regulations (19 CFR 174.11) sets forth period as prescribed by the Secretary of electronic import activity summary the matters that may be the subject of an the Treasury by regulation but not later statement [other than those elements administrative protest. Paragraph (c) of than the 20th day following such related to the admissibility of the that section specifically refers to calendar month. Implementation of the merchandise], if undetermined at the ‘‘charges or exactions’’ of whatever import activity summary statement time the summary or statement is filed, character within the jurisdiction of the procedure will be the subject of a to be provided to Customs at a later Secretary of the Treasury. separate regulatory action and thus is time. Reconciliation will be Section 174.12 of the Customs not dealt with in this document.) Thus, implemented by separate regulatory Regulations (19 CFR 174.12) sets forth in order to avoid a potential conflict action and thus is not substantively the procedures for filing a protest. with the import activity summary addressed in this document.) Thus, the Paragraph (a)(2) of that section provides statement procedure, subsection (a), as importer of record is liable for interest that a protest may be filed by any person amended, no longer contains a 30-day on underpaid amounts from the date ‘‘paying any charge or exaction.’’ limitation on the authority of the those amounts should have been paid to Secretary of the Treasury to prescribe by Customs, and, conversely, the importer Customs Modernization Statutory regulation for the deposit of estimated of record is entitled to interest on Changes duties after the date of entry. refunds of payments made to Customs The Customs Modernization 2. Subsection (b) of amended section in excess of the amount properly due. provisions contained in Title VI of the 505 requires Customs to collect any 4. Finally, subsection (d) of amended North American Free Trade Agreement increased or additional duties ‘‘and fees section 505 provides (1) that if duties, Implementation Act (‘‘the Act’’), Public due, together with interest thereon,’’ fees, and interest determined to be due Law 103–182, 107 Stat. 2057, included, and to ‘‘refund any excess moneys or refunded are not paid in full within in section 642(a), an extensive deposited, together with interest the 30-day period specified in amendment of section 505 of the Tariff thereon,’’ as determined on a subsection (b), any unpaid balance shall Act of 1930 (19 U.S.C. 1505). Prior to liquidation or reliquidation. In addition, be considered delinquent and bear VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.061 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56435 interest by 30-day periods, at a rate as part of the Miscellaneous Trade and due Customs and thus covers both determined by the Secretary of the Technical Corrections Act of 1996 (‘‘the initial payments and supplemental Treasury, from the date of liquidation or Miscellaneous Act’’), Public Law 104– payments pursuant to a bill issued by reliquidation until the full balance is 295, 110 Stat. 3514. These statutory Customs, the added ‘‘interest’’ paid and (2) that no interest shall accrue changes, which require conforming references are intended to cover (1) any during the 30-day period in which regulatory changes, were as follows: interest that may be initially due on payment is actually made. In addition, 1. Section 2(a) of the Miscellaneous estimated duties and fees under the subsection (d) of amended section 505 Act amended section 505(c) to provide import activity summary statement reflects the terms of present § 24.3a(c)(3) that, in the case of a claim under 19 procedure mentioned above to be of the regulations in that it provides for U.S.C. 1520(d) (that is, a NAFTA post- implemented later and (2) any interest a 30-day period for payment both before importation claim for a refund of duty), assessed on underpayments and and once a delinquency occurs, during interest on the excess money deposited delinquent payments of principal which period no additional interest shall accrue from the date on which the amounts and interest thereon under (that is, on any outstanding principal claim is made; under section 2(b) of the § 24.3a. However, no reference to amount, plus interest thereon) will Miscellaneous Act, the section 2(a) ‘‘interest’’ has been added in paragraph accrue so long as full payment of the amendment applies to claims made on (a)(7) of § 24.1 because this paragraph amount outstanding is made during that or after June 7, 1996. Since this statutory concerns initial credit or charge card current 30-day period. Thus, section 505 amendment relates only to interest on payments on non-commercial no longer allows for delinquency and excess deposits, Customs believes that it transactions, which would never interest accrual only after 45 days should be reflected in the § 24.36 refund involve an interest payment. following liquidation or reliquidation. provisions. Section 24.3 This is because the statutory 2. Section 3(a)(12) of the delinquency period is now 30 days and Miscellaneous Act amended section The first sentence of § 24.3(b) is because under the statute initial interest 321(a) of the Tariff Act of 1930 (19 amended by adding references to the accrual on underpayments runs from U.S.C. 1321(a)) by the addition of payment of estimated ‘‘fees’’ and the date of required deposit of moneys several references to ‘‘interest.’’ The ‘‘interest’’ in order to align the text on rather than only when a delinquency addition of these references extends the the terminology used in amended has occurred. authority of the Secretary of the section 505. The words ‘‘if applicable’’ Customs has determined that the Treasury to include interest in have been included after the added changes to section 505 effected by determining what is a de minimis ‘‘interest’’ reference in recognition of the section 642(a) of the Act as described amount when providing by regulation fact that interest would be required in above require a number of conforming for waiving the collection of de minimis an estimated payment circumstance changes to the provisions of §§ 24.1, amounts on entered merchandise and only in some cases. A reference to the 24.3, 24.3a, 24.11, 24.25 and 24.36 of for disregarding de minimis differences payment of estimated ‘‘taxes’’ has also the regulations. These changes, which between the total estimated deposit or been added to this regulatory text in are explained in more detail below, tentatively assessed amount and the order to reflect the fact that Customs concern principally the inclusion of total amount actually accruing on an collects taxes (e.g. harbor maintenance references to the following: the entry of merchandise; under section 3(b) taxes) at the time of entry as part of the collection or deposit of (estimated) fees of the Miscellaneous Act, the section entry/liquidation process. Prior to the and interest; the collection of increased 3(a)(12) amendments apply as of United States Supreme Court decision or additional fees; the refund of excess December 8, 1993. Customs believes in United States Shoe Corp. v. United fees deposited; the accrual of interest on that the statutory amendment pertaining States, 118 S. Ct. 1290 (1998), Customs underpaid and overpaid duties, fees and to the disregarding of differences considered such harbor maintenance interest from the date of required between the total estimated deposit or assessments to be ‘‘fees.’’ However, the (including actual) deposit to the date of tentatively assessed amount (that is, of Supreme Court held that such liquidation or reliquidation and the duties, fees, and taxes) and the total assessments are ‘‘taxes.’’ Since Customs collection or refund of such accrued amount (of duties, fees, taxes, and continues to be required by law to interest; and the 30-day due date interest) actually accruing (which is collect such assessments and other periods for payments or refunds of normally determined upon liquidation taxes, the regulations are being amended underpaid or overpaid duties, fees and of the entry) should be reflected in to reflect accurately the fact that interest as determined on liquidation or § 159.6 of the regulations which Customs collects taxes at entry. reliquidation. In addition, some of these implements this aspect of the section In addition, the text of § 24.3(e) has regulatory provisions, as well as 321(a) provisions. been revised. The text revision involves §§ 174.11 and 174.12 of the regulations, the following changes: (1) in the first are in need of additional wording Explanation of Amendments sentence, the addition of references to changes, involving principally the The specific regulatory amendments bills for ‘‘fees’’ and ‘‘interest’’ and the addition of references to ‘‘interest’’ or set forth in this document are explained inclusion of a statement that bills are ‘‘taxes’’ or ‘‘refunds,’’ in order to in more detail below. due and payable ‘‘within 30 days of the conform the regulatory texts to the date of issuance of the bill’’; (2) the Section 24.1 principles reflected in applicable elimination of the outdated second judicial decisions; these changes are The amendments to § 24.1 involve the sentence (which provided that a bill for also explained in more detail below. addition of references to ‘‘fees’’ and increased or additional duties is due 15 ‘‘interest’’ in various paragraphs under days from the date of liquidation or Additional Statutory Changes Regarding the section. This is simply intended to reliquidation); and (3) the inclusion of Interest reflect the inclusion of these terms in an exception for bills resulting from Subsequent to the changes to section the text of section 505 as amended by dishonored checks or from dishonored 505 effected by section 642(a) of the Act section 642(a) of the Act. Since § 24.1 Automated Clearinghouse (ACH) as discussed above, additional statutory sets forth general rules for collection transactions, for which the revised text changes regarding interest were enacted (including payment method) of funds prescribes a 15-day bill payment period VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.062 pfrm03 PsN: 20OCR1 56436 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations (see also the changes to § 24.3a has been simplified and references to 40 F.3d 377 (Fed. Cir. 1994); Syva Co. regarding debit vouchers as discussed increased or additional ‘‘fees’’ and v. United States, 681 F. Supp. 885 (CIT and set forth below). The last change ‘‘interest’’ have been inserted in the text 1988); and Travenol Laboratories Inc. v. reflects Customs’ practice of requiring and in the section heading. United States, 118 F.3d 749 (Fed. Cir. that bills for dishonored checks or 1997). In addition, a reference to Section 24.25 dishonored ACH transactions be paid receiving a refund has been added in within 15 days of issuance of the bill. In § 24.25, the second sentence of paragraph (a)(2) of § 174.12. These two Interest assessments on such dishonored paragraph (a) has been amended to changes clarify that both the assessment payments are provided for in the reflect that interest may be due on a and the refund (or non-refund) of amendments to § 24.3a and are statement processing transaction. interest are protestable decisions. authorized because there is no statutory Section 24.36 provision to the contrary. See Billings v. Comments United States, 232 U.S. 261 (1914) and Section 24.36 is amended by revising Before adopting these interim United States v. Goodman, 572 F. Supp. the first sentence of paragraph (a), by regulations as a final rule, consideration 1284 (CIT 1983). adding a new sentence at the end of will be given to any written comments paragraph (a) followed by new Section 24.3a timely submitted to Customs, including paragraphs (a)(1)–(a)(3), by making comments on the clarity of this interim In § 24.3a, the paragraph (a) wording changes in the first sentence of rule and how it may be made easier to discussion of supplemental duties has paragraph (b), and by making similar understand. Comments submitted will been modified to align on the wording changes in paragraph (c). These be available for public inspection in terminology used in subsection (b) of changes reflect the amended section 505 accordance with the Freedom of amended section 505 and to reflect the provisions regarding the refund of Information Act (5 U.S.C. 552), § 1.4, considerations regarding taxes set forth excess moneys deposited and thus Treasury Department Regulations (31 above. Specifically, the words ‘‘taxes include the addition of references to the CFR 1.4), and § 103.11(b), Customs and fees’’ have been included after refund of excessive ‘‘fees’’ and Regulations (19 CFR 103.11(b)), on ‘‘duties’’ in two places, the words ‘‘interest’’ and to the 30-day deadline for normal business days between the hours ‘‘increased or’’ have been included timely refunds, as provided for in of 9 a.m. and 4:30 p.m. at the before ‘‘additional duties’’ within the section 505(b). Similar to the approach Regulations Branch, Office of parentheses, and the words ‘‘together taken in § 24.3a(b)(2)(i) as discussed Regulations and Rulings, U.S. Customs with interest thereon,’’ have been above, the modified § 24.36 text Service, 1300 Pennsylvania Avenue, included after the parenthetical incorporates a number of illustrative N.W., 3rd Floor, Washington, D.C. reference. examples and sets forth several In addition, paragraph (b)(2) of § 24.3a scenarios, involving pre-liquidation Inapplicability of Prior Public Notice has been revised to conform to the terms additional excess deposits and pre- and Comment Procedures and Delayed of amended section 505 regarding the liquidation refunds, that arise in Effective Date Requirements accrual of interest on underpayments of practice and require variations to the Pursuant to the provisions of 5 U.S.C. duties, fees, and interest. In the revised interest computation period under the 553(b)(B), Customs has determined that text, paragraph (b)(2)(i), which concerns basic statutory rule. The modified prior public notice and comment interest on initial underpayments and § 24.36 text also includes a specific procedures on these regulations are relates to subsection (c) of section 505, reference to interest accrual in the case unnecessary and contrary to the public incorporates a number of illustrative of a claim for a refund filed under 19 interest. The regulatory changes correct examples and is further subdivided into U.S.C. 1520(d) and Subpart D of Part the Customs Regulations by conforming subparagraphs (A), (B) and (C) in order 181 of the Customs Regulations; this them to the terms of statutory to cover factual situations that arise change reflects the amendment to provisions, and to the principles under current Customs transaction section 505(c) effected by section 2(a) of reflected in judicial decisions, that are practices and that of necessity will the Miscellaneous Act as discussed currently in effect. In addition, in some result in variations in the interest above. Finally, the changes incorporate cases, the changes conform the computation period under the basic the 30-day interest period provisions for regulatory provisions to longstanding statutory rule: subparagraph (A) delinquent refunds as provided for in Customs administrative procedures and concerns pre-liquidation excessive section 505(d). refunds; subparagraph (B) describes practices that confer benefits on, or three scenarios involving pre- Section 159.6 otherwise militate in favor of, the liquidation additional deposits; and A reference to ‘‘interest’’ has been general public. For the same reasons, subparagraph (C) concerns cases in added in each place where reference is pursuant to the provisions of 5 U.S.C. which Customs receives a debit voucher made to duties, fees, and taxes assessed 553(d)(1) and (3), Customs finds that indicating that a payment to Customs or found due in a liquidation or there is good cause for dispensing with was not made because of a dishonored reliquidation context, to reflect the a delayed effective date. check or ACH transaction. Paragraph change to section 321(a) effected by Executive Order 12866 (b)(2)(ii) concerns interest on overdue section 3(a)(12) of the Miscellaneous bills and is based on subsection (d) of Act as discussed above. This document does not meet the section 505. criteria for a ‘‘significant regulatory Sections 174.11 and 174.12 action’’ as specified in E.O. 12866. Section 24.11 In § 174.11, a specific reference to the Regulatory Flexibility Act Section 24.11 has been modified by accrual of interest has been added in removing former paragraph (b) which paragraph (c) to reflect that interest is a Because no notice of proposed affected only internal Customs charge or exaction subject to protest rulemaking is required for interim procedures that are not appropriate for within 90 days of the decision regulations, the provisions of the regulatory treatment. In addition, the concerning such accrual. See New Regulatory Flexibility Act (5 U.S.C. 601 remaining text (former paragraph (a)) Zealand Lamb Co. Inc. v. United States, et seq.) do not apply. VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.064 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56437 List of Subjects Section 24.36 also issued under 26 date of issuance of the bill. Bills U.S.C. 6423. resulting from dishonored checks or 19 CFR Part 24 dishonored ACH transactions are due Accounting, Claims, Customs duties § 24.1 [Amended] within 15 days of the date of issuance and inspection, Interest, Taxes, User 3. In § 24.1: of the bill. fees, Wages. a. The section heading is amended by adding ‘‘fees, interest,’’ after ‘‘taxes,’’; 5. In § 24.3a: 19 CFR Part 159 b. The introductory text of paragraph a. The section heading is revised; Computer technology, Customs duties (a) is amended by adding ‘‘fees, b. Paragraph (a) is amended by and inspection, Entry, Imports, interest,’’ after ‘‘taxes,’’; removing the words ‘‘Supplemental Liquidation. c. The first sentence of paragraph duties (additional duties assessed upon (a)(3)(i) is amended by adding ‘‘fees, 19 CFR Part 174 liquidation or reliquidation),’’ and interest,’’ after ‘‘taxes,’’; adding, in their place, the words Administrative practice and d. The first sentence of paragraph ‘‘supplemental duties, taxes and fees procedure, Customs duties and (a)(7) is amended by adding ‘‘, fees,’’ inspection, Protests. (increased or additional duties, taxes after ‘‘taxes’’; and fees assessed upon liquidation or e. The first sentence of the Amendments to the Regulations reliquidation) together with interest introductory text of paragraph (b) is thereon,’’; and For the reasons stated in the amended by adding ‘‘fees, interest,’’ preamble, Parts 24, 159 and 174 of the after ‘‘taxes,’’; c. Paragraph (b)(2) is revised. Customs Regulations (19 CFR Parts 24, f. Paragraph (b)(3) is amended by The revisions read as follows: 159 and 174) are amended as set forth adding ‘‘fees,’’ after ‘‘taxes,’’; below. g. Paragraph (d) is amended by adding § 24.3a Customs bills; interest ‘‘fees, interest,’’ after ‘‘taxes,’’; and assessment; delinquency; notice to PART 24ÐCUSTOMS FINANCIAL AND h. In paragraph (e), the first sentence principal and surety. ACCOUNTING PROCEDURE is amended by adding ‘‘, interest,’’ after * * * * * 1–2. The general authority citation for ‘‘fees’’ and the second sentence is (b) * * * amended by adding ‘‘, fees, interest,’’ Part 24 is revised, and the specific (2) Interest on supplemental duties, after ‘‘taxes’’. authority citation for § 24.24 is removed, taxes, fees, and interest—(i) Initial 4. In § 24.3, the first sentence of and the specific authority citations for interest accrual. Except as otherwise paragraph (b) is amended by adding ‘‘, §§ 24.1, 24.11 and 24.36 continue to provided in paragraphs (b)(2)(i)(A) taxes, fees, and interest, if applicable,’’ read as follows: through (b)(2)(i)(C) of this section, after ‘‘duties’’ and paragraph (e) is Authority: 5 U.S.C. 301; 19 U.S.C. 58a-58c, interest assessed due to an revised to read as follows: 66, 1202 (General Note 20, Harmonized Tariff underpayment of duties, taxes, fees, or Schedule of the United States), 1505, 1624; § 24.3 Bills and accounts; receipts. interest shall accrue from the date the 26 U.S.C. 4461, 4462; 31 U.S.C. 9701. * * * * * importer of record is required to deposit Section 24.1 also issued under 19 (e) Except for bills resulting from estimated duties, taxes, fees, and U.S.C. 197, 198, 1648; dishonored checks or dishonored interest to the date of liquidation or * * * * * Automated Clearinghouse (ACH) reliquidation of the applicable entry or Section 24.11 also issued under 19 transactions, all other bills for duties, reconciliation. An example follows: U.S.C. 1485(d); taxes, fees, interest, or other charges are Example: Entry underpaid as determined * * * * * due and payable within 30 days of the upon liquidation Importer owes $500 plus interest as follows: (A) If a refund of duties, taxes, fees, excess amount refunded from the date The importer makes a $1,000 initial deposit or interest was made prior to liquidation of the refund to the date of liquidation on the required date (January 1) and the entry or reliquidation and is determined upon or reliquidation of the applicable entry liquidates for $1,500 (December 1). Upon liquidation, the importer will be billed for liquidation or reliquidation to be or reconciliation. An example follows: excessive, in addition to any other $500 plus interest. The interest will accrue Example: Pre-liquidation refund but entry interest accrued under this paragraph from the date payment was due (January 1) liquidates for an increase to date of liquidation (December 1). (b)(2)(i), interest also shall accrue on the VerDate 12-OCT-99 19:23 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00039 Fmt 4700 Sfmt 4725 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 56438 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Importer owes $800 plus interest as follows: refund ($300) from the date of the refund reconciliation to constitute the correct The importer makes a $1,000 initial deposit (May 1) to the date of liquidation (December remaining balance that was required to on the required date (January 1) and receives 1). be deposited on the date the deposit was a pre-liquidation refund of $300 (May 1) and (B) The following rules shall apply in due, interest shall accrue on the amount the entry liquidates for $1,500 (December 1). the case of an additional deposit of of the additional deposit only from the Upon liquidation, the importer will be billed date of the initial deposit until the date for $800 plus interest. The interest accrues in duties, taxes, fees, or interest made prior two segments: (1) On the original to liquidation or reliquidation: the additional deposit was made. An underpayment ($500) from the date of (1) If the additional deposit is example follows: deposit (January 1) to the date of liquidation determined upon liquidation or Example: Additional deposit made and (December 1); and (2) on the pre-liquidation reliquidation of the applicable entry or entry liquidates for total amount deposited Importer owes interest on $200 as follows: (2) If the additional deposit is accrue on the remaining unpaid balance The importer makes a $1,000 initial deposit determined upon liquidation or from the date deposit was initially on the required date (January 1) and an additional pre-liquidation deposit of $200 reliquidation of the applicable entry or required to the date of liquidation or (May 1) and the entry liquidates for $1,200 reconciliation to be less than the full reliquidation. An example follows: (December 1). Upon liquidation, the importer balance owed on the amount initially Example: Additional deposit made and will be billed for interest on the original $200 required to be deposited, in addition to entry underpaid as determined upon underpayment from the date of the initial any other interest accrued under this liquidation deposit (January 1) to the date of the paragraph (b)(2)(i), interest also shall additional deposit (May 1). Importer owes $300 plus interest as follows: of the additional deposit (May 1); and (2) on in each case shall be computed The importer makes a $1,000 initial the remaining underpayment ($300), from the separately and the resulting amounts deposit on the required date (January 1) and date deposit was required (January 1), to the an additional pre-liquidation deposit of $200 date of liquidation (December 1). shall be netted for purposes of determining the final amount of interest (May 1) and the entry liquidates for $1,500 (3) If an entry or reconciliation is (December 1). Upon liquidation, the importer to be reflected in the underpaid amount. will be billed for $300 plus interest. The determined upon liquidation or An example follows: interest accrues in two segments: (1) on the reliquidation to involve both an excess additional deposit ($200), from the date deposit and an excess refund made prior Example: Excess pre-liquidation deposit deposit was required (January 1) to the date to liquidation or reliquidation, interest and excess pre-liquidation refund Importer owes $200 plus or minus net the refund (May 1) to the date of liquidation (C) If a depository bank notifies interest as follows: (December 1). Customs by a debit voucher that a The importer makes a $1,000 initial Customs account is being debited due to deposit on the required date (January 1) and (4) If the additional deposit or any receives a pre-liquidation refund of $300 portion thereof is determined upon a dishonored check or dishonored (May 1) and the entry liquidates for $900 liquidation or reliquidation of the Automated Clearinghouse (ACH) (December 1). Upon liquidation, the importer transaction, interest shall accrue on the will be billed for $200 plus or minus net applicable entry or reconciliation to constitute a payment in excess of the debited amount from the date of the interest. The interest accrues in two debit voucher to either the date of segments: (1) Interest accrues in favor of the amount initially required to be importer on the initial overpayment ($100) deposited, the excess deposit shall be payment of the debt represented by the from the date of deposit (January 1) to the treated as a refundable amount on debit voucher or the date of issuance of date of the refund (May 1); and (2) interest which interest also may be payable (see a bill for payment, whichever date is accrues in favor of the Government on the earlier. refund overpayment ($200) from the date of § 24.36). VerDate 12-OCT-99 19:43 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm11 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56439 (ii) Interest on overdue bills. If duties, § 24.25 [Amended] or reconciliation that a refund of taxes, fees, and interest are not paid in 7. In § 24.25, the second sentence of excessive duties, taxes, fees or interest full within the applicable period paragraph (a) is amended by removing (at the rate determined in accordance specified in § 24.3(e), any unpaid the words ‘‘and fees’’ and adding, in with § 24.3a(c)(1)) is due, a refund shall balance shall be considered delinquent their place, the words ‘‘, fees, and be prepared in the name of the person and shall bear interest until the full interest’’. to whom the refund is due, as balance is paid. 8. In § 24.36: determined under paragraphs (b) and (c) a. Paragraph (a) is amended by 6. Section 24.11 is revised to read as of this section. * * * For purposes of revising the first sentence, adding a new follows: this section: sentence at the end and adding new § 24.11 Notice to importer or owner of paragraphs (a)(1) through (a)(3); (1) Except as otherwise provided in increased or additional duties, taxes, fees b. The first sentence of paragraph (b) paragraphs (a)(1)(i) through (a)(1)(iii) of and interest. is amended by removing the words this section, the refund shall include Any increased or additional duties, ‘‘duties or taxes’’ and adding, in their interest on the excess moneys deposited taxes, fees or interest found due upon place, the words ‘‘duties, taxes, fees or with Customs, and such interest shall liquidation or reliquidation shall be interest’’; and accrue from the date the duties, taxes, billed to the importer of record, or to the c. Paragraph (c) is amended by fees or interest were deposited or, in a actual owner if the following have been removing the words ‘‘duties or internal case in which a proper claim is filed filed with Customs: revenue taxes’’ and adding, in their under 19 U.S.C. 1520(d) and subpart D (a) A declaration of the actual owner place, the words ‘‘duties, taxes, fees or of Part 181 of this chapter, from the date interest’’. in accordance with section 485(d), Tariff such claim is filed, to the date of The revisions and additions read as Act of 1930, as amended (19 U.S.C. follows: liquidation or reliquidation of the 1485(d)), and § 141.20 of this chapter; applicable entry or reconciliation. An and § 24.36 Refunds of excessive duties, example follows: (b) A bond on Customs Form 301 in taxes, etc. Example: Entry liquidates for a refund accordance with § 141.20 of this (a) When it is found upon, or prior to, chapter. liquidation or reliquidation of an entry Importer is owed a refund of $600 plus (i) If an additional deposit of duties, interest accrued on the excess interest as follows: taxes, fees or interest was made prior to additional deposit from the date of the The importer makes a $1,000 initial deposit liquidation or reliquidation and if any additional deposit to the date of (January 1) and the entry liquidates for $400 portion of that additional deposit was in liquidation or reliquidation of the (December 1). Upon liquidation, the importer applicable entry or reconciliation. An will be owed a refund of $600 plus interest. excess of the amount required to be The interest will accrue from the date of deposited, in addition to any other example follows: deposit (January 1) to the date of liquidation interest accrued under this paragraph Example: Additional deposit made and (December 1). (a)(1), the refund also shall include entry liquidates for a refund Importer is owed a refund of $900 plus date of deposit (January 1) to the date of duties, taxes, fees or interest were interest as follows: liquidation (December 1). deposited to the date of the refund if the The importer makes a $1,000 initial deposit (ii) In the case of a refund of duties, amount refunded is determined upon (January 1) and an additional pre-liquidation taxes, fees or interest made prior to liquidation or reliquidation of the deposit of $200 (May 1) and the entry liquidation, such a refund will include liquidates for $300 (December 1). Upon applicable entry or reconciliation to liquidation, the importer will be refunded only principal amounts and not any constitute the true excess amount $900 plus interest. The interest accrues in interest thereon. Interest on such deposited with Customs. An example two segments: (1) On the additional deposit principal amounts will be computed at follows: the time of liquidation or reliquidation overpayment ($200), from the date of the Example: Pre-liquidation refund and entry additional deposit (May 1) to the date of and shall accrue as follows: liquidates for net amount collected liquidation (December 1); and (2) on the (A) Interest shall only accrue on the initial deposit overpayment ($700), from the amount refunded from the date the VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.068 pfrm03 PsN: 20OCR1 56440 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Importer is owed a refund of interest on $200 date of the initial deposit (January 1) to the interest accrued under this paragraph as follows: date of the pre-liquidation refund (May 1). (a)(1), interest also shall accrue on the The importer makes a $1,000 initial deposit (B) If the amount refunded is remaining excess deposit from the date (January 1) and receives a pre-liquidation determined upon liquidation or the duties, taxes, fees or interest were refund of $200 (May 1) and the entry reliquidation of the applicable entry or deposited to the date of liquidation or liquidates for $800 (December 1). Upon reconciliation to constitute less than the reliquidation. An example follows: liquidation, the importer will be refunded true excess amount deposited with Example: Pre-liquidation refund and entry interest on the $200 overpayment from the Customs, in addition to any other liquidates for an additional refund Importer is owed a refund of $700 plus (January 1) to the date of the pre-liquidation deposit, interest in each case shall be interest as follows: refund (May 1); and (2) on the remaining computed separately and the resulting The importer makes a $1,000 initial deposit overpayment ($700), from the date of deposit amounts shall be netted for purposes of (January 1) and receives a pre-liquidation (January 1) to the date of liquidation refund of $200 (May 1) and the entry (December 1). determining the final amount of interest liquidates for $100 (December 1). Upon to be reflected in the refund. An liquidation, the importer will be refunded (C) If an entry or reconciliation is example follows: $700 plus interest. The interest accrues in determined upon liquidation or two segments: (1) On the pre-liquidation reliquidation to involve both an initial Example: Additional deposit made and refund ($200), from the date of deposit underpayment and an additional excess entry liquidates for a refund Importer is owed a refund of $200 plus or (2) A refund determined to be due Sections 159.4, 159.5, and 159.21 also minus net interest as follows: upon liquidation or reliquidation, issued under 19 U.S.C. 1315; The importer makes a $1,000 initial deposit including a refund consisting only of Section 159.6 also issued under 19 on the required date (January 1) and an interest that has accrued in accordance U.S.C. 1321, 1505; additional pre-liquidation deposit of $300 with paragraph (a)(1)(ii) of this section, Section 159.7 also issued under 19 (May 1) and the entry liquidates for $1,100 shall be paid within 30 days of the date U.S.C. 1557; (December 1). Upon liquidation, the importer of liquidation or reliquidation of the Section 159.22 also issued under 19 will be refunded $200 plus or minus net U.S.C. 1507; interest. The interest accrues in two applicable entry or reconciliation. Section 159.44 also issued under 15 segments: (1) Interest accrues in favor of the (3) If a refund, including any interest U.S.C. 73, 74; Government on the initial underpayment thereon, is not paid in full within the Section 159.46 also issued under 19 ($100) from the date deposit was required applicable 30-day period specified in U.S.C. 1304; (January 1) to the date of the additional paragraph (a)(2) of this section, the deposit (May 1); and (2) interest accrues in Section 159.55 also issued under 19 refund shall be considered delinquent U.S.C. 1558; favor of the importer on the overpayment thereafter and interest shall accrue on ($200) from the date of the additional deposit Section 159.57 also issued under 19 (May 1) to the date of liquidation (December the unpaid balance by 30-day periods U.S.C. 1516; 1). until the full balance is paid. However, no interest will accrue during the 30- §§ 159.4, 159.6, 159.7, 159.21, 159.22, 159.44, (D) If the amount refunded or any day period in which the refund is paid. 159.46, 159.55, 159.57 [Amended] portion thereof exceeds the amount * * * * * 2. The parenthetical authority properly refundable as determined upon citations at the end of §§ 159.4, 159.5, liquidation or reliquidation of the PART 159ÐLIQUIDATION OF DUTIES 159.6, 159.7, 159.21, 159.22, 159.44, applicable entry or reliquidation, the 159.46, 159.55, and 159.57 are removed. excess amount refunded shall be treated 1. The authority citation for Part 159 3. In § 159.6: as an underpayment of duties, taxes, is revised to read as follows: a. The first sentence of paragraph (a) fees or interest on which interest shall Authority: 19 U.S.C. 66, 1500, 1504, 1624. is amended by removing the words ‘‘and accrue as provided in § 24.3a. Subpart C also issued under 31 U.S.C. 5151. taxes’’ the first time they appear and VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.069 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56441 adding, in their place, the words ‘‘taxes, SUMMARY: The Food and Drug by the licensing process and to make the and interest’’; Administration (FDA) is amending the licensing process more consistent with b. The introductory text of paragraph biologics regulations to eliminate the process for the approval of new (b) is amended by removing the words references to establishment licenses and drugs. In the Federal Register of May ‘‘and taxes’’ wherever they appear and product licenses for all products 14, 1996 (61 FR 24227), FDA issued a adding, in their place, the words ‘‘taxes, regulated under the Public Health final rule to amend the biologics and interest’’; Service Act (the PHS Act). In lieu of regulations by eliminating the ELA c. Paragraph (c) is amended by filing an establishment license requirement for the following specified removing the words ‘‘and taxes assessed application (ELA) and product license biotechnology and synthetic biological in the liquidation’’ and adding, in their application (PLA) in order to market a products licensed under section 351 of place, the words ‘‘taxes, and interest biological product in interstate the PHS Act (42 U.S.C. 262 et seq.): (1) assessed in the liquidation’’ and by commerce, a manufacturer will file a Therapeutic deoxyribonucleic acid removing the words ‘‘and taxes assessed single biologics license application (DNA) plasmid products; (2) therapeutic in the reliquidation’’ and adding, in (BLA) with the agency. Upon approval synthetic peptide products of 40 or their place, the words ‘‘taxes, and of the BLA, a manufacturer will receive fewer amino acids; (3) monoclonal interest assessed in the reliquidation’’; a biologics license to market the product antibody products for in vivo use; and and in interstate commerce. This action is (4) therapeutic recombinant DNA- d. In paragraph (d), the paragraph part of FDA’s continuing effort to derived products. That provision heading and the paragraph text are achieve the objectives of the President’s applied only to those products that FDA amended by adding ‘‘and interest’’ after ‘‘Reinventing Government’’ initiatives determined under principles articulated ‘‘taxes’’. and is intended to reduce unnecessary in the ‘‘Intercenter Agreement Between burdens for industry without the Center for Drug Evaluation and PART 174ÐPROTESTS diminishing public health protection. Research and the Center for Biologics 1. The authority citation for Part 174 This action implements certain sections Evaluation and Research’’ (effective on continues to read as follows: of the FDA Modernization Act of 1997 October 31, 1991) to be subject to Authority: 19 U.S.C. 66, 1514, 1515, 1624. (FDAMA). licensure under section 351 of the PHS DATES: Effective date: The regulation is Act. Thus, upon approval, § 174.11 [Amended] effective December 20, 1999. manufacturers of the specified 2. In § 174.11, paragraph (c) is Compliance Date: Submit all biotechnology and synthetic biological amended by adding ‘‘, including the applications with the Form FDA 356h products received a single biologics accrual of interest,’’ after ‘‘character’’. by December 20, 1999, and submit any license instead of a product license and an establishment license (see § 601.2(c) § 174.12 [Amended] application for licensure as a BLA by October 20, 2000. (21 CFR 601.2(c))). 3. In § 174.12, paragraph (a)(2) is FOR FURTHER INFORMATION CONTACT: In the Federal Register of July 8, 1997 amended by adding ’’, or receiving a Robert A. Yetter, Center for Biologics (62 FR 36558), FDA announced the refund of,’’ after ‘‘paying’. Evaluation and Research (CBER) (HFM– availability of a revised Form FDA 356h Approved: July 28, 1999. 10), Food and Drug Administration, entitled ‘‘Application to Market a New Raymond W. Kelly, 1401 Rockville Pike, suite 200N, Drug, Biologic, or an Antibiotic Drug for Commissioner of Customs. Rockville, MD 20852–1448, 301–827– Human Use.’’ Form FDA 356h was Dennis M. O’Connell, 0373. revised as a ‘‘Reinventing Government’’ Acting Deputy Assistant Secretary of the SUPPLEMENTARY INFORMATION: initiative to harmonize application procedures between CBER and the Treasury. I. Background [FR Doc. 99–26882 Filed 10–19–99; 8:45 am] Center for Drug Evaluation and Research (CDER) as outlined in the President’s BILLING CODE 4820±02±P In the Federal Register of July 31, 1998 (63 FR 40858), FDA proposed to November 1995 National Performance amend the biologics and other drug Review Report entitled ‘‘Reinventing the Regulation of Drugs Made From DEPARTMENT OF HEALTH AND regulations to eliminate references to Biotechnology.’’ In the notice, FDA HUMAN SERVICES the PLA and ELA and to replace such references with the BLA. FDA provided advised that applicants for biologics Food and Drug Administration 75 days for comments on the proposed licenses for products specified in rule. FDA held a public meeting, § 601.2(c) as well as autologous somatic 21 CFR Parts 3, 5, 10, 20, 50, 56, 58, announced in the Federal Register of cell therapy products could begin to use 207, 310, 312, 316, 600, 601, 607, 610, August 11, 1998 (63 FR 42773), on Form FDA 356h immediately and were 640, and 660 September 2, 1998, to discuss the BLA/ required to do so beginning January 8, biologics license scheme. FDA also 1998. FDA advised applicants for [Docket No. 98N±0144] invited the submission of written licenses for other biological products RIN 0910±AB29 comments to the docket at the public that the agency would announce in the meeting. The transcript of the public future when they can voluntarily begin Biological Products Regulated Under meeting and written comments to the to use and will be required to use Form Section 351 of the Public Health proposed rule are on file in the Dockets FDA 356h. Upon approval of a BLA Service Act; Implementation of Management Branch (HFA–305), 5630 submitted on Form FDA 356h, FDA will Biologics License; Elimination of Fishers Lane, rm. 1061, Rockville, MD issue a single biologics license. FDA Establishment License and Product 20852. believes that this licensing procedure License Prior to the issuance of the proposed will greatly simplify the application AGENCY: Food and Drug Administration, rule, FDA had already reviewed its process, harmonize application HHS. process of licensing biological products procedures with those of CDER, and and had taken a number of actions to reduce industry and agency paperwork ACTION: Final rule. reduce the regulatory burdens imposed burdens. As a consequence of this final VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.070 pfrm03 PsN: 20OCR1 56442 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations rule, all manufacturers requesting 10, 1997); (3) ‘‘Guidance for Industry for safe, pure, potent, and manufactured in approval to introduce, or deliver for the Submission of Chemistry, facilities designed to ensure that the introduction, a biological product into Manufacturing and Controls Information product continues to be safe, pure, and interstate commerce must use Form for Synthetic Peptide Substances’’ potent. The PHS Act does not specify FDA 356h to submit a BLA in lieu of (issued on the internet, November the license application forms that separate establishment and product 1994); (4) ‘‘Guidance for Industry: manufacturers must submit to FDA. applications. Content and Format of Chemistry, Except for the biological products listed On November 21, 1997, the President Manufacturing and Controls and under § 601.2(c), FDA, in the past, has signed into law FDAMA (Pub. L. 105– Establishment Description Information required manufacturers to submit a PLA 115). Section 123 of FDAMA, in for a Vaccine or Related Product’’ (64 FR and an ELA (or a PLA and a supplement pertinent part, amended section 351 of 518, January 5, 1999); (5) ‘‘Guidance for to an existing ELA) for each biological the PHS Act to specify that a biologics Industry for the Submission of product. Accordingly, upon approval, license shall be in effect for a biological Chemistry, Manufacturing and Controls product prior to such product’s and Establishment Description FDA issued two licenses for each introduction into interstate commerce. Information for Human Plasma-Derived product. FDAMA thereby statutorily codified Biological Products, Animal Plasma, or In the proposed rule of July 31, 1998, FDA’s administrative BLA/biologics Serum-Derived Products’’ (64 FR 7896, FDA proposed changes to the license ‘‘Reinventing Government’’ February 17, 1999); (6) ‘‘Guidance for regulations intended to implement use initiative. Section 123(a)(1) of FDAMA Industry: Content and Format of of the BLA and to implement FDAMA. further states that the Secretary of Chemistry, Manufacturing and Controls, The proposed rule would also change Health and Human Services (the and Establishment Description certain definitions to be more consistent Secretary) (delegated to the Information for a Biological In Vitro with FDAMA and eliminate references Commissioner of Food and Drugs at 21 Diagnostic Product’’ (64 FR 11023, to the PLA and ELA. In the following CFR 5.10(a)(5)) shall approve a March 8, 1999); (7) ‘‘Guidance for sections of this document, FDA outlines ‘‘biologics license application’’ on the Industry: On the Content and Format of in greater detail the provisions of the basis of a demonstration that the Chemistry, Manufacturing and Controls, proposed rule. biological product that is the subject of and Establishment Description the application is safe, pure, and potent; Information for an Allergenic Extract or B. Definitions and Deletion of Terms and the facility in which the biological Allergen Patch Test’’ (64 FR 20006, product is manufactured, processed, April 23, 1999); and (8) ‘‘Guidance for In order to reduce any confusion that packed, or held meets standards Industry: For the Submission of may result from use of the term designed to ensure that the biological Chemistry, Manufacturing and Controls, ‘‘facility’’ in section 351 of the PHS Act product continues to be safe, pure, and and Establishment Description as amended by FDAMA, FDA proposed potent. Information for Human Blood and Blood to amend the definition of With the consolidation of the ELA’s Components Intended for Transfusion ‘‘establishment’’ in § 600.3(w) (21 CFR and PLA’s into a single BLA, the or for Further Manufacture and for the 600.3(w)) to clarify that the term has the amount of information formerly Completion of the Form FDA 356h same meaning as ‘‘facility’’ in section included in the ELA will be reduced, Application to Market a New Drug, 351 of the PHS Act. FDA also proposed but not eliminated. Much of the Biologic or an Antibiotic Drug for to amend the definition of ‘‘standards’’ information previously reviewed in an Human Use’’ (64 FR 25049, May 10, in § 600.3(n) to indicate that the term ELA at FDA will be reviewed by FDA 1999). All of these guidance documents refers to specifications and procedures investigators at the manufacturing site can be downloaded from the CBER during a preapproval inspection. Some established in BLA’s designed to ensure Guidelines/Guidance document World information formerly included in the the continued safety, purity, and Wide Web page at ‘‘http://www.fda.gov/ ELA will now be submitted as potency of biological products as well as cber/guidelines.htm’’. These guidance ‘‘chemistry, manufacturing, and adherence to specifications and documents can also be obtained by controls’’ (CMC) information or under procedures in applicable regulations. written request to the Office of the ‘‘establishment description’’ section Establishing standards in the BLA is Communication, Training, and of Form FDA 356h. The type and consistent with FDA’s previous effort to Manufacturers Assistance (HFM–40), amount of information related to the streamline the license review process by establishment will vary according to the Center for Biologics Evaluation and deleting certain additional standards in Research, Food and Drug specific biological product for which the biologics regulations (see 61 FR Administration, 1401 Rockville Pike, licensure is being requested. To describe 40153, August 1, 1996). This proposed Rockville, MD 20852–1448. Send one what information should be included change to § 600.3(n) also would reduce for each type of biological product, self-addressed adhesive label to assist the office in processing your requests. confusion in the biologics regulations by CBER has prepared a series of guidance establishing consistency with FDA’s documents. The following guidance These documents may also be obtained by mail by calling the CBER Voice current regulation at 21 CFR 601.5(b)(4) documents are available: (1) ‘‘Guidance regarding the revocation of licenses. for Industry for the Submission of Information System at 1–800–835–4709 or 301–827–1800, or by fax by calling FDA proposed to delete the term Chemistry, Manufacturing, and Controls ‘‘licensee’’ as used in the biologics Information for a Therapeutic the FAX Information System at 1–888– regulations in order to reduce confusion Recombinant DNA–Derived Product or a CBER–FAX or 301–827–3844. and to make clear that it is the licensed Monoclonal Antibody Product for In II. Highlights of Proposed Rule Vivo Use’’ (61 FR 56243, October 31, manufacturer who is responsible for 1996); (2) ‘‘Guidance for the Submission A. Introduction compliance with product and of Chemistry, Manufacturing, and FDA licenses biological products establishment requirements. The term Controls Information and Establishment under the authority of section 351(a) of ‘‘licensed manufacturer’’ would be Description for Autologous Somatic Cell the PHS Act. The PHS Act requires that inserted in all instances that currently Therapy Products’’ (62 FR 1460, January biological products be licensed and be read ‘‘licensee.’’ VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56443 C. Elimination of PLA/ELA and CBER and CDER policies and III. Comments on the Proposed Rule Implementation of BLA procedures. The regulation would and FDA Responses FDA proposed that the terms clarify when a manufacturer of a FDA received two letters of comment ‘‘biologics license’’ or ‘‘biologics license radioactive biological product should in response to the proposed rule; one application’’ be substituted in lieu of submit a new drug application (NDA) to letter from an organization representing references to PLA’s and ELA’s and CDER or a BLA to CBER. The regulation the blood and blood component product and establishment licenses in provides that when the biological industry and another from a all regulations in 21 CFR chapter I. In component of a radioactive coupled manufacturer of biological products. a few instances, references to product antibody determines the site of action, Comments received and FDA’s and establishment licenses would be normally a BLA would be submitted. responses to the comments are retained for historical accuracy, e.g., The regulation will provide sufficient discussed below. There were also a few § 601.25 (21 CFR 601.25) and 21 CFR flexibility to take into account situations technical changes, to be consistent with 601.26. that may arise in the future where the other changes in this rulemaking or to Under the proposed rule, a scientific issues associated with a be consistent with statutory language in manufacturer applying for approval to radionuclide or other chemically FDAMA, made to the following market a biological product under synthesized component are more regulations: 21 CFR 50.3(b)(12), section 351 of the PHS Act would significant than the scientific issues 56.102(b)(11), 58.3(e)(13); §§ 600.81, submit to FDA the appropriate associated with the biological 601.2, and 601.21 (21 CFR 601.21). FDA establishment and product information component. In such cases, jurisdiction is also revising 21 CFR 601.22 to remove on the recently approved Form FDA will be determined in accordance with wording that was inadvertently added to 356h. Manufacturers would no longer be principles articulated in the ‘‘Intercenter the regulation in the proposed rule that required to submit product or Agreement Between the Center for Drug implied that either of two requirements establishment information on one of the Evaluation and Research and the Center must be met. The change eliminates this many different PLA and ELA forms for Biologics Evaluation and Research’’ ambiguity and reinstates the original formerly in use. Upon approval of the of October 31, 1991. The proposed intent that both requirements must be BLA, FDA would issue an approval changes should not be construed as an met. letter that in general terms states that attempt to address or implement the 1. A comment was supportive of the FDA grants the licensed manufacturer a requirements of section 122 of FDAMA, concept of a BLA and use of the Form biologics license to manufacture the ‘‘Requirements for FDA 356h but strongly urged FDA to particular biological product. FDA Radiopharmaceuticals.’’ ensure that the intended paperwork would not issue license certificates FDA is also amending § 310.4 (21 CFR reduction and efficiency goals are separate from the approval letter as is 310.4) to make it consistent with achieved. The comment stated that the current agency practice. The approval § 601.2(b). Revisions to the proposed simplification of the BLA will be letter would serve as the functional changes to § 310.4 have been made for affected by how supplemental equivalent of a biologics license within clarity. Certain changes to both applications are handled and expressed the meaning of section 351 of the PHS § 310.4(a) and (b) are necessary in order concern that this be adequately Act. to make congruous the regulations that addressed. The comment specifically Under proposed § 601.2(a), describe whether CBER or CDER will requested that in implementing the BLA manufacturers would list in the BLA the have primary jurisdiction over a for blood and blood components that addresses of all locations of radioactive biological product. The one supplement to the BLA be manufacture of a biological product. amendment to § 310.4(b) is prospective acceptable to report a change in the FDA believes this will simplify and and does not alter the approval manufacturing of Platelets, Pheresis for clarify the licensing processes by having mechanism of any currently approved all manufacturing locations. necessary establishment information in radioactive biological products that FDA agrees that it is important to the BLA and also by allowing FDA to have approved NDA’s or approved implement the rule in a manner that approve all locations involved in the establishment and product licenses. will reduce unnecessary burdens; manufacture of the product without Section 310.4(a) is amended to make it accordingly the agency is implementing having to issue an establishment license consistent with § 601.2(b) and to clarify several mechanisms for ensuring that for each location. that if any biological product has an this is the case. Manufacturers of some Under proposed § 601.9(c), for approved license under section 351 of biological products will be able to list manufacturers of some biological the PHS Act, it is not required to have multiple products in a BLA and FDA products that would be able to list an approved application under section will issue a single biologics license to multiple products in a single BLA, (such 505 of the Federal Food, Drug, and the manufacturer for more than one as blood and blood components and Cosmetic Act (the act) (21 U.S.C. 355). product. FDA intends to use this approach generally with products that nonstandardized allergenic products) E. Current Good Manufacturing Practice both have been on the market for a long and for which FDA will issue a single Requirements biologics license to the manufacturer for period of time and that FDA has more than one product, FDA would be FDA discussed in the preamble to the considerable knowledge and expertise able to license compliant locations and proposed rule the applicability of regulating. Currently, only products products and exclude noncompliant current good manufacturing practices such as blood and blood components locations. (CGMP) requirements for biological and nonstandardized allergenic products. For clarity FDA proposed in products will be handled in a single D. Radioactive Biological Products § 601.2(d) that the CGMP requirements BLA. Therefore, a manufacturer of blood FDA proposed to amend § 601.2(b) to in parts 210, 211, 600, 606, and 820 (21 and blood components will only need to clarify procedures for submitting an CFR parts 210, 211, 600, 606, and 820) submit one BLA to request approval to application for marketing approval for a are included, as applicable, as part of market one or more blood or blood radioactive biological product in order the establishment requirements for the components, (e.g., Whole Blood, to help ensure consistency with current production of a biological product. Platelets, Plasma, Red Blood Cells, and VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 56444 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Cryoprecipitated AHF). FDA believes the adequate tracking of labeling submission of descriptions of such this consolidation of forms and submissions to FDA. It provides specific organizations should require minimal submissions will result in a reduced identification of the labeling changes, time for gathering and preparing the regulatory burden for the blood industry including revision number and the type information. In addition, since other because information previously of labeling and provides a check list for information previously reviewed as part duplicated in the many blood and blood the type of changes that have been made of the PLA and ELA will not be required component product and establishment to the labeling. The form provides a to be included in a BLA, FDA estimates applications would be submitted only clear, simple method for transmitting that the net effect is no increase in once in the BLA. comments on the labeling to and from burden or a slightly lower burden. For With regard to manufacturing the manufacturers allowing for quick example, information that will no longer changes, the BLA system will simplify return of comments and easy be submitted in a BLA but should, as submission of supplements to blood and identification of sequential revisions. appropriate, be available for an blood component applications. 3. One comment stated that the ‘‘Draft establishment inspection includes, but Currently, manufacturers desiring to Guidance for Industry: For the is not limited, to such information as: make a single manufacturing change Submission of Chemistry, (1) Floor plans of facilities, auxiliary that would affect multiple products are Manufacturing and Controls and facilities and self-contained mobile required to submit a supplement to each Establishment Description Information units to show locations of major individual product and establishment for Human Blood and Blood equipment, hand washing facilities and application. Under the final rule, a Components Intended for Transfusion restrooms; (2) Heating, ventilation, and manufacturer would only need to or for Further Manufacture and For the air conditioning information; (3) submit one supplement to the BLA. For Completion of the Form FDA 356h, curriculum vitae for physicians, example, under the current PLA/ELA ‘Application to Market a New Drug, physician substitutes, authorized system if a manufacturer desired to Biologic or an Antibiotic Drug for officials and their alternates, and make a single change to the irradiation Human Use’’’ (63 FR 37401, July 10, managers; (4) ‘‘statement of procedure for its Whole Blood, Red 1998) requires, for the first time, understanding’’ from physicians and Blood Cells, Platelets, and Plasma submission of information regarding authorized officials; (5) proof of state products manufactured at 3 locations, certain manufacturing standard licensure of physicians; (6) physician the manufacturer would be required to operating procedures (SOP’s), contracts, substitute certification of training and submit 12 supplements to 4 PLA’s, i.e., organizational characteristics, cardiopulmonary resuscitation; (7) a separate supplement for each blood organization diagrams, physical plant, supervisor qualifications and number of component manufactured at each major equipment, and quality assurance. people supervised in the areas of donor location. Under the final rule, the FDA disagrees in part with this suitability, blood collection, laboratory manufacturer would only be required to comment. Guidance documents do not processing, and testing; (8) description submit one supplement to the BLA set forth requirements; they provide the of any other uses for the area where describing the change for all of the agency’s current thinking on a topic and blood collection or processing occurs; products and locations involved. Of are nonbinding. A review of SOP’s, (9) description of provisions for course, all data (including applicable physical plant information, and housekeeping, pest control, and validation and quality control testing) information on contracts have always lighting; (10) description of records and information related to all the been part of an assessment of a maintenance method, including when affected products and locations would product’s safety, purity, and potency. they are made, how long they are stored, be expected to be present in the FDA has the authority to require and how they are maintained to permit supplement. Section 123 of FDAMA sponsors to submit such information in effective recall; and (11) copy of the states, in part, that the Secretary shall license applications under section 351 certificate of incorporation. FDA is approve a BLA on the basis of a of the PHS Act and 21 CFR part 601. In currently reviewing comments on the demonstration that the biological the more recent past, FDA has found draft CMC guidance and will consider product that is the subject of the that inadequate organizational/ the comments in any revision made to application is safe, pure, and potent; managerial oversight and quality the ‘‘Draft Guidance for Industry: For and the facility in which the biological assurance problems at firms have the Submission of Chemistry, product is manufactured, processed, resulted in firms being out of Manufacturing and Controls and packed, or held meets standards compliance with the regulations Establishment Description Information designed to ensure that the biological applicable to blood and blood for Human Blood and Blood product continues to be safe, pure, and components and have been the cause of Components Intended for Transfusion potent. FDA intends to ensure that the problems leading to significant or for Further Manufacture and for the final rule will be properly implemented enforcement action by the agency. FDA Completion of the Form FDA 356h, and is providing adequate training and believes it is important to review ‘Application to Market a New Drug, management oversight to ensure that information related to the managerial/ Biologic or an Antibiotic Drug for this happens. organizational oversight and quality Human Use.’’’ 2. One comment requested the assurance in order to ensure that a firm 4. One comment supported the elimination of the use of the Form FDA can manufacture products that meet the proposed revision to § 601.21 but 2567, Transmittal of Labels and applicable regulatory and statutory recommended that the regulation Circulars, as being duplicative of Form requirements. Therefore, FDA will reference the appropriate section of the FDA 356h. review such information as part of the act applicable to investigational device FDA disagrees that the form is BLA. FDA believes that the burden exemptions. duplicative. FDA Form 2567 is used for associated with the submission of such FDA agrees with the comment and is any submission of labeling, including information will be minimal. Describing amending § 601.21 in the final rule to promotional labeling. This form (OMB organizational aspects can be done reference section 520(g) of the act (21 Control No. 0910–0039) contains through the use of organizational charts, U.S.C. 360j(g)) that provides for information that is not requested in the and under CGMP regulations, quality exemption of devices for investigational Form FDA 356h, which is necessary for assurance is already a requirement. The use. VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56445 FDA has considered all comments the agency for approval. The amount of substantial reduction in reporting received in response to the proposed information that manufacturers will burdens, the agency certifies that the rule and has determined that the need to provide in a BLA will be less rule would not have a significant proposed rule should be issued as a than that previously required in a PLA negative economic impact on a final rule. Accordingly, FDA is issuing and ELA. These changes will enable substantial number of small entities. as a final rule changes to the biologics manufacturers to devote fewer resources Therefore, under the Regulatory regulations that provide for the use of a to submitting documentation to the Flexibility Act, no further analysis is ‘‘biologics license application’’ and agency. Much of the information required. previously reviewed in an ELA at FDA ‘‘biologics license’’ for the licensure of C. The Paperwork Reduction Act of will be reviewed by FDA investigators at all products under section 351 of the 1995 PHS Act. the manufacturing site during a preapproval inspection. According to This final rule contains information IV. Effective Dates and Other many biological product manufacturers, collection provisions that are subject to Implementation Issues preparation, submission, and approval review by the Office of Management and FDA is providing a 10-month of a separate PLA and ELA for each Budget (OMB) under the Paperwork transition period for implementation of biological product added substantially Reduction Act of 1995 (the PRA) (44 the BLA. FDA recognizes that it may to the cost of licensing the product. U.S.C. 3501–3520). The title, take applicants time to switch format The inclusion of reference to parts description, and the respondent from PLA’s and ELA’s to BLA’s. Any 210, 211, 600, 606, and 820 in the final description of the information collection PLA and ELA for a biological product rule as establishment requirements only provisions are shown below with an pending on the effective date of these serve to clarify existing requirements estimate of the annual reporting burden. regulations will be reviewed as and will not impose any additional Included in the estimate is the time for submitted. Notwithstanding the new burden on industry. Biological products reviewing the instructions, searching regulations, new submissions by the regulated under section 351 of the PHS existing data sources, gathering and manufacturer will not be necessary for Act, are already subject to the CGMP’s maintaining the data needed, and these products. FDA will continue to in parts 600, 606 and, as applicable, completing and reviewing each accept PLA’s and ELA’s in lieu of a BLA parts 210 and 211, or 820. collection of information. until October 20, 2000, of this final rule. Title: Biological Products Regulated B. Review Under Executive Order 12866 Under Section 351 of the Public Health However, all applications submitted to and the Regulatory Flexibility Act the agency after the effective date of the Service Act; Implementation of final rule will be required to include all FDA has examined the impact of the Biologics License; Elimination of information indicated in Form FDA final rule under Executive Order 12866 Establishment License and Product 356h in order for the application to be and the Regulatory Flexibility Act (5 License. Description: This final rule revises the considered as complete. PLA’s and U.S.C. 601–612). Executive Order 12866 directs agencies to assess all costs and regulations regarding the procedures for ELA’s received after the effective date of benefits of available regulatory application for approval to market a the final rule will be administratively alternatives and, when regulation is biological product regulated under handled by FDA as a BLA. If the PLA necessary, to select regulatory section 351 of the PHS Act. Under the and ELA are sufficient for licensure, approaches that maximize net benefits regulations, a manufacturer will submit FDA will issue a biologics license. Any (including potential economic, to FDA the appropriate establishment manufacturer planning to file a PLA and environmental, public health and safety, and product information in a single BLA an ELA during the 10-month time and other advantages; distributive in lieu of filing a separate ELA and PLA. period after the effective date of these impact; and equity). The agency Upon approval of the BLA, a regulations should contact FDA for believes that this rule is consistent with manufacturer would receive a single further guidance. the regulatory philosophy and biologics license to market the product Under new § 601.2(e), a manufacturer principles identified in Executive Order in interstate commerce. already holding an approved ELA and 12866. In addition, the rule is a Description of Respondents: PLA for a biological product will not be significant regulatory action as defined Manufacturers of biological products. required to file supplements to comply in Executive Order 12866 and is subject The final rule amends the regulations with the amended regulations. The to review because it deals with a novel for filing an application to market a approved PLA together with portions of policy issue. biological product under § 601.2 to the approved ELA relevant to the new In accordance with the principles of eliminate references to establishment requirements for the BLA, will be Executive Order 12866, the overall licenses and product licenses for all deemed to constitute a BLA under result of the rule will be a substantial products regulated under the PHS Act. section 351 of the PHS Act . reduction in burdens on a manufacturer The final rule will require biologics V. Analysis of Impacts filing an application to market a manufacturers to file a single BLA, biological product. In addition, FDA rather than either an ELA or PLA, to A. Reduction in Burden anticipates that the rule will facilitate a market a biological product. The agency The use of the harmonized Form FDA manufacturer’s ability to improve its estimates that the total average 356h for all biological products and licensed products and methods of paperwork burden for manufacturers drugs regulated by CBER and CDER will manufacture by decreasing the burden filing one application that consolidates reduce burden on industry by enabling and cost associated with filing the information currently required manufacturers to submit applications applications and supplements. under both the PLA and ELA will for biological products and drugs in a The Regulatory Flexibility Act decrease approximately 10 percent. The consistent format. requires agencies to analyze regulatory estimate reduces the number of annual Manufacturers intending to introduce options that would minimize any responses from a combined PLA/BLA/ biological products into interstate significant impact of a rule on small ELA total of 76 to a BLA total of 60. This commerce will no longer have to entities. Because, as stated previously, estimate is derived from the total prepare a PLA and an ELA to submit to the overall result of the rule will be a number of license applications received VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 56446 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations by FDA in fiscal year (FY) 1997 (76) related to Whole Blood, regardless of the manufacturer would only be minus the total number of ELA’s filed in whether the supplement was filed required to submit one supplement to the same period (17). Based on specific to § 640.6. the BLA describing the change for all of information provided by industry, the The remaining regulations, the products and locations involved. time estimated to prepare an application §§ 640.21(c), 640.22(c), 21 CFR Therefore, fewer supplements should be for FDA approval to market a product is 640.64(c), and 640.74(a) and (b)(2), refer submitted by applicants. The size of the approximately 1,600 hours. In addition to information that is collected under decrease in supplements will depend on to § 601.2, there are other regulations in § 601.12, (OMB Control No. 0910–0315) how the applicant bundles the the final rule that relate to certain under which the collection of submissions. At the time of submission information to be included in a license information burden is calculated. of a supplement, FDA expects that all application including § 640.21(c) (21 Moreover, the final rule makes only data and information pertinent to the CFR 640.21(c)), § 640.22(c) (21 CFR technical changes to these regulations. supplement be present or the FDA may 640.22(c)), 21 CFR 640.65(a), and For example, the term ‘‘product license’’ refuse to file the application (see the 660.21(a)(3) and (d). The burden is changed to ‘‘biologics license,’’ and guidance entitled ‘‘Center for Biologics associated with the information the term ‘‘product licensee’’ is changed Evaluation and Research (CBER): collection requirements in these to ‘‘licensed manufacturer.’’ Refusal to File (RTF) Guidance for regulations is included in the following As required by section 3506(c)(2)(B) Product License Applications (PLA’s) reporting burden estimate for § 601.2. of the PRA, FDA provided an and Establishment License Applications The regulation also makes several opportunity for public comment on the (ELA’s)’’ (58 FR 38770, July 20, 1993)). technical amendments to conform the information collection provisions of the Therefore, if an applicant wishes to language throughout the biological proposed rule (63 FR 40858). One letter submit a change affecting multiple product regulations to the changes made of comment on the information locations in one supplement, and all final here for § 601.2. Specifically, the collection provisions was submitted to data and information supporting the final rule makes the following technical OMB. Most of the comments submitted change at those locations are present in term changes: References to product and to OMB were the same as those the supplement, FDA will accept such establishment license, and product and submitted directly to FDA in response a submission. FDA, therefore, estimates establishment applications are replaced to the proposed rule. FDA’s responses to that there will be an overall reduction with ‘‘biologics license’’ or ‘‘biologics these comments are found above in in burden associated with this final rule. license application;’’ and ‘‘licensee’’ is section III of this document. Responses 2. Another comment stated that the replaced with ‘‘licensed manufacturer.’’ to additional comments in the letter number of respondents and supplement These technical changes do not have an received by OMB that were not submissions, and the hours per impact on either the substantive addressed previously are addressed in submission were severely requirements or the paperwork burden the following paragraphs. underestimated by FDA. The comment of these requirements, each of which 1. A comment pointed out that few expressed concern that FDA was unable carry OMB clearance numbers as new BLA’s for blood and blood to specifically enumerate the number of follows: 21 CFR 207.20(c) and 207.21(a) components will be submitted to the submissions made under § 640.6 and (0910–0045); §§ 600.80(c)(2) and 600.81 agency. More frequently changes to suggested that this was ‘‘indicative of a (0910–0308); § 601.25(b)(3) (0910–0039); already approved applications are larger problem.’’ The comment 21 CFR 607.20(b) and 607.21 (0910– submitted as supplements. These described FDA’s approach to burden 0052); and 21 CFR 610.63 and supplements will now use Form FDA estimates as disturbing for other reasons 640.71(b)(1) (0910–0116). 356h for submission to the agency. The such as not addressing supplements for The following regulations relate to the comment stated if Form FDA 356h is products other than Whole Blood, and submission of additional information in merely substituted for the current forms because the agency’s internal tracking, certain supplements to a BLA. and manufacturers must continue to file accounting, and documentation systems Regulations in 21 CFR 600.15(b) and a supplement for each product at each may be inadequate. The comment stated 610.53(d) require submission of a location, the paperwork will actually that FDA had trouble distinguishing request for an exemption or increase because of the increased CMC between supplemental license modification regarding the temperature and establishment requirements. applications submitted under §§ 640.6 requirements during shipment and from FDA agrees that few new BLA’s for and 601.12. For the purposes of burden dating periods, respectively, for certain blood and blood components are hour development, the distinction biological products. The preparation of submitted to the agency. However, FDA between supplements submitted under an exemption request is estimated to be disagrees that the burden will increase. § 640.6 and those under § 601.12 is 8 hours; however, no requests were Previously, manufacturers desiring to somewhat artificial because the burden received by the agency under either make a single manufacturing change for the regulated community to prepare regulation in FY 1997. To account for that would affect multiple products the supplement is identical regardless of the rare instance in which a request for were required to submit a supplement to the section under which such an exemption may be made, the agency each individual product and information is submitted. has estimated one respondent per year establishment application. Under this The comment has misinterpreted the in Table 1 of this document. Section final rule a manufacturer would only estimate. In preparing this burden 640.6 (21 CFR 640.6) requires that an need to submit one supplement to the estimate, FDA estimated the burden for applicant submit a request to make a BLA. For example, under the current those sections of the regulations being certain modification of Whole Blood. PLA/ELA system, if a manufacturer amended, including § 640.6. No changes The number of supplements relating to desired to make a single change to the in § 601.12 were included in this Whole Blood filed by an applicant in FY irradiation procedure for its Whole rulemaking, therefore FDA has not 1997 totaled 74. Because the agency Blood, Red Blood Cells, Platelets, and estimated the burden of this section could not easily determine the number Plasma products manufactured at 3 which already has an approved OMB of supplements filed specific to § 640.6, locations, the manufacturer would be control number (0910–0315). The the estimate below is based on last required to submit 12 supplements to 4 burden associated with the preparation year’s total number of supplements PLA’s. Under the proposed BLA system, of supplemental applications is also VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56447 included in the estimate for § 601.12 purposes of carrying out its obligations number of Whole Blood supplements and is outside the scope of this rule. for the review of applications, FDA submitted under § 640.6, FDA looked at Since § 640.6 applies specifically to continues to believe that it is the number of all supplements related Whole Blood, an estimate as seen in unnecessary to keep separate track of only to Whole Blood, which is the scope Table 1 of this document is limited to those applications submitted under of this regulation, and conservatively only Whole Blood submissions and the § 640.6, because review of these estimated the burden to account for associated reporting burden hours. The supplemental applications is not more rather than fewer burden hours. number of respondents reflects the different from other supplemental Therefore, the estimated burden hours number of FY 1997 supplements applications submitted under § 601.12. are likely to be higher than those that submitted specifically for Whole Blood, Because FDA’s current tracking system may actually occur. and the 8 hours is an accurate estimate does not allow a search of the data base for this type of submission. For that would identify accurately the TABLE 1.ÐESTIMATED ANNUAL REPORTING BURDEN1 Annual 21 CFR Section No. of Frequency per Total Annual Hours per Total Hours Respondents Response Responses Response 601.2 60 1 60 1,600 96,000 600.15(b) 1 1 1 8 8 610.53(d) 1 1 1 8 8 640.6 74 1 74 8 592 1 There are no capital costs or operating and maintenance costs associated with this collection of information. The information collection provisions 21 CFR Part 50 21 CFR Parts 610 and 660 of the final rule have been submitted to Human research subjects, Prisoners, Biologics, Labeling, Reporting and OMB for review. Prior to the effective Reporting and recordkeeping recordkeeping requirements. date of the final rule, FDA will publish requirements, Safety. a document in the Federal Register 21 CFR Part 640 announcing OMB’s decision to approve, 21 CFR Part 56 Blood, Labeling, Reporting and modify, or disapprove the information Human research subjects, Reporting recordkeeping requirements. collection provisions in the final rule. and recordkeeping requirements, Safety. Therefore, under the Federal Food, An agency may not conduct or sponsor, Drug, and Cosmetic Act, the Public and a person is not required to respond 21 CFR Part 58 Health Service Act, and authority to, a collection of information unless it Laboratories, Reporting and delegated to the Commissioner of Food displays a currently valid OMB control recordkeeping requirements. and Drugs, 21 CFR parts 3, 5, 10, 20, 50, number. 21 CFR Part 207 56, 58, 207, 310, 312, 316, 600, 601, 607, 610, 640, and 660 are amended as D. Environmental Impact Drugs, Reporting and recordkeeping follows: The agency has determined under 21 requirements. PART 3ÐPRODUCT JURISDICTION CFR 25.30(h) that this action is of a type 21 CFR Part 310 that does not individually or Administrative practice and 1. The authority citation for 21 CFR cumulatively have a significant effect on procedure, Drugs, Labeling, Medical part 3 continues to read as follows: the human environment. Therefore, devices, Reporting and recordkeeping neither an environmental assessment Authority: 21 U.S.C. 321, 351, 352, 353, requirements. 355, 360, 360c–360f, 360h–360j, 360gg– nor an environmental impact statement 360ss, 371(a), 379e, 381, 394; 42 U.S.C. 216, is required. 21 CFR Part 312 262. List of Subjects Drugs, Exports, Imports, 2. Section 3.2 is amended by revising Investigations, Labeling, Medical paragraph (k) to read as follows: 21 CFR Part 3 research, Reporting and recordkeeping Administrative practice and requirements, Safety. § 3.2 Definitions. procedure, Biologics, Drugs, Medical 21 CFR Part 316 * * * * * devices. (k) Premarket review includes the Administrative practice and examination of data and information in 21 CFR Part 5 procedure, Drugs, Reporting and an application for premarket review Authority delegations (Government recordkeeping requirements. described in sections 505, 510(k), 513(f), agencies), Imports, Organization and 21 CFR Part 600 515, or 520(g) or 520(l) of the act or functions (Government agencies). section 351 of the Public Health Service Biologics, Reporting and Act of data and information contained 21 CFR Part 10 recordkeeping requirements. in any investigational new drug (IND) Administrative practice and 21 CFR Part 601 application, investigational device procedure, News media. Administrative practice and exemption (IDE), new drug application (NDA), biologics license application, 21 CFR Part 20 procedure, Biologics, Confidential business information. device premarket notification, device Confidential business information, reclassification petition, and premarket Courts, Freedom of information, 21 CFR Part 607 approval application (PMA). Government employees. Blood. * * * * * VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 56448 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations PART 5ÐDELEGATIONS OF PART 20ÐPUBLIC INFORMATION Authority: 21 U.S.C. 342, 346, 346a, 348, AUTHORITY AND ORGANIZATION 351, 352, 353, 355, 360, 360b–360f, 360h– 8. The authority citation for 21 CFR 360j, 371, 379e, 381; 42 U.S.C. 216, 262, 3. The authority citation for 21 CFR part 20 continues to read as follows: 263b–263n. part 5 continues to read as follows: Authority: 5 U.S.C. 552; 18 U.S.C. 1905; 19 15. Section 58.3 is amended by Authority: 5 U.S.C. 504, 552, App. 2; 7 U.S.C. 2531–2582; 21 U.S.C. 321–393, 1401– revising paragraph (e)(13) to read as U.S.C. 138a, 2271; 15 U.S.C. 638, 1261–1282, 1403; 42 U.S.C. 241, 242, 242a, 242l, 242n, follows: 3701–3711a; 15 U.S.C. 1451–1461; 21 U.S.C. 243, 262, 263, 263b–263n, 264, 265, 300u– * * * * * 41–50, 61–63, 141–149, 321–394, 467f, 300u–5, 300aa–1. (e) * * * 679(b), 801–886, 1031–1309; 35 U.S.C. 156; 9. Section 20.100 is amended by (13) An application for a biologics 42 U.S.C. 241, 242, 242a, 242l, 242n, 243, revising paragraph (c)(24) to read as license, described in part 601 of this 262, 263, 264, 265, 300u–300u–5, 300aa–1; follows: chapter. 1395y, 3246b, 4332, 4831(a), 10007–10008; * * * * * E.O. 11921, 41 FR 24294, 3 CFR, 1977 Comp., § 20.100 Applicability; cross-reference to p. 124–131; E.O. 12591, 52 FR 13414, 3 CFR, other regulations. 1988 Comp., p. 220–223. PART 207ÐREGISTRATION OF * * * * * PRODUCERS OF DRUGS AND LISTING 4. Section 5.58 is amended by revising (c) * * * OF DRUGS IN COMMERCIAL paragraph (a)(3) to read as follows: (24) Applications for biologics DISTRIBUTION licenses for biological products, in § 5.58 Orphan products. § 601.51 of this chapter. 16. The authority citation for 21 CFR part 207 continues to read as follows: (a) * * * * * * * * (3) Applications for biologics licenses Authority: 21 U.S.C. 331, 351, 352, 355, for biological products; or PART 50ÐPROTECTION OF HUMAN 360, 360b, 371, 374; 42 U.S.C. 262. * * * * * SUBJECTS 17. Section 207.20 is amended by 5. Section 5.67 is amended by revising 10. The authority citation for 21 CFR revising paragraph (c) to read as follows: paragraphs (a), (b), and (c) to read as part 50 continues to read as follows: follows: § 207.20 Who must register and submit a Authority: 21 U.S.C. 321, 346, 346a, 348, drug list. § 5.67 Issuance of notices of opportunity 352, 353, 355, 360, 360c–360f, 360h–360j, * * * * * for a hearing on proposals for denial of 371, 379e; 42 U.S.C. 216, 241, 262, 263b– (c) Before beginning manufacture or approval of applications for licenses or 263n. processing of a drug subject to one of revocation of licenses and certain notices 11. Section 50.3 is amended by the following applications, an owner or of revocation of licenses. revising paragraph (b)(12) to read as operator of an establishment is required * * * * * follows: to register before the agency approves it: (a) Notices of opportunity for a A new drug application, a new animal hearing on proposals to deny approval § 50.3 Definitions. drug application, a medicated feed or filing of applications for biologics * * * * * application, or a biologics license licenses under § 601.4(b) of this chapter. (b) * * * application. (b) Notices of opportunity for a (12) An application for a biologics * * * * * hearing on proposals to revoke biologics license, described in part 601 of this 18. Section 207.21 is amended by licenses under § 601.5(b) of this chapter. chapter. revising the second sentence of (c) Notices of revocation, at the * * * * * paragraph (a) to read as follows: manufacturer’s request, of biologics licenses under §§ 601.5(a) and 601.8 of PART 56ÐINSTITUTIONAL REVIEW § 207.21 Times for registration and drug this chapter. BOARDS listing. (a) * * * If the owner or operator of * * * * * 12. The authority citation for 21 CFR the establishment has not previously part 56 continues to read as follows: PART 10ÐADMINISTRATIVE entered into such an operation, the PRACTICES AND PROCEDURES Authority: 21 U.S.C. 321, 346, 346a, 348, owner or operator shall register within 351, 352, 353, 355, 360, 360c–360f, 360h– 5 days after submitting a new drug 6. The authority citation for 21 CFR 360j, 371, 379e, 381; 42 U.S.C. 216, 241, 262, application, new animal drug part 10 continues to read as follows: 263b–263n. application, medicated feed application, Authority: 5 U.S.C. 551–558, 701–706; 15 13. Section 56.102 is amended by or a biologics license application. * * * U.S.C. 1451–1461; 21 U.S.C. 141–149, 321– revising paragraph (b)(11) to read as * * * * * 397, 467f, 679, 821, 1034; 28 U.S.C. 2112; 42 follows: U.S.C. 201, 262, 263b, 264. PART 310ÐNEW DRUGS § 56.102 Definitions. 7. Section 10.50 is amended by * * * * * 19. The authority citation for 21 CFR revising paragraph (c)(19) to read as (b) * * * part 310 continues to read as follows: follows: (11) An application for a biologics Authority: 21 U.S.C. 321, 331, 351, 352, § 10.50 Promulgation of regulations and license, described in part 601 of this 353, 355, 360b–360f, 360j, 361(a), 371, 374, orders after an opportunity for a formal chapter. 375, 379e; 42 U.S.C. 216, 241, 242(a), 262, 263b–263n. evidentiary public hearing. * * * * * * * * * * 20. Section 310.4 is revised to read as (c) * * * PART 58ÐGOOD LABORATORY follows: (19) Section 351(a) of the Public PRACTICE FOR NONCLINICAL LABORATORY STUDIES § 310.4 Biologics; products subject to Health Service Act on a biologics license control. license for a biological product. 14. The authority citation for 21 CFR (a) If a drug has an approved license * * * * * part 58 continues to read as follows: under section 351 of the Public Health VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56449 Service Act (42 U.S.C. 262 et seq.) or (9) Marketing application means an § 600.80 Postmarketing reporting of under the animal virus, serum, and application for approval of a new drug adverse experiences. toxin law of March 4, 1913 (21 U.S.C. filed under section 505(b) of the act or * * * * * 151 et seq.), it is not required to have an application for a biologics license (b) Review of adverse experiences. an approved application under section submitted under section 351 of the Any person having a biologics license 505 of the act. Public Health Service Act (42 U.S.C. under § 601.20 of this chapter shall (b) To obtain marketing approval for 262). promptly review all adverse experience radioactive biological products for * * * * * information pertaining to its product human use, as defined in § 600.3(ee) of obtained or otherwise received by the this chapter, manufacturers must PART 600ÐBIOLOGICAL PRODUCTS: licensed manufacturer from any source, comply with the provisions of 601.2(b) GENERAL foreign or domestic, including of this chapter. information derived from commercial 21. Section 310.503 is amended by 26. The authority citation for 21 CFR marketing experience, postmarketing revising the first sentence of paragraph part 600 continues to read as follows: clinical investigations, postmarketing (b) to read as follows: Authority: 21 U.S.C. 321, 351, 352, 353, epidemiological/surveillance studies, 355, 360, 360i, 371, 374; 42 U.S.C. 216, 262, reports in the scientific literature, and § 310.503 Requirements regarding certain 263, 263a, 264, 300aa–25. radioactive drugs. unpublished scientific papers. * ** * * * * * 27. Section 600.3 is amended by * * * * * (b) It is the opinion of the Nuclear revising paragraphs (n) and (w) to read (c) * * * Regulatory Commission, and the Food as follows: (2) Periodic adverse experience reports. (i) The licensed manufacturer and Drug Administration that this § 600.3 Definitions. exemption should not apply for certain shall report each adverse experience not specific drugs and that these drugs * * * * * reported under paragraph (c)(1)(i) of this should be appropriately labeled for uses (n) The word standards means section at quarterly intervals, for 3 years for which safety and effectiveness can specifications and procedures from the date of issuance of the be demonstrated by new drug applicable to an establishment or to the biologics license, and then at annual applications or through licensing under manufacture or release of products, intervals. The licensed manufacturer the Public Health Service Act (42 U.S.C. which are prescribed in this subchapter shall submit each quarterly report 262 et seq.) in the case of biologics. * or established in the biologics license within 30 days of the close of the * * application designed to insure the quarter (the first quarter beginning on * * * * * continued safety, purity, and potency of the date of issuance of the biologics such products. license) and each annual report within PART 312ÐINVESTIGATIONAL NEW * * * * * 60 days of the anniversary date of the DRUG APPLICATION (w) Establishment has the same issuance of the biologics license. * ** 22. The authority citation for 21 CFR meaning as ‘‘facility’’ in section 351 of * * * * * part 312 continues to read as follows: the Public Health Service Act and (g) Multiple reports. A licensed includes all locations. manufacturer should not include in Authority: 21 U.S.C. 321, 331, 351, 352, reports under this section any adverse 353, 355, 371; 42 U.S.C. 262. * * * * * 28. Section 600.15 is amended by experience that occurred in clinical 23. Section 312.3 is amended in revising paragraph (b) to read as follows: trials if they were previously submitted paragraph (b) by revising the definition as part of the biologics license for Marketing application to read as § 600.15 Temperatures during shipment. application. If a report refers to more follows: * * * * * than one biological product marketed by a licensed manufacturer, the licensed § 312.3 Definitions and interpretations. (b) Exemptions. Exemptions or modifications shall be made only upon manufacturer should submit the report * * * * * written approval, in the form of a to the biologics license application for (b) * * * the product listed first in the report. Marketing application means an supplement to the biologics license application for a new drug submitted application, approved by the Director, * * * * * under section 505(b) of the act or a Center for Biologics Evaluation and (j) Revocation of biologics license. If a biologics license application for a Research. licensed manufacturer fails to establish biological product submitted under the 29. Section 600.21 is amended by and maintain records and make reports Public Health Service Act. revising the first sentence to read as required under this section with respect to a licensed biological product, FDA * * * * * follows: may revoke the biologics license for § 600.21 Time of inspection. PART 316ÐORPHAN DRUGS such a product in accordance with the The inspection of an establishment for procedures of 601.5 of this chapter. 24. The authority citation for 21 CFR which a biologics license application is * * * * * part 316 continues to read as follows: pending need not be made until the 31. Section 600.81 is amended by Authority: 21 U.S.C. 360aa, 360bb, 360cc, establishment is in operation and is revising the first sentence to read as 360dd, 371. manufacturing the complete product for follows: 25. Section 316.3 is amended by which a biologics license is desired. § 600.81 Distribution reports. revising paragraph (b)(9) to read as *** follows: 30. Section 600.80 is amended by The licensed manufacturer shall revising the first sentence of paragraph submit information about the quantity § 316.3 Definitions. (b), the first and second sentences of of the product distributed under the * * * * * paragraph (c)(2)(i), and by revising biologics license, including the quantity (b) * * * paragraphs (g) and (j) to read as follows: distributed to distributors. * ** VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 56450 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations PART 601ÐLICENSING required by part 54 of this chapter. An plasmid product, therapeutic synthetic application for a biologics license shall peptide product of 40 or fewer amino 32. The authority citation for 21 CFR not be considered as filed until all acids, monoclonal antibody product for part 601 continues to read as follows: pertinent information and data have in vivo use, or therapeutic recombinant Authority: 15 U.S.C. 1451–1561; 21 U.S.C. been received from the manufacturer by DNA-derived product, an applicant 321, 351, 352, 353, 355, 360, 360c–360f, the Center for Biologics Evaluation and shall submit a biologics license 360h–360j, 371, 374, 379e, 381; 42 U.S.C. Research. The applicant shall also application in accordance with 216, 241, 262, 263; sec.122, Pub. L. 105–115, include either a claim for categorical paragraph (a) of this section except that 111 Stat. 2322 (21 U.S.C. 355 note). exclusion under § 25.30 or § 25.31 of the following sections in parts 600 this chapter or an environmental through 680 of this chapter shall not be § 601.1 [Removed] assessment under § 25.40 of this applicable to such products: 33. Section 601.1 Two forms of chapter. In lieu of the procedures §§ 600.10(b) and (c), 600.11, 600.12, licenses is removed. described in this paragraph, 600.13, 610.11, 610.53, and 610.62 of 34. Section 601.2 is revised to read as applications for radioactive biological this chapter. follows: products shall be handled as set forth in (2) To the extent that the requirements § 601.2 Applications for biologics paragraph (b) of this section. The in this paragraph (c) conflict with other licenses; procedures for filing. applicant, or the applicant’s attorney, requirements in this subchapter (except (a) General. To obtain a biologics agent, or other authorized official shall for those products described in license under section 351 of the Public sign the application. An application for paragraph (b) of this section for which Health Service Act for any biological any of the following specified categories a new drug application is required), this product, the manufacturer shall submit of biological products subject to paragraph (c) shall supersede other an application to the Director, Center for licensure shall be handled as set forth requirements. Biologics Evaluation and Research, on in paragraph (c) of this section: (d) Approval of a biologics license forms prescribed for such purposes, and (1) Therapeutic DNA plasmid application or issuance of a biologics shall submit data derived from products; license shall constitute a determination (2) Therapeutic synthetic peptide nonclinical laboratory and clinical that the establishment(s) and the products of 40 or fewer amino acids; product meet applicable requirements to studies which demonstrate that the (3) Monoclonal antibody products for manufactured product meets prescribed ensure the continued safety, purity, and in vivo use; and potency of such products. Applicable requirements of safety, purity, and (4) Therapeutic recombinant DNA- potency; with respect to each requirements for the maintenance of derived products. establishments for the manufacture of a nonclinical laboratory study, either a (b) Radioactive biological products. statement that the study was conducted product subject to this section shall To obtain marketing approval for a include but not be limited to the good in compliance with the requirements set radioactive biological product, as forth in part 58 of this chapter, or, if the manufacturing practice requirements set defined in § 600.3(ee) of this chapter, forth in parts 210, 211, 600, 606, and study was not conducted in compliance the manufacturer of such product shall with such regulations, a brief statement 820 of this chapter. comply with the following: (e) Any establishment and product of the reason for the noncompliance; (1) An applicant for a radioactive license for a biological product issued statements regarding each clinical coupled antibody, which means a under section 351 of the Public Health investigation involving human subjects product that consists of an antibody Service Act (42 U.S.C. 201 et seq.) that contained in the application, that it component coupled with a radionuclide has not been revoked or suspended as either was conducted in compliance component (or an antibody component of December 20, 1999, shall constitute with the requirements for institutional intended solely to be coupled with a an approved biologics license review set forth in part 56 of this radionuclide) in which both application in effect under the same chapter; or was not subject to such components provide a pharmacological terms and conditions set forth in such requirements in accordance with effect but the biological component product license and such portions of the § 56.104 or § 56.105, and was conducted determines the site of action, shall establishment license relating to such in compliance with requirements for submit a biologics license application to product. informed consent set forth in part 50 of the Director, Center for Biologics this chapter. A full description of Evaluation and Research, Food and § 601.3 [Removed] manufacturing methods; data Drug Administration, except if, as 35. Section 601.3 License forms is establishing stability of the product determined by FDA, there are removed. through the dating period; sample(s) significant scientific issues associated 36. Section 601.4 is amended by representative of the product for with the radionuclide or other revising paragraph (a) and the first introduction or delivery for introduction chemically synthesized component, in sentence of paragraph (b) to read as into interstate commerce; summaries of which case a new drug application shall follows: results of tests performed on the lot(s) be submitted to the Center for Drug represented by the submitted sample(s); Evaluation and Research, Food and § 601.4 Issuance and denial of license. specimens of the labels, enclosures, and Drug Administration; (a) A biologics license shall be issued containers, and if applicable, any (2) An applicant for a radioactive upon a determination by the Director, Medication Guide required under part biological product other than as Center for Biologics Evaluation and 208 of this chapter proposed to be used described in paragraph (b)(1) of this Research that the establishment(s) and for the product; and the address of each section, shall submit a new drug the product meet the applicable location involved in the manufacture of application to the Center for Drug requirements established in this the biological product shall be listed in Evaluation and Research, Food and chapter. A biologics license shall be the biologics license application. The Drug Administration. valid until suspended or revoked. applicant shall also include a financial (c)(1) To obtain marketing approval (b) If the Commissioner determines certification or disclosure statement(s) for a biological product subject to that the establishment or product does or both for clinical investigators as licensure which is a therapeutic DNA not meet the requirements established VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56451 in this chapter, the biologics license demonstrated or achieved and the § 601.10 [Removed] application shall be denied and the licensed manufacturer does not waive 40. Section 601.10 Establishment applicant shall be informed of the the opportunity for a hearing, the licenses; issuance and conditions is grounds for, and of an opportunity for Commissioner shall issue a notice of removed. a hearing on, the decision. * * * opportunity for hearing on the matter 41. Section 601.20 is revised to read 37. Section 601.5 is revised to read as under § 12.21(b) of this chapter. as follows: follows: 38. Section 601.6 is revised to read as § 601.20 Biologics licenses; issuance and follows: § 601.5 Revocation of license. conditions. (a) A biologics license shall be § 601.6 Suspension of license. (a) Examination—compliance with revoked upon application of the (a) Whenever the Commissioner has requirements. A biologics license manufacturer giving notice of intention reasonable grounds to believe that any application shall be approved only upon to discontinue the manufacture of all of the grounds for revocation of a examination of the product and upon a products manufactured under such license exist and that by reason thereof determination that the product complies license or to discontinue the there is a danger to health, the with the standards established in the manufacture of a particular product for Commissioner may notify the licensed biologics license application and the which a license is held and waiving an manufacturer that the biologics license requirements prescribed in the opportunity for a hearing on the matter. is suspended and require that the regulations in this chapter including but (b)(1) The Commissioner shall notify licensed manufacturer do the following: not limited to the good manufacturing the licensed manufacturer of the (1) Notify the selling agents and practice requirements set forth in parts intention to revoke the biologics license, distributors to whom such product or 210, 211, 600, 606, and 820 of this setting forth the grounds for, and products have been delivered of such chapter. offering an opportunity for a hearing on suspension, and (b) Availability of product. No the proposed revocation if the (2) Furnish to the Director, Center for biologics license shall be issued unless: Commissioner finds any of the Biologics Evaluation and Research, (1) The product intended for following: complete records of such deliveries and introduction into interstate commerce is (i) Authorized Food and Drug notice of suspension. available for examination, and Administration employees after (2) Such product is available for (b) Upon suspension of a license, the reasonable efforts have been unable to inspection during all phases of Commissioner shall either: gain access to an establishment or a manufacture. location for the purpose of carrying out (1) Proceed under the provisions of (c) Manufacturing process— the inspection required under § 600.21 § 601.5(b) of this chapter to revoke the impairment of assurances. No product of this chapter, license, or shall be licensed if any part of the (ii) Manufacturing of products or of a (2) If the licensed manufacturer process of or relating to the manufacture product has been discontinued to an agrees, hold revocation in abeyance of such product, in the judgment of the extent that a meaningful inspection or pending resolution of the matters Director, Center for Biologics Evaluation evaluation cannot be made, involved. and Research, would impair the (iii) The manufacturer has failed to 39. Section 601.9 is revised to read as assurances of continued safety, purity, report a change as required by § 601.12 follows: and potency as provided by the of this chapter, § 601.9 Licenses; reissuance. regulations contained in this chapter. (iv) The establishment or any location (d) Inspection—compliance with thereof, or the product for which the (a) Compliance with requirements. A requirements. A biologics license shall license has been issued, fails to conform biologics license, previously suspended be issued or a biologics license to the applicable standards established or revoked, may be reissued or application approved only after in the license and in this chapter reinstated upon a showing of inspection of the establishment(s) listed designed to ensure the continued safety, compliance with requirements and in the biologics license application and purity, and potency of the manufactured upon such inspection and examination upon a determination that the product, as may be considered necessary by the establishment(s) complies with the (v) The establishment or the Director, Center for Biologics Evaluation standards established in the biologics manufacturing methods have been so and Research. license application and the changed as to require a new showing (b) Exclusion of noncomplying requirements prescribed in applicable that the establishment or product meets location. A biologics license, excluding regulations. the requirements established in this a location or locations that fail to (e) One biologics license to cover all chapter in order to protect the public comply with the requirements in this locations. One biologics license shall be health, or chapter, may be issued without further issued to cover all locations meeting the (vi) The licensed product is not safe application and concurrently with the establishment standards identified in and effective for all of its intended uses suspension or revocation of the license the approved biologics license or is misbranded with respect to any for noncompliance at the excluded application and each location shall be such use. location or locations. subject to inspection by FDA officials. (2) Except as provided in § 601.6 of (c) Exclusion of noncomplying 42. Section 601.21 is revised to read this chapter, or in cases involving product(s). In the case of multiple as follows: willfulness, the notification required in products included under a single this paragraph shall provide a biologics license application, a biologics § 601.21 Products under development. reasonable period for the licensed license may be issued, excluding the A biological product undergoing manufacturer to demonstrate or achieve noncompliant product(s), without development, but not yet ready for a compliance with the requirements of further application and concurrently biologics license, may be shipped or this chapter, before proceedings will be with the suspension or revocation of the otherwise delivered from one State or instituted for the revocation of the biologics license for a noncompliant possession into another State or license. If compliance is not product(s). possession provided such shipment or VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 56452 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations delivery is not for introduction or product, including information derived from necessary, either to review and act on delivery for introduction into interstate investigation, commercial marketing, or proposed protocols or upon indication commerce, except as provided in published literature. If the submission is by from the licensed manufacturer that the sections 505(i) and 520(g) of the Federal an interested person other than a licensed studies will commence at a specified manufacturer, a statement signed by the Food, Drug, and Cosmetic Act, as person responsible for such submission shall reasonable time. If no such commitment amended, and the regulations be included, stating that to the best of his is made, or adequate and appropriate thereunder (21 CFR parts 312 and 812). knowledge and belief, it fairly reflects a studies are not undertaken, the biologics 43. Section 601.22 is amended by balance of all the available information, license or licenses shall be revoked. revising the section heading and the favorable and unfavorable available to him, (2) * * * If the progress report is first and second sentences to read as pertinent to an evaluation of the safety, inadequate or if the Commissioner follows: effectiveness, and labeling of the product. concludes that the studies are not being * * * * * pursued promptly and diligently, or if § 601.22 Products in short supply; initial (f) * * * interim results indicate the product is manufacturing at other than licensed (3) * * * Where the Commissioner location. not a medical necessity, the biologics determines that the potential benefits license or licenses shall be revoked. A biologics license issued to a outweigh the potential risks, the (3) Promptly upon completion of the manufacturer and covering all locations proposed order shall provide that the studies undertaken on the product, the of manufacture shall authorize persons biologics license for any biological Commissioner will review all available other than such manufacturer to product, falling within this paragraph, data and will either retain or revoke the conduct at places other than such will not be revoked but will remain in biologics license or licenses involved. locations the initial, and partial effect on an interim basis while the data *** manufacturing of a product for necessary to support its continued shipment solely to such manufacturer * * * * * marketing are being obtained for 46. Section 601.51 is amended by only to the extent that the names of such evaluation by the Food and Drug revising the section heading, the first persons and places are registered with Administration. * * * sentence of paragraph (a), and paragraph the Commissioner of Food and Drugs (b) to read as follows: and it is found upon application of such * * * * * 45. Section 601.26 is amended by manufacturer, that the product is in revising the second sentence of the § 601.51 Confidentiality of data and short supply due either to the peculiar information in applications for biologics introductory text of paragraph (e), the growth requirements of the organism licenses. first, fifth, and sixth sentences of involved or to the scarcity of the animal paragraph (f)(1), the second sentence of (a) For purposes of this section the required for manufacturing purposes, paragraph (f)(2), and the first sentence of biological product file includes all data and such manufacturer has established paragraph (f)(3) to read as follows: and information submitted with or with respect to such persons and places incorporated by reference in any such procedures, inspections, tests or § 601.26 Reclassification procedures to application for a biologics license, IND’s other arrangements as will ensure full determine that licensed biological products incorporated into any such application, compliance with the applicable are safe, effective, and not misbranded master files, and other related regulations of this subchapter related to under prescribed, recommended, or submissions. * ** continued safety, purity, and potency. suggested conditions of use. (b) The existence of a biological Such persons and places shall be subject * * * * * product file will not be disclosed by the to all regulations of this subchapter (e) * * * Where the Commissioner Food and Drug Administration before a except §§ 601.2 to 601.6, 601.9, 601.10, determines that there is a compelling biologics license application has been 601.20, 601.21 to 601.33, and 610.60 to medical need and no suitable alternative approved unless it has previously been 610.65 of this chapter. * ** therapeutic, prophylactic, or diagnostic publicly disclosed or acknowledged. 44. Section 601.25 is amended in agent for any biological product that is The Director of the Center for Biologics paragraph (b)(3) under ‘‘Biological available in sufficient quantities to meet Evaluation and Research will maintain Products Review Information’’ by current medical needs, the final order a list available for public disclosure of revising section VIII and by revising the shall provide that the biologics license biological products for which a license third sentence of paragraph (f)(3) to read application for that biological product application has been approved. as follows: will not be revoked, but will remain in * * * * * effect on an interim basis while the data § 601.25 Review procedures to determine necessary to support its continued PART 607ÐESTABLISHMENT that licensed biological products are safe, marketing are being obtained for effective, and not misbranded under REGISTRATION AND PRODUCT prescribed, recommended, or suggested evaluation by the Food and Drug LISTING FOR MANUFACTURERS OF conditions of use. Administration. * ** HUMAN BLOOD AND BLOOD (f) Additional studies and labeling. (1) PRODUCTS * * * * * Within 60 days following publication of (b) * * * the final order, each licensed 47. The authority citation for 21 CFR (3) * * * manufacturer for a biological product part 607 continues to read as follows: BIOLOGICAL PRODUCTS REVIEW designated as requiring further study to Authority: 21 U.S.C. 321, 331, 351, 352, INFORMATION justify continued marketing on an 355, 360, 371, 374; 42 U.S.C. 216, 262. * * * * * interim basis, under paragraph (e) of VIII. If the submission is by a licensed 48. Section 607.20 is amended by this section, shall submit to the revising paragraph (b) to read as follows: manufacturer, a statement signed by the Commissioner a written statement authorized official of the licensed § 607.20 Who must register and submit a manufacturer shall be included, stating that intended to show that studies adequate blood product list. to the best of his or her knowledge and belief, and appropriate to resolve the questions it includes all information, favorable and raised about the product have been * * * * * unfavorable, pertinent to an evaluation of the undertaken. * * * The Commissioner (b) Preparatory to engaging in the safety, effectiveness, and labeling of the may extend this 60-day period if manufacture of blood products, owners VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56453 or operators of establishments who are § 610.63 Divided manufacturing § 640.64 Collection of blood for Source submitting a biologics license responsibility to be shown. Plasma. application to manufacture blood If two or more licensed manufacturers * * * * * products are required to register before participate in the manufacture of a (c) * * * One of the following the biologics license application is biological product, the name, address, formulas shall be used in the indicated approved. and license number of each must appear volumes, except that a different formula * * * * * on the package label, and on the label may be used for plasma for manufacture 49. Section 607.21 is amended by of the container if capable of bearing a into noninjectable products if prior revising the second sentence to read as full label. written approval is obtained from the follows: Director of the Center for Biologics PART 640ÐADDITIONAL STANDARDS Evaluation and Research at the time of § 607.21 Times for establishment FOR HUMAN BLOOD AND BLOOD licensing or in the form of a supplement registration and blood product listing. PRODUCTS to the biologics license application for ** * If the owner or operator of the Source Plasma. establishment has not previously 54. The authority citation for 21 CFR * * * * * entered into such operation (defined in part 640 continues to read as follows: 59. Section 640.65 is amended by § 607.3(d) of this chapter) for which a Authority: 21 U.S.C. 321, 351, 352, 353, license is required, registration shall revising the last sentence of paragraph 355, 360, 371; 42 U.S.C. 216, 262, 263, 263a, (a) to read as follows: follow within 5 days after the 264. submission of a biologics license § 640.65 Plasmapheresis. application in order to manufacture 55. Section 640.6 is amended by (a) * * * This procedure shall be blood products. * ** revising the introductory text to read as follows: described in detail in the biologics license application. PART 610ÐGENERAL BIOLOGICAL § 640.6 Modifications of Whole Blood. PRODUCTS STANDARDS * * * * * Upon approval by the Director, Center 60. Section 640.71 is amended by 50. The authority citation for 21 CFR for Biologics Evaluation and Research, revising the introductory text of part 610 continues to read as follows: of a supplement to the biologics license paragraphs (a) and (b) and by revising Authority: 21 U.S.C. 321, 351, 352, 353, application for Whole Blood a paragraph (b)(1) to read as follows: 355, 360, 371; 42 U.S.C. 216, 262, 263, 263a, manufacturer may prepare Whole Blood 264. from which the antihemophilic factor § 640.71 Manufacturing responsibility. 51. Section 610.13 is amended by has been removed, provided the Whole (a) All steps in the manufacture of revising the introductory paragraph and Blood meets the applicable Source Plasma, including donor the first sentence of paragraph (a)(1) to requirements of this subchapter and the examination, blood collection, read as follows: following conditions are met: plasmapheresis, laboratory testing, * * * * * labeling, storage, and issuing shall be § 610.13 Purity. 56. Section 640.21 is amended by performed by personnel of the licensed Products shall be free of extraneous revising paragraph (c) to read as follows: manufacturer of the Source Plasma, material except that which is except that the following tests may be unavoidable in the manufacturing § 640.21 Suitability of donors. performed by personnel of a process described in the approved * * * * * manufacturer licensed for blood or biologics license application. In (c) Plateletpheresis donors shall meet blood derivatives under section 351(a) addition, products shall be tested as criteria for suitability as described in a of the Public Health Service Act, or by provided in paragraphs (a) and (b) of biologics license application or a a clinical laboratory that meets the this section. supplement to the biologics license standards of the Clinical Laboratories (a)(1) Test for residual moisture. Each application, and must have the written Improvement Act of 1967 (CLIA) (42 lot of dried product shall be tested for approval of the Director, Center for U.S.C. 263a): Provided, The residual moisture and shall meet and Biologics Evaluation and Research, establishment or the clinical laboratory not exceed established limits as Food and Drug Administration. is qualified to perform the assigned specified by an approved method on file 57. Section 640.22 is amended by test(s). in the biologics license application. revising paragraph (c) to read as follows: * * * * * *** (b) Such testing shall not be * * * * * § 640.22 Collection of source material. considered divided manufacturing, 52. Section 610.53 is amended by * * * * * which requires two biologics licenses revising paragraph (d) to read as (c) If plateletpheresis is used, the for Source Plasma: Provided, That follows: procedure for collection shall be as (1) The results of such tests are § 610.53 Dating periods for licensed described in a biologics license maintained by the licensed biological products. application or a supplement to a manufacturer of the Source Plasma * * * * * biologics license application, and must whereby such results may be reviewed (d) Exemptions. Exemptions or have the written approval of the by a licensed physician as required in modifications shall be made only upon Director, Center for Biologics Evaluation § 640.65(b)(2) of this chapter and by an written approval, in the form of a and Research, Food and Drug authorized representative of the Food supplement to the biologics license Administration. and Drug Administration. application, issued by the Director, * * * * * * * * * * Center for Biologics Evaluation and 58. Section 640.64 is amended by 61. Section 640.74 is amended by Research. revising the second sentence of the revising paragraph (a) and the last 53. Section 610.63 is revised to read introductory text of paragraph (c) to sentence of paragraph (b)(2) to read as as follows: read as follows: follows: VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 56454 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations § 640.74 Modification of Source Plasma. § 660.33 Testing of source material. on our revised Indian gas valuation (a) Upon approval by the Director, ** * Where fewer than three donor regulations that are effective January 1, Center for Biologics Evaluation and sources of an antibody specificity are 2000. Research, Food and Drug available, test discrepancies shall be DATES: See SUPPLEMENTARY INFORMATION Administration, of a supplement to the resolved in accordance with the section for meeting dates. biologics license application for Source manufacturer’s biologics license ADDRESSES: See SUPPLEMENTARY Plasma, a manufacturer may prepare application. * ** INFORMATION section for meeting Source Plasma as a liquid product for a Dated: August 30, 1999. addresses. licensed blood derivative manufacturer Jane E. Henney, FOR FURTHER INFORMATION CONTACT: Ms. who has indicated a need for a liquid Commissioner of Food and Drugs. Vicki Skinner, Royalty Valuation product. Donna E. Shalala, Division, Royalty Management Program, (b) * * * Secretary of Health and Human Services. Minerals Management Service, P.O. Box (2) * * * Such evidence may be [FR Doc. 99–27159 Filed 10–19–99; 8:45 am] 25165, MS 3152, Denver, CO 80225– submitted by either the licensed BILLING CODE 4160±01±F 0165; telephone number (303) 275– manufacturer of the Source Plasma 7241, fax number (303) 275–7227. Liquid or the manufacturer of the final SUPPLEMENTARY INFORMATION: The dates blood derivative product who has DEPARTMENT OF HEALTH AND and locations of the training sessions are requested the Source Plasma Liquid. HUMAN SERVICES as follows: * * * * * 1. Oklahoma City, OK: November 1, Food and Drug Administration 1999, 9 a.m. to 4 p.m., Central time. PART 660ÐADDITIONAL STANDARDS 21 CFR Part 25 Clarion Airport West Hotel, 737 S. FOR DIAGNOSTIC SUBSTANCES FOR Meridian, Oklahoma City, OK 73108; LABORATORY TESTS Environmental Impact Considerations telephone number (405) 942–8511. 2. Tulsa, OK: November 3, 1999, 9 62. The authority citation for 21 CFR CFR Correction part 660 continues to read as follows: a.m. to 4 p.m., Central time. Radisson In Title 21 of the Code of Federal Inn, 2201 N. 77th East Ave., Tulsa, OK Authority: 21 U.S.C. 321, 351, 352, 353, Regulations, parts 1 to 99, revised as of 74115; telephone number (918) 835– 355, 360, 371; 42 U.S.C. 216, 262, 263, 263a, 9911. 264. Apr. 1, 1999, page 240, § 25.32 is corrected by reinstating text missing 3. Farmington, NM: November 16, 63. Section 660.21 is amended by from the end of paragraph (i) and the 1999, 9 a.m. to 4 p.m., Mountain time. revising paragraphs (a)(3) and (d) to read beginning of paragraph (j). In the eighth Holiday Inn, 600 E. Broadway, as follows: line of paragraph (i) ‘‘percdditive’’ is Farmington, NM 87401; telephone corrected to read ‘‘percent additive’’ and number (505) 327–9811. § 660.21 Processing. the following text is added between the 4. Houston, TX: November 30, 1999, (a) * * * words ‘‘percent’’ and ‘‘additive’’: 9 a.m. to 4 p.m., Central time. Embassy (3) A lot may be subdivided into Suites Hotel, 9090 Southwest Freeway, § 25.32 Foods, food additives, and color Houston, TX 77074; telephone number clean, sterile vessels. Each subdivision additives. shall constitute a sublot. If lots are to be (713) 995–0123. subdivided, the manufacturer shall * * * * * 5. Dallas, TX: December 6, 1999, 9 include this information in the biologics (i) * * * –by–weight and is expected a.m. to 4 p.m., Central time. Embassy license application. The manufacturer to remain with finished food–packaging Suites Market, 2727 Stemmons Freeway, shall describe the test specifications to material through use by consumers or Dallas, TX 75207; telephone number verify that each sublot is identical to when the substance is a component of (214) 630–5332. other sublots of the lot. a coating of a finished food–packaging 6. Denver, CO: December 15, 1999, 9 material. * * * * * a.m. to 4 p.m., Mountain time. Holiday (j) Approval of a food * * * Inn, 14707 W. Colfax Ave., Golden, CO (d) Volume of final product. Each * * * * * 80401; telephone number (303) 279– manufacturer shall identify the possible 7611. final container volumes in the biologics [FR Doc. 99–55537 Filed 10–19–99; 8:45 am] MMS published revised Indian gas license application. BILLING CODE 1505±01±D valuation regulations in the Federal * * * * * Register on August 10, 1999 (64 FR 64. Section 660.30 is amended by 43506). The revised regulations add revising paragraph (b) to read as follows: DEPARTMENT OF THE INTERIOR alternative valuation methods to existing regulations to ensure that § 660.30 Reagent Red Blood Cells. Minerals Management Service Indian lessors receive maximum * * * * * 30 CFR Parts 202 and 206 revenues from their mineral resources as (b) Source. Reagent Red Blood Cells required by the unique terms of Indian shall be prepared from human RIN 1010±AB57 leases and MMS’s trust responsibility to peripheral blood meeting the criteria of Indian lessors. The revised regulations Training Sessions on Gas Valuation for §§ 660.31 and 660.32 of this chapter, or will also improve the accuracy of Indian Leases from umbilical cord cells which shall be royalty payments at the time royalties collected and prepared according to the AGENCY: Minerals Management Service, are due. manufacturer’s biologics license Interior. If you produce gas from Indian lands, application. ACTION: Notice of training sessions. the new regulations affect you, and we 65. Section 660.33 is amended by strongly encourage you to attend one of revising the fifth sentence to read as SUMMARY: The Minerals Management these training sessions. Some of the follows: Service is offering six training sessions topics that will be covered include: VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.058 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56455 —How do you value gas in an index of Glacier Bay proper under fisheries in Glacier Bay proper to pot zone using the index-based formula? nontransferable lifetime permits; and, and ring net fishing for Tanner crab, —How do you value gas not in an index clarifying that the marine waters of longlining for halibut, and trolling for zone? Glacier Bay National Park outside of salmon. The rule describes eligibility —How do you make a dual accounting Glacier Bay proper will remain open to criteria that allow certain fishermen election? various existing commercial fisheries. with a sufficient, recent, reoccurring —What are the changes to Section 123 also directs that authorized history of participation in Glacier Bay transportation and processing commercial fisheries be managed in proper fisheries to continue fishing in allowances? accordance with a cooperatively Glacier Bay proper for their lifetimes. MMS is offering these training developed state/federal fisheries The final rule adopts October 1, 2000, sessions at no cost to oil and gas management plan. The cooperative as the deadline to apply for a lifetime industry representatives and members state/federal fisheries management plan permit. Beginning October 1, 2000, a of the public who have an interest in the is being developed independent of this lifetime permit is needed in order to fish valuation of gas produced from Indian rule and will be announced at a later in Glacier Bay proper. To qualify, lands. You must make your own travel date. fishermen must be able to document and hotel reservations for the training. DATES: This rule is effective on October that they have fished in Glacier Bay MMS will not reserve blocks of rooms. 20, 1999, with the exception of proper in one of the three authorized If you plan to attend training, please paragraphs (a)(10)(i)–(iii) which take commercial fisheries as follows: For the register for the session by calling or effect on January 1, 2000. halibut fishery, 2 years of participation sending a fax to Vicki Skinner at the ADDRESSES: Tomie Lee, Superintendent, are required in Glacier Bay proper telephone or fax numbers in the FOR Glacier Bay National Park and Preserve, during the 7-year period, 1992 through FURTHER INFORMATION CONTACT section of P.O. Box 140, Gustavus, Alaska 99826. 1998. For the salmon and Tanner crab this notice. Seating is limited, and we E-mail address is glba— need to know the number in your party. fisheries, 3 years of participation are [email protected]. required in Glacier Bay proper during Joan Killgore, FOR FURTHER INFORMATION CONTACT: the 10-year period, 1989 through 1998. Acting Associate Director for Royalty Tomie Lee, Superintendent, Glacier Bay The 7-year qualifying period for halibut Management. National Park and Preserve, P.O. Box is based, in large part, on the [FR Doc. 99–27311 Filed 10–19–99; 8:45 am] 140, Gustavus, Alaska, 99827, Phone establishment of a statistical sub-area for BILLING CODE 4310±MR±P (907) 697–2230; fax (907) 697–2654. Glacier Bay proper in 1992. Use of this SUPPLEMENTARY INFORMATION: qualifying period specific to this sub- area will assist fishermen in DEPARTMENT OF THE INTERIOR Background documenting, and NPS in identifying, a National Park Service The background section in the re- history of fishing within Glacier Bay proposed rule of August 2, 1999 (64 FR proper. A 10-year qualifying period is 36 CFR Part 13 41854), includes a comprehensive used for the Tanner crab and salmon chronology of Glacier Bay’s commercial fisheries. These qualifying periods (of 7 RIN 1024±AB99 fishing history that outlines the and 10 years, respectively) are intended circumstances and events leading to this Glacier Bay National Park, AK; to provide a better opportunity for final rule. That information is Commercial Fishing Regulations fishermen with a variable but unchanged and has continuing reoccurring history of participation in AGENCY: National Park Service (NPS), applicability. The National Park Service these fisheries, in Glacier Bay proper, to Interior. (NPS) wishes to note that numerous qualify for the lifetime access permits. ACTION: Final rule. extensions to the public comment Essentially, these criteria require period on the 1997 proposed rule fishermen to have fished in Glacier Bay SUMMARY: This final rule represents a afforded the public a prior opportunity proper for approximately 30% of the major step towards a comprehensive to comment on Section 123 (see e.g., 63 years during the 7 and 10-year base resolution of commercial fishing issues FR 68655, December 11, 1998; 64 FR periods to qualify for lifetime access to in Glacier Bay National Park. In 1573, January 11, 1999). The re- an authorized fishery. accordance with the provisions of proposed rule was published, in part, to Section 123 of the Omnibus fulfill the requirement of Section 123, as The rule also describes the Consolidated and Emergency amended by Pub. L. 106–31 (May 21, application requirements and Supplemental Appropriations Act for 1999), which directed the Secretary of procedures for fishermen to follow to FY 1999 (Section 123), as amended, the the Interior to re-publish the rule and apply for a lifetime access permit for an rule establishes special regulations for provide an opportunity for the public to authorized fishery in Glacier Bay commercial fishing in the marine waters comment for not less than 45 days. proper. The rule requires that of Glacier Bay National Park. The rule To comply with Section 123, the rule, applicants: demonstrate that they hold a implements provisions in Section 123 in part, amends the general regulatory valid state limited entry commercial by: closing specifically identified areas prohibition on commercial fishing fishing permit, and for halibut an of non-wilderness waters in Glacier Bay activities in units of the National Park International Pacific Halibut proper and all wilderness waters within System, and authorizes various existing Commission quota share, for the fishery Glacier Bay National Park to commercial commercial fisheries to continue in in Glacier Bay proper; provide a sworn fishing; limiting commercial fishing in most marine waters of Glacier Bay and notarized affidavit attesting to their Glacier Bay proper to three specific National Park subject to a cooperatively history and participation in the fishery commercial fisheries; establishing a developed state/federal fisheries within Glacier Bay proper; and, provide ‘‘grandfathering’’ process to allow management plan. other documentation that corroborates qualifying fishermen in the three The other provisions of the rule also their participation in the fishery in authorized commercial fisheries to conform to the requirements of Section Glacier Bay proper during the qualifying continue fishing in the remaining waters 123. The rule limits commercial years. The rule requires applicants to VerDate 12-OCT-99 19:23 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 56456 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations provide two types of corroborating fishermen, processors or log books) in the 1997 proposed rule and the documentation readily available from addition to their personal affidavit that accompanying Environmental the State of Alaska: permit histories; a portion of their catch was landed in Assessment (63 FR 68665, December 11, and, landing reports. The permit history Glacier Bay proper. Landing reports for 1998; 64 FR 1573, January 11, 1999). documents the length of time an halibut and Tanner crab must, at the NPS also mailed a copy of the Federal applicant has been a permit holder in a very least, be from the reporting area Register Notice of extension to persons fishery, and the landing report immediately adjacent to Glacier Bay and organizations that had previously documents the time and location of the proper to be considered. In the case of submitted comments and invited them applicant’s fishery landings. The halibut, this is Regulatory Sub-area 182; to provide additional comments in light application requirements for a lifetime in the case of Tanner crab, this is of the new legislation. The analysis of commercial fishing access permit in Statistical area 114–23. These public comment section in the re- Glacier Bay (i.e., a copy of the valid requirements are intended to address proposed rule of August 2, 1999 (64 FR permit(s) and quota share(s), affidavit, concerns regarding the difficulty of 41854), includes a comprehensive permit history and landing report) are attributing harvest to Glacier Bay proper analysis of 1,557 comments submitted less demanding than that typically from landing reports, most particularly in response to the proposed rule and the required by the State of Alaska or for the salmon troll fishery. NPS intends enactment of Section 123. That National Marine Fisheries Service (for to work closely with the Alaska information has continuing applicability halibut) for similar limited entry Commercial Fisheries Entry and supplements this analysis. programs. The rule encourages Commission, the National Marine applicants to submit other forms of Fisheries Service and other Overview of Public Comments corroborating documentation—for knowledgeable sources to identify The public comment period on the re- example, vessel logbooks or affidavits permit owners who meet the eligibility proposed rule for commercial fishing in from other fishermen or processors—to criteria defined for the authorized Glacier Bay National Park was open assist in the establishment of their commercial fisheries in Glacier Bay from August 2 to September 16, 1999, history of participation in a particular proper. and specifically sought input on the re- fishery in Glacier Bay proper. The rule also closes certain inlets and proposed eligibility criteria and NPS recognizes the limitations of areas, in the upper reaches of Glacier application requirements for lifetime landing report data based on fish tickets. Bay proper, to commercial fishing and permits for authorized fisheries in Although Alaska statute requires limits certain other areas to winter Glacier Bay proper. NPS received 96 accurate reporting of fish harvest season trolling for king salmon by written comments, in the form of information by statistical area, qualifying fishermen. There are a surface mail, faxes and electronic mail. fishermen often lump together catches number of species-specific closure dates NPS reviewed and considered all public from Glacier Bay proper and Icy Strait in Section 123, and the effective date of comments submitted on the re-proposed statistical areas, and report them as Icy paragraph (a)(10)(i)–(iii) is delayed until rule. A summary of substantive Strait landings on their fish tickets. January 1, 2000, to comply with the comments is outlined below. Moreover, no statistical reporting area statute. The rule reaffirms closure of all Thirty-seven percent of the comments exists for salmon that is specific to designated wilderness areas in Glacier received specifically stated support for Glacier Bay proper. Because of this, for Bay National Park to commercial fishing some form of commercial fishing phase the salmon fishery, NPS will consider activities. out in Glacier Bay National Park. landing reports from District 114 (all of By authorizing existing commercial Twenty-two percent specifically stated Icy Strait from Cross Sound to the Lynn fisheries to continue in park waters support for the continuation of Canal, including Glacier, Dundas and outside of Glacier Bay proper, Section commercial fishing. Taylor Bays and Excursion Inlet) as 123 and the rule permit fishing to indirect evidence of participation in the continue where more than 80% of the Of all the responses received, 59% fishery in Glacier Bay proper; this commercial harvest (reported biomass) specifically commented on the indirect evidence, however, must be has historically occurred. Additional eligibility criteria for commercial fishing supported by additional documentation harvest will continue in most of Glacier lifetime access permits. Among those, that supports applicants’ declaration of Bay proper during the life tenancy more than half (54%) supported less Glacier Bay proper salmon landings period of qualifying fishermen, stringent eligibility criteria than that (such as affidavits from crewmembers, supporting fishermen and their stated in the re-proposed rule. The other fishermen, processors or logbooks communities for many years. remaining comments on eligibility or other corroborating documentation). Approximately 18% of the park’s (46%) supported the eligibility criteria Salmon fishermen who can document marine waters are closed to commercial as a minimum standard, including 30% more than incidental use of District 114 fishing by Section 123 and this rule; who sought more stringent eligibility should submit that documentation as it these closed waters have historically criteria. Comments ranged from may bolster other evidence of their accounted for less than 10% of the total suggestions for more relaxed criteria for landings from the Glacier Bay proper commercial harvest in the park. Nothing lifetime permits, such as one year of fishery. in the rule is intended to modify or fishing during the eligibility period, to Both the halibut fishery (Regulatory restrict non-commercial fishing calls for the stronger criteria as Sub-area 184) and the Tanner crab activities otherwise authorized under proposed in 1997. fishery (Statistical areas 114–70 through federal and non-conflicting state fishing Twenty-two percent of all 114–77) have reporting areas specific to regulations, nor to affect legislatively respondents commented specifically on Glacier Bay proper. Therefore, authorized commercial fishing activities the application process for commercial applicants who wish to rely on landing within Glacier Bay National Preserve. fishing lifetime access permits. Of those, data from areas outside, but 67% supported a less stringent process immediately adjacent to, Glacier Bay Analysis of Public Comments than that stated in the re-proposed rule. proper must submit convincing Due to the enactment of Section 123 Thirty-four percent supported the corroborating documentation (such as (on October 21, 1998), NPS reopened process, as the minimum standard that affidavits from crewmembers, other and extended the comment period on the NPS should set for application VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.044 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56457 approval, 20% of which sought a more because ‘‘those programs were would protect the park’s resources. stringent process. influenced by conservation concerns.’’ After reviewing the re-proposed rule, Other commenters, however, cited General Comments NPS agrees that some clarification is conservation concerns and the Glacier necessary. Section 123 clearly states: Collectively, there were a number of Bay 1996 Vessel Management Plan ‘‘the management plan shall provide for comments and objections concerning regulations which limits the amount of commercial fishing in the marine waters various parts of the rule that, in fact, are motor vessel traffic allocated to park within Glacier Bay National Park * ** derived directly from the statute. For visitors (61 FR 27008, May 30, 1996), to and shall provide for the protection of example, a number of commenters push for a shorter, more stringent phase park values and purposes. * * *’’ Id. requested that public comment be out of commercial fishing. In the 1997 Park values and purposes are identified extended. Section 123 established a proposed rule, NPS proposed a longer in 16 U.S.C. 1, as amended, and are publication date of September 30, 1999, history of participation in each fishery and NPS has used its best efforts to to prevent what the Wilderness Society further defined by the enabling publish on that date; that necessarily now critically points out is possible: legislation and legislative history of affects the timing and length of the that people who started fishing after the Glacier Bay National Park. As a result, latest public comment period. It should 1991 rulemaking proposed to phase out the cooperatively developed also be noted that NPS has been actively all commercial fishing in seven years management plan must consider and seeking public comment for several would be eligible for grandfather status respect the NPS mission in Glacier Bay years (as summarized at 64 FR 41856– to fish in Glacier Bay. However, even in National Park as defined and directed 8, August 2, 1999). Section 123 also that proposal, NPS recognized the need by Congress. requires that a ‘‘sworn and notarized for some flexibility to ensure fairness to Section 123 also requires the affidavit be submitted,’’ not just licenses fishermen with a variable but recurring management plan to prohibit any new and fish tickets (landing receipts). history of participation in Glacier Bay or expanded fisheries, and provide for Section 123 authorized lifetime permits fisheries. Ultimately, and with public for those holding ‘‘a valid commercial the opportunity for the study of marine comment sharply divided, NPS selected resources. Therefore, a legislatively- fishing permit’’ who otherwise qualify, shorter requirements for participation in mandated component of the cooperative not boat owners or deckhands. On this the fishery in the qualifying base year point, however, NPS notes that Section periods (3 years in a 10-year base for management plan is the accommodation 123, as amended, provides $23 million salmon and Tanner crab fisheries, and 2 of scientific study. Section 123 does not to compensate ‘‘fish processors, fishing years in a 7-year base for halibut require that all federal and federally- vessel crewmembers, communities and fisheries) to meet that objective. As a approved research within the park fall others negatively affected by the result, fishermen are required to show under the plan. The final rule also restrictions on commercial fishing in they have fished in Glacier Bay proper contains a provision that directs the Glacier Bay National Park.’’ One for approximately 30% of the years superintendent to compile a list of commenter (who will certainly qualify during the 7 and 10-year base periods to existing fisheries and gear types used in for a lifetime permit) felt he was qualify. Resolving the commercial the outer waters. NPS will work with ‘‘singled-out’’ because, unlike most fishing issue in Glacier Bay has been a the State, outer water fishermen and the other limited entry permit holders, he long and contentious process (see 64 FR public to cooperatively develop this list. likes to longline in the west arm of the 41856–9, August 2, 1999). Section 123 However, should new or expanded bay above 58°50′ N latitude. Numerous now directs NPS to decide who qualifies fishing activities threaten park resources commenters stated that commercial for lifetime access and who does not; during development of the cooperative fishing was inappropriate in Glacier Bay NPS has drawn the line where it thinks plan, the superintendent may and other national parks. NPS has it is fair, recognizing that it will not implement an interim list. considered these comments, but NPS please everyone. must follow the statute. NPS also Section 123 provides both a Cooperative Development of the requirement and an opportunity for received many comments on related Management Plan subjects that were, however, outside of ongoing cooperation and collaboration the limited scope of this rule. Several commenters questioned the between the State and federal role that NPS and the State of Alaska government in the implementation of a Regulatory Flexibility Analysis will play in the cooperatively developed jointly-developed fisheries management NPS received a number of comments management plan required by Section plan. NPS will work together with the on the initial regulatory flexibility 123. The plan will guide the regulation State to provide the public with an analysis. Those comments are discussed of the existing authorized fisheries at opportunity to participate in the below in the summary of the final Glacier Bay National Park. One development of the cooperative regulatory flexibility analysis that NPS commenter stated that it was an management plan, independent of this has prepared as required by 5 U.S.C. ‘‘oversimplification’’ for NPS to state rulemaking. NPS believes that the best 604. that the State manages fisheries to long-term remedy for this jurisdictional maintain sustained yield. In response, issue is an effective State/federal Rationale for the Qualifying Period NPS notes that the Alaska State cooperative relationship that: outlines A number of commenters questioned Constitution states: ‘‘Fish * * * and all whether NPS had done enough to other replenishable resources belonging and respects individual and collective explain the method used to determine to the State shall be utilized, developed, agency roles and responsibilities; keeps the necessary number of years in a given and maintained on the sustained yield lines of communication open; base year period to qualify for lifetime principal, subject to preference among incorporates opportunities for public access to fish under the rule. One beneficial uses.’’ Id. at Article VIII, involvement in decision-making commenter felt that the NPS effort to Section 4. Another commenter processes; and, ultimately, serves to ‘‘mirror similar lengths of time that have questioned what NPS considers as park implement the letter and spirit of the been allowed in other state and federal values and purposes, and many Section 123, as amended. NPS intends limited entry programs’’ was misplaced commenters questioned how NPS to devote its energies towards this goal. VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.046 pfrm03 PsN: 20OCR1 56458 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 1996 Vessel Management Plan (VMP) convicted of serious or repeated supercedes the general regulatory Regulations offenses. NPS will also seek the State’s prohibition on commercial fishing in A comment received from the Alaska support in including provisions to this the park found at 36 CFR 2.3(d)(4). The Chapter of the Sierra Club stated that effect in the cooperatively developed authorization, however, does not commercial fishing boats are not subject management plan. NPS believes that supercede other NPS regulations or to the 1996 VMP regulations (36 CFR such action would be consistent with exempt commercial fishermen or their 13.65(b)). This assertion, however, is Congress’ direction that the plan ‘‘shall vessels from any other generally only partially correct; generally the provide for the protection of park values applicable park regulations. Commercial VMP regulations apply to commercial and purposes.’’ Section 123(a)(1). fishing activities are to be conducted fishing vessels. While commercial Boundaries and Maps and managed in concert with park purposes and values. Paragraph (i) fishing vessels were exempted from the NPS will provide detailed maps and entry permit requirements of that rule reflects the Section 123 requirement that charts depicting non-wilderness and the State of Alaska and the Secretary of by § 13.65(b)(2)(iii)(D), this rule will wilderness closures to every fisherman require such boats to obtain a National the Interior cooperatively develop a who receives a commercial fishing fisheries management plan to guide the Park Service permit to enter the bay, lifetime access permit for one of the from June 1 through August 31. The regulation of commercial fisheries in the three authorized Glacier Bay proper park that will: reflect the requirements Sierra Club comment correctly pointed commercial fisheries. Others may out that commercial fishing vessels were of Section 123, other applicable federal contact the superintendent for a map of and state laws, and international exempted from the restriction on these closures. operating within one-quarter nautical treaties; serve to protect park values and mile of a whale (§ 13.65(b)(3)(i)). This Section by Section Analysis purposes; prohibit new or expanded exemption was made due to the slow The regulations in this section commercial fisheries; and, provide speeds and deliberate courses that implement the statutory requirements of opportunity for the study of marine commercial fishing vessels follow. Section 123 of the Omnibus Emergency resources. Paragraph (ii) clarifies that However, the whale waters restrictions and Supplemental Appropriations Act waters designated as wilderness are at § 13.65(b)(iv)(D)(1) apply unless a for FY 1999 (Section 123) (Pub. L. 105– closed to commercial fishing and related motor vessel (commercial or sport) is 277), as amended by Section 501 of the commercial activities. Paragraph (iii) actually fishing (and not simply in 1999 Emergency Supplemental has been added to address the Section transit). Seasonal motor vessel closures Appropriations Act (Pub. L. 106–31.) 123 prohibition on any new or are specifically applicable (61 FR 27008, Where possible, the language used in expanded fisheries and provides a 27013, May 30, 1996). this section of the regulations mirrors mechanism for future implementation of NPS also notes that, regardless of the language used in Section 123, as that prohibition. Paragraph (iv) informs whether an commercial fishing vessel amended. the public that maps and charts of the operator possesses a commercial fishing Section 13.65(a)(1) of the regulations affected waters available from the lifetime access permit, the operator of a provides definitions for the terms superintendent. commercial fishing vessel can apply for ‘‘commercial fishing’’ and ‘‘Glacier Bay’’ Section 13.65(a)(3) of the regulation a private vessel permit to enter Glacier and ‘‘outer waters.’’ The definition for implements Section 123 requirements Bay from June 1 through August 31, or ‘‘commercial fishing’’ is the same as that the commercial fisheries in Glacier visit Glacier Bay during the balance of used for the park’s vessel regulations in Bay are limited to longlining for halibut, the year, provided they follow the § 13.65(b) of Title 36 of the Code of pot or ring net fishing for Tanner crab, regulations that apply to private motor Federal Regulations (36 CFR). The terms and trolling for salmon. These are the vessels and do not engage in ‘‘Glacier Bay’’ and ‘‘outer waters’’ are only commercial fisheries authorized to commercial activities. Lifetime used in these regulations to describe continue in Glacier Bay. Paragraph (ii) permittees are advised that the lifetime marine water areas of the park that are limits participation in the authorized permit only allows access for to be regulated differently under commercial fisheries in Glacier Bay to commercial fishing; entering the park requirements of Section 123. The individuals who have a non-transferable for other commercial purposes is definition for ‘‘Glacier Bay’’ mirrors the commercial fishing lifetime access prohibited, and entering Glacier Bay for definition for ‘‘Glacier Bay Proper’’ that permit issued by the superintendent. recreation purposes (from June 1 is provided in Section 123, and is also The requirement for this lifetime access through August 31) requires a private essentially the same as the definition permit will not go into effect until vessel permit. Commercial fishing used in 36 CFR 13.65(b)(1). The term October 1, 2000. The delayed vessels may, at any time, seek safe ‘‘outer waters’’ is used to describe all of implementation date (the re-proposed harbor in Glacier Bay National Park the marine waters of the park outside of rule would have adopted January 1, when faced with hazardous weather or Glacier Bay proper. This includes areas 2000, as the implementation date) is sea conditions, mechanical problems, or of Icy Straits, Cross Sound, and coastal intended to allow sufficient time for other exigent circumstances. areas on the Gulf of Alaska running fishermen to apply for, and receive, from Cape Spencer to Sea Otter Creek, their access permits before the permit Resource Violations beyond Cape Fairweather. requirement takes effect. Fishermen are One commenter suggested that a Section 13.65(a)(2) of the regulations strongly advised to apply well before commercial fishing lifetime access provides authorization for commercial the October 1, 2000, deadline to ensure permit holder who commits a resource fishing to continue in the non- that their application is processed and violation in the park should have his or wilderness marine waters of the park, as approved by that date. This section also her permit revoked. Although NPS specifically provided for by Section 123, makes clear that the permits are non- believes that most people who will as amended. In addition to Glacier Bay, transferable—reflecting the language qualify for the permit will respect park park waters that are affected by Section and requirements of Section 123. resources and regulations, NPS will not 123 include all of the ‘‘outer waters’’ of However, if a temporary emergency hesitate to ask a court to impose access the park outside of Glacier Bay. This transfer of a permit is approved by the restrictions on a permit holder who is authorization for commercial fishing Commercial Fisheries Entry VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.047 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56459 Commission (CFEC) due to illness or valid for the area that includes Glacier follow if the superintendent finds the disability of a temporary, unexpected Bay for each fishery for which a lifetime applicant to be ineligible. These and unforeseen nature, NPS will also access permit is sought. Licensing and procedures are similar to those in place consider issuing a temporary lifetime landing histories—two types of readily for other NPS permit programs in access permit transfer for the period available corroborating Alaska. (generally, one year or less). In response documentation—are required by this Subsection 13.65(a)(9) makes clear to public comment, paragraph (iii) has regulation. A certified printout of an that the lifetime access permits to the been added to better protect park applicant’s licensing history in a fishery Glacier Bay proper commercial fisheries resources. This paragraph also provides is available at no charge from the CFEC. are renewable for the lifetime of an a mechanism for future implementation The licensing history corroborates access permit holder, provided they of the cooperatively developed participation in the fishery during the continue to hold a valid commercial management plan. qualifying years. Landing reports, fishing permit and are otherwise eligible Section 13.65(a)(4) of this regulation documenting an applicant’s harvest to participate in the fishery under restates the Section 123 requirement activities in a specific commercial federal and State laws. NPS expects to that an applicant must possess a valid fishery by year and location, are reissue the lifetime access permits on a State limited entry commercial fishing available at no charge from the Alaska five-year cycle. This will provide an permit for the district or statistical area Department of Fish and Game (ADFG). opportunity for NPS to occasionally encompassing Glacier Bay, for each A form is required from ADFG to obtain update the list of fishermen authorized to commercial fish in Glacier Bay. NPS fishery for which a lifetime access this information. NPS is aware of the will not charge a fee for these permits. permit is being sought. Paragraph (ii) limitations of some landing data. There Access permits will not be required for outlines the specific eligibility is, for example, no separate statistical commercial fisheries authorized in the requirements that must be met to obtain reporting unit for Glacier Bay for salmon marine waters of the park outside a lifetime access permit for an trolling. Accordingly, the superintendent will consider salmon Glacier Bay. authorized fishery in Glacier Bay. An Section 13.65(a)(10), paragraphs (i)– applicant must have participated as a landing reports for District 114 as indirect evidence of participation in the (iii) describe several non-wilderness limited entry permit holder for the Glacier Bay fishery, provided that such inlets within Glacier Bay that Section minimum number of years in the reports are supported by additional 123 closed to commercial fishing. The established base years period, and in the corroborating documentation of Glacier 1999 amendments to Section 123 delay district or statistical area encompassing Bay landings. For the halibut and implementation of these non-wilderness Glacier Bay, for each authorized fishery, Tanner crab fisheries, because specific closures during the 1999 fishing season for each fishery for which a lifetime reporting areas are described for Glacier for the commercial halibut and salmon access permit is being sought. These Bay, the superintendent may consider troll fisheries. The rule, therefore, eligibility criteria have undergone a landing data from a unit or area delays the effective date of these three Regulatory Flexibility Act analysis, and immediately adjacent to Glacier Bay paragraphs until December 31, 1999, to have been determined to meet the goals when additional and convincing accommodate the provisions of the of this regulation, while seeking to corroborating documentation of Section 123 amendments. Wilderness minimize impacts to commercial landings in Glacier Bay is included. areas, however, remained closed to all fishermen and other affected small Landing reports must be for the commercial fishing under the 1999 businesses to the extent consistent with reporting area immediately adjacent to amendments, with no delay in Section 123, as amended. A 12-month Glacier Bay to be considered. implementation; these closures were put application period to obtain a lifetime Section 13.65(a)(6) establishes into effect by NPS on June 15, 1999. access permit is described; conclusion October 1, 2000, as the deadline to NPS will provide detailed maps and of the eligibility determinations by apply for a commercial fishing lifetime charts depicting these non-wilderness October 1, 2000, may be important to access permit. This section also and wilderness closures to fisherman ensure completion of the $23 million publishes the address where who receive a lifetime access permit for compensation program authorized by applications must be sent. Fishermen an authorized Glacier Bay proper Congress in the 1999 amendment to are strongly advised to apply well before commercial fishery. Paragraph (i) Section 123. Section 13.65(a)(5) outlines the October 1, 2000, deadline to ensure implements the closure of Tarr Inlet, the specific type of documentation that their application is processed and Johns Hopkins Inlet, Reid Inlet, and an applicant must provide to the approved by that date. Geike Inlet to all commercial fisheries. superintendent to obtain a lifetime Section 13.65(a)(7) clarifies that the These closures include the entirety of access permit. Section 123 requires superintendent will make a written each of these inlets, as depicted on the fishermen to provide a sworn and determination and provide a copy to the maps and charts available from the notarized personal affidavit attesting to applicant. Applicants will be afforded superintendent. Paragraph (ii) describes their history of participation as a limited an opportunity to provide additional the general closure of the west arm of entry permit holder within Glacier Bay, information, if it is required. NPS Glacier Bay to commercial fishing, with during the qualifying period, for each anticipates that it could take 45 days or the exception of trolling for king salmon fishery for which a lifetime access more to process and respond to an by authorized commercial salmon permit is being sought. NPS will application, depending on the volume fishermen during the State’s winter provide a simple affidavit form to and completeness of the applications season troll fishery (as per Section 123). applicants upon request. Section 123 received. For this reason, applicants are Paragraph (iii) describes the general also requires applicants to provide other strongly advised to apply well before closure of the east arm of Glacier Bay documentation that corroborates their the October 1, 2000, deadline, or at least north of a line drawn across the mouth history of participation in the fishery, 45 days in advance of anticipated of the arm from Point Caroline through and a copy of their current State of fishing activities in Glacier Bay if that the southern point of Garforth Island to Alaska limited entry permit (and in the date is sooner. the east shore mainland, with a similar case of halibut, an International Pacific Subsection 13.65(a)(8) describes the exception that allows authorized salmon Halibut Commission quota share) that is appeal procedures for an applicant to fishermen to troll for king salmon VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.049 pfrm03 PsN: 20OCR1 56460 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations during the State’s winter troll fishery remaining waters of Glacier Bay proper the best scientific data available for its ‘‘south of a line drawn across Muir Inlet under nontransferable lifetime permits. analysis. at the southernmost point of Adams • Clarifying that the marine waters of A few commenters questioned NPS’s Inlet.’’ Section 123(a)(4). This line is Glacier Bay National Park outside of finding that the rule is not a significant described in this subsection as 58°50′N Glacier Bay proper will remain open to regulatory action for purposes of E.O. latitude, a description more readily various existing commercial fisheries. 12866 (Regulatory Planning and understood by commercial fishermen. (2) The following is a summary of the Review) and 2 U.S.C. 1501 et seq. Drafting Information: The primary comments relating to the initial (Unfunded Mandates Reform Act). In authors of this rule are Randy King, Regulatory Flexibility Analysis and the response, NPS notes that we have Chief Ranger, Mary Beth Moss, Chief of NPS assessment and response. determined that the rule is significant Resource Management, and Chad Several commenters challenged the under E.O. 12866 but not under 2 U.S.C. Soiseth, Aquatic Biologist, Glacier Bay NPS analysis of the impact the rule 1501. The NPS estimated that the would have on small entities under the National Park and Preserve; and Donald present value of the income effects of Regulatory Flexibility Act (5 U.S.C. 601 J. Barry, Assistant Secretary of the the rule would be less than $9.2 million. et seq.). One commentator specifically Interior for Fish and Wildlife and Parks. A present value of $9.2 million is contended that NPS was incorrect in Other key contributors include Molly equivalent to $276,000 annually, certifying that the rule did not have a Ross, Special Assistant to the Assistant assuming a discount rate of 3% in significant economic impact on a Secretary for Fish and Wildlife and perpetuity, or $358,000 annually, if the substantial number of small entities, Parks; Marvin Jensen and John Hiscock full impact is absorbed over 50 years. and should therefore have conducted of the National Park Service. Paul NPS used the best scientific data the analysis required under the Hunter, National Park Service Alaska available to arrive at this estimate, and Regulatory Flexibility Act. NPS would Support Office; and Russel J. Wilson, made what it believed to be very like to point out that for the August 2, conservative assumptions in conducting Denali National Park and Preserve also 1999 re-proposed rule it did not so contributed. the analysis. As described in the certify, and that it did conduct the economic analysis, NPS based its The regulatory language of the re- Regulatory Flexibility Analysis required analysis on (1) data collected by the proposed rule has been converted to the under 5 U.S.C. 601 et seq. CFEC on harvest sizes and values, question and answer format in Another commenter asked whether location of catch, and permittee accordance with the Department of the NPS took into account the effects which participation by venue and (2) two Interior, Office of Regulatory Affairs, the rule would have on the value of studies conducted by Dr. Jeff Hartman, policy on Plain Language. No assets, (e.g., vessels, fishing gear, Alaska Department of Fish and Game. substantive changes to the proposed permits). NPS stated in its economic NPS has confidence in Dr. Hartman’s language have been made. analysis that it did not account for the analysis; it was carefully designed and Compliance with Other Laws effect of the rule on assets. NPS believes executed and formed the basis of that any asset effects will be small for Congress’s $23 million appropriation for Regulatory Flexibility Act two reasons: (1) the market for used compensation. Under the Regulatory Flexibility Act equipment is extensive and the effect of No changes were made in the Final of 1980, as amended, 5 U.S.C. 601 et fishing restrictions in one venue Rule as a result of the public comment seq., the NPS has determined that this (Glacier Bay) on market prices is detailed above. NPS notes, however, rule will have a significant impact on a minimal, and (2) there are opportunities that the eligibility criteria adopted by substantial number of small business for fishermen displaced to replace this rule (as proposed in the re-proposed significant portions of lost revenues in entities. The NPS has summarized the rule) are less stringent than the criteria other fishing venues. Further, Congress final regulatory flexibility analysis on originally proposed in the 1997 has appropriated funds to compensate the expected impact of this rule on proposed rule. NPS chose the less for estimated economic losses. Since those small business entities as follows. stringent criteria because public NPS and the State of Alaska have not comment and the initial regulatory (1) This Rule is published in yet developed the decision rules and flexibility analysis led NPS to conclude accordance with the provisions of eligibility criteria for dispensing these that the more stringent criteria would Section 123 of the Omnibus funds, the opportunity to identify effects have adversely affected the economic Consolidated and Emergency that warrant compensation still exists. well being of an unacceptably high Supplemental Appropriations Act for Several commenters argued that the number of fishermen as well as local FY 1999 (Section 123), as amended. The NPS’s analysis was flawed, and in communities. rule establishes special regulations for particular, that: the analysis did not (3) The rule will apply primarily to commercial fishing in the marine waters meet the standards of 5 U.S.C. 601 et current holders of a valid limited-entry, of Glacier Bay National Park. The rule seq.; NPS did not reveal the details of commercial fishery permit for Tanner implements provisions in Section 123 its study design; and, NPS failed to use crab, halibut, and/or salmon troll by: the best scientific data available. NPS fisheries that have fished within Glacier • Closing specifically identified areas consulted extensively with staff at the Bay proper or adjacent areas over the of non-wilderness waters in Glacier Bay Small Business Administration ten year period 1989–98. Because some proper and all wilderness waters within regarding the design of the study, and permit holders may hold permits for Glacier Bay National Park to commercial was careful to comply with the multiple fisheries and because statistical fishing. standards of 5 U.S.C. 601 et seq. reporting units for which permit holders • Limiting commercial fishing in Although NPS did not publish the State report their catch align poorly with park Glacier Bay proper to three specific of Alaska’s Commercial Fisheries Entry boundaries or have changed commercial fisheries. Commission (CFEC) data, nor the configuration over time it is extremely • Establishing a ‘‘grandfathering’’ individual calculations made therefrom, difficult to estimate the number of process to allow qualifying fishermen in it fully described the nature of these permit holders impacted by the rule the three authorized commercial calculations and published the (i.e., those displaced by, or not fisheries to continue fishing in the cumulative results. The NPS also used qualifying to continue fishing under, the VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.050 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56461 rule). Our best estimates, obtained from charge from the CFEC. The licensing discussed extensively both above and in the CFEC, indicate that 40–50 Tanner history corroborates participation in the the re-proposed rule (64 FR 41854, crabbers, 80–220 halibut fishermen, 80– fishery during the qualifying years. 41860–63, August 2, 1999). 330 hand trollers and 100–380 power Landing reports, documenting an NPS has placed a copy of the final trollers would be displaced from Glacier applicant’s harvest activities in a regulatory flexibility analysis on file in specific commercial fishery by year and Bay proper. Estimates for salmon the Administrative Record at the trollers encompass both summer and location, are available at no charge from address specified in the ADDRESSES winter fisheries openings for Statistical the Alaska Department of Fish and section. Copies are available upon Area 114, which includes Cross Sound Game (ADFG). request. and Icy Strait in addition to Glacier Bay The classes of small entities which proper. The troll fishery in the Bay will be subject to the requirement are Regulatory Planning and Review proper typically occurs during the current limited entry permit holders for winter opening and the number of the Glacier Bay commercial halibut This document is a significant rule affected entities is most likely closer to fishery who have participated as a and has been reviewed by the Office of the lower estimate for this fishery. Other permit holder in that fishery for at least Management and Budget under small entities which are likely to be two years during the period 1992–1998, Executive Order 12866. and current limited entry permit holders affected by this final rule include: vessel a. This rule will not have an annual for the Glacier Bay salmon or Tanner owners who are not permit holders, economic effect of $100 million or crew members, seafood processing crab commercial fisheries who have participated as a permit holder in that adversely affect an economic sector, firms, seafood processing laborers, lost productivity, the environment, or other tax revenues to local government fishery for at least three years during the period 1989—1998. No professional units of government. Jobs in local jurisdictions, and fishing support sector Alaska communities will be lost and a small entities in local communities (i.e., skills are necessary for preparation of the report or record. All necessary Federally funded compensation chandlerys, fishing gear and hardware program will mitigate the economic stores, fuel sales, grocery stores, boat materials are available either from impacts on individuals and the mechanics, etc.). Fewer than 40 vessel ADFG or the CFEC. communities. An economic analysis has owners who are not permit holders are (5) NPS has and will continue to been completed and is attached (See currently estimated to be affected by mitigate the significant economic Regulatory Flexibility Act Section). this final rule, although the number of impact on small entities impacted by vessels that will continue to be leased this statute by the following actions: With this rule we are establishing • This rule adopts October 1, 2000 as by qualifying permit holders and will eligibility requirements and application the effective date of the Glacier Bay continue to participate in Glacier Bay procedures for obtaining a permit for proper permit requirement, rather than proper fisheries is unknown. It is lifetime access to three commercial the re-proposed rule date of January 1, currently not possible to estimate the fisheries authorized in Glacier Bay 2000 to give applicants more time to proper. number of small entities in these other collect the required documentation and b. This rule will not create classes because many of the spatial and apply for the permit. temporal parameters of projected affects • This rule selected the less stringent inconsistencies with other agencies’ are currently not well known. eligibility criteria for lifetime permits actions. Section 123 calls for the (4) The projected reporting, record that was published in the re-proposed Secretary and the State of Alaska to keeping and other compliance rule (two years in seven, and three years cooperate in the development of a requirements are described in the rule. in ten) rather than the eligibility criteria management plan to regulate these Section 13.65(a)(5) outlines the specific that was originally proposed (six years ongoing commercial fisheries. Certain type of documentation that an applicant in ten). inlets or areas of inlets of Glacier Bay must provide to the superintendent to • NPS will administer, in a fair and proper are either closed to all obtain a lifetime access permit. Section timely manner, the mandated 23 million commercial fishing, or limited to 123 requires fishermen to provide a dollar compensation program, which trolling by qualifying fishermen for king sworn and notarized personal affidavit will recompense small entities affected salmon during the winter season. attesting to their history of participation by the phase-out of commercial fishing Section 123 confirms the statutory as a limited permit holder within in specified areas of Glacier Bay prohibition on commercial fishing Glacier Bay, during the qualifying National Park. within the Park’s designated wilderness period, for each fishery for which a Most aspects of the rule are direct areas, and authorizes compensation for lifetime access permit is being sought. requirements of Section 123. Section qualifying Dungeness crab fishermen Section 123 also requires applicants to 123 also directed the Secretary of the who had fished in designated provide other documentation that Interior to determine the eligibility wilderness waters of the Beardslee corroborates their history of criteria for the Glacier Bay fishery. The Islands and Dundas Bay. participation in the fishery, and a copy eligibility criteria adopted by this rule c. This rule will not materially affect of their current State of Alaska limited (as proposed in the re-proposed rule) is entitlements, grants, user fees, loan entry permit (and in the case of halibut, less stringent than the criteria originally programs, or the rights and obligations an International Pacific Halibut proposed in the 1997 proposed rule. of their recipients. This rule implements Commission quota share) that is valid NPS chose the less stringent criteria for the area that includes Glacier Bay for because public comment and the initial and establishes eligibility requirements each fishery for which a lifetime access regulatory flexibility analysis led NPS to and application procedures for permit is sought. Licensing and landing conclude that the more stringent criteria obtaining a permit for lifetime access to histories—two types of readily available would have adversely affected the three commercial fisheries authorized in corroborating documentation—are economic well being of an unacceptably Glacier Bay proper. required by this regulation. A certified high number of fishermen as well as d. This rule raised novel legal or printout of an applicant’s licensing local communities. The reasons for not policy issues regarding the management history in a fishery is available at no selecting alternative criteria are of fisheries in Glacier Bay National Park. VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.052 pfrm03 PsN: 20OCR1 56462 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Small Business Regulatory Enforcement Executive Order 12988. The rule does completing and reviewing the collection Fairness Act not unduly burden the judicial system. of information. Send comments This rule is not a major rule under the NPS drafted this rule in plain language regarding this burden estimate or any Congressional review provisions of the to provide clear standards and to ensure other aspect of this collection of Small Business Regulatory Enforcement that the rule is easily understood. We information, including suggestions for Fairness Act (5 U.S.C. 804(2)). This rule: consulted with the Department of the reducing the burden of these a. does not have an effect on the Interior’s Office of the Solicitor during information collection requests, to economy of $100 million or more, as the drafting process. Information Collection Officer, National demonstrated in the economic analysis; Paperwork Reduction Act Park Service, 800 North Capitol Street, b. will not cause an increase in costs Washington, DC 20001; and the Office or prices for consumers, individual This rule contains information of Management and Budget, Office of industries, Federal, State or local collection requirements subject to Office Information and Regulatory Affairs, of Management and Budget (OMB) government entities, or geographic Attention: Desk Officer for Department approval under the Paperwork regions; of the Interior (1024–0125), Washington, c. does not have significant adverse Reduction Act of 1995. The collection of DC 20503. effects on competition, employment, information contained in section investment, productivity, innovation, or 13.65(a)(5)(iii) of this rule is for issuing National Environmental Policy Act the ability of U.S.-based enterprises to a permit for lifetime access to three authorized commercial fisheries within In April 1998, NPS released a compete with foreign-based enterprises comprehensive Commercial Fishing (See Regulatory Flexibility Act Section). Glacier Bay proper based upon sufficient historical participation. The Environmental Assessment (EA) that Unfunded Mandates Reform Act information collected will be used to described and addressed the potential In accordance with the Unfunded determine who qualifies for the issuance environmental impacts of the proposed Mandates Reform Act (2 U.S.C. 1502 et of a permit for lifetime access. It is action (the 1997 proposed rule) and four seq.): necessary for someone to apply to alternatives for managing commercial a. This rule will not ‘‘significantly or obtain a permit. fishing activities in the marine waters of uniquely’’ affect small governments. A Specifically, NPS needs the following the park. On October 21, 1998 Section Small Government Agency Plan is not information from an applicant to issue 123 of the Omnibus Consolidated and required. This rule does not change the a permit for lifetime access to the Emergency Supplemental relationship between the NPS and small salmon troll fishery, Tanner crab pot Appropriations Act for FY 1999 (Section governments. and ring net fishery, and halibut 123), was passed by Congress and b. The Department has determined longline fishery authorized within signed into law. Congress passed and certifies pursuant to the Unfunded Glacier Bay proper: (1) Full name, date Section 123 toward the end of what had Mandates Reform Act that this rule will of birth, mailing address and phone already been an extended public not impose a cost of $100 million or number. (2) A sworn and notarized involvement and comment period on more in any given year on local, State personal affidavit attesting to the the 1997 proposed rule and 1998 EA. or tribal governments or private entities. applicant’s history of participation as a Congress, in passing Section 123, (See Regulatory Flexibility Act Section.) limited entry permit or license holder in clarified and limited the Secretary of the one or more of the three authorized Interior’s discretionary authority with Takings Glacier Bay fisheries during the respect to authorizing commercial In accordance with Executive Order qualifying years. (3) A copy of a current fishing in Glacier Bay National Park. 12630, the rule does not have significant State or—in the case of halibut— Section 123 required the Secretary to takings implications. No takings of International Pacific Halibut describe eligibility criteria for the personal property will occur as a result Commission commercial fishing permit lifetime access permits for Glacier Bay of this rule. Perceived takings due to job card or license that is valid for the area proper, closed certain named inlets and loss will be offset by the compensation including Glacier Bay proper. (4) wilderness waters, and clarified that the program. This rule implements and Documentation of commercial landings outer marine waters of the park should establishes eligibility requirements and within the statistical units or areas that remain open to existing fisheries under application procedures for obtaining a include Glacier Bay proper during the a cooperatively developed state/federal permit for lifetime access to three qualifying period. (5) Any available management plan. Based on the commercial fisheries authorized in corroborating information that can assist information in the EA a finding of no Glacier Bay proper. (See Regulatory in a determination of eligibility for the significant impact was determined and Flexibility Act Section.) lifetime access permits for the three no environmental impact statement will authorized fisheries within Glacier Bay be prepared. Federalism proper. In accordance with Executive Order NPS has submitted the necessary Effective Date 12612, the rule does not have significant documentation to the Office of In accordance with 5 U.S.C. (d)(3) this Federalism effects. The primary effect of Management and Budget under 44 rule is effective October 20, 1999, with this rule is to implement eligibility U.S.C. 3501 et seq., and received the exception of paragraphs (a)(10) (i)– requirements and application approval for the collection of this (iii) which take effect on January 1, procedures for obtaining a permit for information for all areas covered by this 2000. We find good cause to implement lifetime access to three commercial rule under permit number 1024–0125. this regulation to meet the requirement fisheries authorized in waters of Glacier The public reporting burden for the mandated by Congress in Pub. L. 106– Bay National Park. collection of this information is estimated to average less than two hours 31 Sec. 501(e). Civil Justice Reform per response, including the time for List of Subjects in 36 CFR Part 13 The Department has determined that reviewing instructions, searching this rule meets the applicable standards existing data sources, gathering and Alaska, National parks, Reporting and provided in Section 3(a) and 3(b)(2) of maintaining the data needed, and recordkeeping requirements. VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.054 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56463 For the reasons stated in the to commercial fishing are available from holder in Glacier Bay, during the preamble, the National Park Service the Superintendent. qualifying period, for each fishery for amends 36 CFR part 13 as follows: (3) What types of commercial fishing which a lifetime access permit is being are authorized in Glacier Bay? Three sought; PART 13ÐNATIONAL PARK SYSTEM types of commercial fishing are (iii) A copy of the applicant’s current UNITS IN ALASKA authorized in Glacier Bay non- State of Alaska limited entry permit and wilderness waters: longline fishing for in the case of halibut an International 1. The authority citation for part 13 is halibut; pot and ring fishing for Tanner Pacific Halibut Commission quota share, amended to read as follows: crab; and trolling for salmon. that is valid for the area that includes Authority: 16 U.S.C. 1, 3, 462(k), 3101 et (i) All other commercial fishing, or a Glacier Bay, for each fishery for which seq.; Sec. 13.65 also issued under 16 U.S.C. buying or a processing operation not a lifetime access permit is sought; 1a–2(h), 20, 1361, 1531, 3197; Pub. L. 105– related to an authorized fishery is (iv) Proof of the applicant’s permit 277, 112 Stat. 2681, October 21, 1998; Pub. and quota share history for the Glacier L. 106–31, 113 Stat. 57, May 21, 1999. prohibited in Glacier Bay. (ii) On October 1, 2000, each fishery Bay fishery during the qualifying 2. Section 13.65 is amended by will be limited to fishermen who qualify period; adding paragraph (a) and removing and for a non-transferable commercial (v) Documentation of commercial reserving paragraphs (b)(5) and (b)(6) to fishing lifetime access permit (see landings for the Glacier Bay fishery read as follows: paragraph (a)(4) of this section). during the qualifying periods, i.e., Commercial fishing without a permit within the statistical unit or area that § 13.65 Glacier Bay National Park and includes Glacier Bay: for halibut, Preserve. issued by the superintendent, or other than in accordance with the terms and regulatory sub-area 184; for Tanner crab, (a) Commercial fishing: conditions of the permit, is prohibited. statistical areas 114–70 through 114–77. authorizations, closures and (iii) The Superintendent shall include For salmon, the superintendent will restrictions. in a permit the terms and conditions consider landing reports from District (1) What terms do I need to know? that the superintendent deems 114; however, the superintendent may (i) Commercial fishing means necessary to protect park resources. require additional documentation that conducting fishing activities under the Violating a term or condition of the supports the applicant’s declaration of appropriate commercial fishing permits permit is prohibited. Glacier Bay salmon landings. For and licenses as required and defined by (4) Who is eligible for a Glacier Bay halibut and Tanner crab, the the State of Alaska. commercial fishing lifetime access superintendent may consider (ii) Glacier Bay means all marine permit? A Glacier Bay commercial documented commercial landings from waters within Glacier Bay National fishing lifetime access permit will be the unit or area immediately adjacent to Park, including coves and inlets, north issued by the superintendent to Glacier Bay (in Icy Strait) if additional of an imaginary line drawn from Point fishermen who have submitted documentation supports the applicant’s Gustavus to Point Carolus. documentation to the superintendent, declaration that landings occurred in (iii) Outer waters means all of the on or before October 1, 2000, which Glacier Bay. non-wilderness marine waters of the demonstrates to the satisfaction of the (vi) Any additional corroborating park located outside of Glacier Bay. superintendent that: documentation that might assist the (2) Is commercial fishing authorized (i) They possess valid State limited superintendent in a timely in the marine waters of Glacier Bay entry commercial fishing permits for the determination of eligibility for the National Park? Yes—Commercial district or statistical area encompassing access permits. fishing is authorized within the outer Glacier Bay for each fishery for which (6) Where should the documentation waters of the park and within the non- a lifetime access permit is being sought; for a lifetime access permit be sent? wilderness waters of Glacier Bay, and, Before October 1, 2000, all required subject to the provisions of this chapter. (ii) They have participated as limited information (as listed in paragraph (a)(5) (i) Commercial fishing shall be entry permit holders for the district or of this section) should be sent to: administered pursuant to A statistical area encompassing Glacier Superintendent, Attn: Access Permit cooperatively developed State/federal Bay for each fishery for which a lifetime Program, Glacier Bay National Park and park fisheries management plan, access permit is being sought. Preserve, P.O. Box 140, Gustavus, international conservation and (A) For the Glacier Bay commercial Alaska 99826. management treaties, and existing halibut fishery, the Applicant must have (7) Who determines eligibility? The federal and Non-conflicting State law. participated as a permit holder for at superintendent will make a written The management plan shall provide for least two years during the period 1992– determination of an applicant’s the protection of park values and 1998. eligibility for the lifetime access permit purposes, the prohibition on any new or (B) For the Glacier Bay salmon or based on information provided. A copy expanded fisheries, and the opportunity Tanner crab commercial fisheries, the of the determination will be mailed to to study marine resources. applicant must have participated as a the applicant. If additional information (ii) Commercial fishing or conducting permit holder for at least three years is required to make an eligibility an associated buying or processing during the period 1989–1998. determination, the applicant will be operation in wilderness waters is (5) What documentation is required to notified in writing of that need and be prohibited. apply for a commercial fishing lifetime given an opportunity to provide it. (iii) A new or expanded fishery is access permit? The required (8) Is there an appeals process if a prohibited. The Superintendent shall documentation includes: commercial fishing lifetime access compile a list of the existing fisheries (i) The applicants full name, date of permit application is denied? Yes—If an and gear types used in the outer waters birth, mailing address and phone applicant’s request for an a commercial and follow the procedures in §§ 1.5 and number; fishing lifetime access permit is denied, 1.7 of this chapter to inform the public. (ii) A notarized affidavit, sworn by the the superintendent will provide the (iv) Maps and charts showing which applicant, attesting to his or her history applicant with the reasons for the denial marine areas of Glacier Bay are closed of participation as a limited permit in writing within 15 days of the VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.055 pfrm03 PsN: 20OCR1 56464 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations decision. The applicant may appeal to ENVIRONMENTAL PROTECTION Cat- NAICS Examples of Poten- the Regional Director, Alaska Region, AGENCY egories tially Affected Entities within 180 days. The appeal must substantiate the basis of the applicant’s 40 CFR Part 180 Industry 111 Crop production disagreement with the Superintendent’s 112 Animal production 311 Food manufacturing determination. The Regional Director (or [OPP±300935; FRL±6386±5] 32532 Pesticide manufac- his representative) will meet with the turing applicant to discuss the appeal within RIN 2070±AB78 30 days of receiving the appeal. Within This listing is not intended to be 15 days of receipt of written materials Pyrithiobac Sodium Salt; Time-Limited exhaustive, but rather provides a guide and the meeting, if requested, the Pesticide Tolerance for readers regarding entities likely to be Regional Director will affirm, reverse, or affected by this action. Other types of modify the Superintendent’s AGENCY: Environmental Protection entities not listed in the table could also determination and explain the reasons Agency (EPA). be affected. The North American for the decision in writing. A copy of ACTION: Final rule. Industrial Classification System the decision will be forwarded promptly (NAICS) codes have been provided to to the applicant and will be the final SUMMARY: This regulation extends the assist you and others in determining agency action. time-limited tolerance for residues of whether or not this action might apply (9) How often will commercial fishing the herbicide pyrithiobac sodium salt to certain entities. If you have questions lifetime access permit be renewed? The (sodium 2-chloro-6-[(4,6- regarding the applicability of this action superintendent will renew lifetime dimethoxypyrimidin-2-yl)thio]benzoate) to a particular entity, consult the person access permit at 5-year intervals for the in or on cottonseed at 0.02 parts per listed under ‘‘FOR FURTHER lifetime of a permittee who continues to million (ppm). E.I. du Pont de Nemours INFORMATION CONTACT.’’ hold a valid State limited entry and Co., Inc., requested this tolerance commercial fishing permit, and for B. How Can I Get Additional under the Federal Food, Drug, and Information, Including Copies of this halibut an International Pacific Halibut Cosmetic Act, as amended by the Food Commission quota share, and is Document and Other Related Quality Protection Act of 1966. The Documents? otherwise eligible to participate in the tolerance will expire on September 30, fishery under federal and State law. 2001. 1. Electronically. You may obtain (10) What other closures and electronic copies of this document, and restrictions apply to commercial DATES: This regulation is effective certain other related documents that fishermen and commercial fishing October 20, 1999. Objections and might be available electronically, from vessels? requests for hearings, identified by the EPA Internet Home Page at http:// The following are prohibited: docket control number OPP–300935, www.epa.gov/. To access this (i) Commercial fishing in the waters of must be received by EPA on or before document, on the Home Page select Geikie, Tarr, Johns Hopkins and Reid December 20, 1999. ‘‘Laws and Regulations’’ and then look Inlets. ADDRESSES: Written objections and up the entry for this document under (ii) Commercial fishing in the waters hearing requests may be submitted by the ‘‘Federal Register--Environmental of the west arm of Glacier Bay north of mail, in person, or by courier. Please ° ′ Documents.’’ You can also go directly to 58 50 N latitude, except commercial follow the detailed instructions for each the Federal Register listings at http:// fishermen who have been authorized by method as provided in Unit VI. of the www.epa.gov/fedrgstr/. the superintendent to troll for salmon ‘‘SUPPLEMENTARY INFORMATION.’’ 2. In person. The Agency has may troll for king salmon during the To ensure proper receipt by EPA, your established an official record for this period October 1 through April 30, in objections and hearing requests must action under docket control number compliance with state commercial identify docket control number OPP– OPP–300935. The official record fishing regulations. 300935 in the subject line on the first consists of the documents specifically (iii) Commercial fishing in the east page of your response. referenced in this action, and other arm of Glacier Bay, north of an information related to this action, imaginary line running from Point FOR FURTHER INFORMATION CONTACT: By mail: James A. Tompkins, Registration including any information claimed as Caroline through the southern point of Confidential Business Information (CBI). Garforth Island and extending to the Division 7505C, Office of Pesticide Programs, Environmental Protection This official record includes the east side of Muir Inlet, except documents that are physically located in commercial fishermen who have been Agency, 401 M St., SW., Washington, DC 20460. Office location, telephone the docket, as well as the documents authorized by the superintendent to that are referenced in those documents. troll for salmon may troll for king number, and e-mail address: Crystal ° ′ Mall #2, 1921 Jefferson Davis Hwy., The public version of the official record salmon south of 58 50 N latitude during does not include any information the period October 1 through April 30, Arlington, VA, (703) 308–5697, e-mail: [email protected]. claimed as CBI. The public version of in compliance with state commercial the official record, which includes SUPPLEMENTARY INFORMATION: fishing regulations. printed, paper versions of any electronic (b) * * * I. General Information comments submitted during an (5) [Reserved] applicable comment period is available (6) [Reserved] A. Does this Action Apply to Me? for inspection in the Public Information * * * * * You may be affected by this action if and Records Integrity Branch (PIRIB), Donald J. Barry, you are an agricultural producer, food Rm. 119, Crystal Mall #2, 1921 Jefferson Assistant Secretary for Fish and Wildlife and manufacturer, or pesticide Davis Hwy., Arlington, VA, from 8:30 Parks. manufacturer. Potentially affected a.m. to 4 p.m., Monday through Friday, [FR Doc. 99–27297 Filed 10–19–99; 8:45 am] categories and entities may include, but excluding legal holidays. The PIRIB BILLING CODE 4310±70±P are not limited to: telephone number is (703) 305–5805. VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00066 Fmt 4700 Sfmt 4703 E:\FR\FM\A20OC0.057 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56465 II. Background and Statutory Findings exposure to pesticide residues. For 5. A 21-day rat dermal study with a In the Federal Register of July 14, further discussion of the regulatory dermal irritation NOAEL of 50 mg/kg/ 1999 (64 FR 37972) (FRL–6085–5), EPA requirements of section 408 and a day and a dermal irritation LOAEL of issued a notice pursuant to section 408 complete description of the risk 500 mg/kg/day based on increased of the Federal Food, Drug, and Cosmetic assessment process, see the final rule on incidence of erythema and edema, and Act (FFDCA), 21 U.S.C. 346a as Bifenthrin Pesticide Tolerances (62 FR with a systemic dermal NOAEL of 500 amended by the Food Quality Protection 62961, November 26, 1997) (FRL–5754– mg/kg/day and a systemic dermal Act of 1996 (FQPA) (Public Law 104– 7). LOAEL of 1,200 mg/kg/day based on 170) announcing the filing of a pesticide body weight gain inhibition. III. Aggregate Risk Assessment and 6. A 90-day rat neurotoxicity petition (PP 4F4391) for a tolerance by Determination of Safety screening battery with a systemic E.I. du Pont de Nemours & Co., Inc., Consistent with section 408(b)(2)(D), NOAEL of 7,000 ppm (466 mg/kg/day Barley Mill Plaza, P.O. Box 80038, EPA has reviewed the available for males and 588 mg/kg/day for Wilmington, DE 19880-0038. This scientific data and other relevant females) and a Systemic LOAEL of notice included a summary of the information in support of this action. 20,000 ppm (1,376 mg/kg/day for males petition prepared by du Pont, the EPA has sufficient data to assess the and 1,609 mg/kg/day for females), based registrant. There were no comments hazards of and to make a determination on decreased hind grip strength and received in response to the notice of on aggregate exposure, consistent with increased foot spay in males, and a filing. section 408(b)(2), for a time-limited neurotoxicity NOAEL of 20,000 ppm The petition requested that 40 CFR tolerance for residues of pyrithiobac highest dose tested (HDT). 180.487 be amended by extending the sodium on cottonseed at 0.02 ppm. 7. A 78-week dietary carcinogenicity time-limited tolerance for residues of EPA’s assessment of the dietary study in mice with a NOAEL of 1,500 the herbicide pyrithiobac sodium salt exposures and risks associated with ppm 217 mg/kg/day (males) and 319 (sodium 2-chloro-6-[(4,6- establishing the tolerance follows. mg/kg/day (females) and a LOAEL of dimethoxypyrimidin-2-yl)thio]benzoate) 5,000 ppm 745 mg/kg/day (males) and in or on cottonseed at 0.02 ppm. This A. Toxicological Profile 1,101 mg/kg/day (females) based on tolerance will expire on September 30, EPA has evaluated the available decreased body weight/gain in both 2001. toxicity data and considered its validity, sexes, treatment related increase in the In the Federal Register of October 25, completeness, and reliability as well as incidence of foci/focus of hepatocellular 1995 (60 FR 54607) (FRL–4982–8), EPA the relationship of the results of the alternation in males, and increased established a time-limited tolerance for studies to human risk. EPA has also incidence of glomerulonephropathy residues of the herbicide pyrithiobac considered available information murine in both sexes, and an increased sodium in or on cottonseed at 0.02 ppm. concerning the variability of the incidence of infarct in the kidney and The time limited tolerance expired on sensitivities of major identifiable keratopathy of the eyes. There was September 30, 1997. In the Federal subgroups of consumers, including evidence of carcinogenicity based on Register of October 22, 1997 (62 FR infants and children. The nature of the significant differences in the pair-wise 54778) (FRL–5742–5), EPA established a toxic effects caused by pyrithiobac comparisons of hepatocellular time-limited tolerance for residues of sodium are discussed in this unit. adenomas and combined adenoma/ the herbicide pyrithiobac sodium in or 1. A rat acute oral study with a LD50 carcinoma in the 150 and 1,500 dose on cottonseed at 0.02 ppm. This time- of 3,300 milligrams/kilogram (mg/kg) for groups (but not at the high dose of 5,000 limited tolerance expires on September males and a LD50 3,200 mg/kg for ppm) with the controls. The 30, 1999. females. carcinogenic effects observed are Section 408(b)(2)(A)(i) of the FFDCA 2. A 90-day rat feeding study with a discussed below. allows EPA to establish a tolerance (the no observed adverse effect level 8. A 24-month rat chronic feeding/ legal limit for a pesticide chemical (NOAEL) of 50 ppm (3.25 mg/kg/day for carcinogenicity study with a systemic residue in or on a food) only if EPA males and 4.14 mg/kg/day for females) NOAEL of 1,500 ppm (58.7 mg/kg/day determines that the tolerance is ‘‘safe.’’ and a lowest observed adverse effect for males and 278 mg/kg/day for Section 408(b)(2)(A)(ii) defines ‘‘safe’’ to level (LOAEL) of 500 ppm (31.8 mg/kg/ females) and a systemic LOAEL of 5,000 mean that ‘‘there is a reasonable day for males and 40.5 mg/kg/day for ppm (200 mg/kg/day for males and 918 certainty that no harm will result from females), based on decrease body weight mg/kg/day for females) based on aggregate exposure to the pesticide gains and increased rate of hepatic B- decreases in body weight, body weight chemical residue, including all oxidation in males. gains and food efficiency in females, anticipated dietary exposures and all 3. A 90-day mouse feeding study with increased incidence of eye lesions in other exposures for which there is a NOAEL of 500 ppm (83.1 mg/kg/day males and females, mild changes in reliable information.’’ This includes for males and 112 mg/kg/day for hematology and urinalysis in both exposure through drinking water and in females) and a LOAEL of 1,500 ppm sexes, clinical signs suggestive of residential settings, but does not include (263 mg/kg/day for males and 384 mg/ urinary tract dysfunction in males and occupational exposure. Section kg/day for females) based on increased females, increased incidence of focal 408(b)(2)(C) requires EPA to give special liver weight and an increased incidence cystic degeneration in the liver in males, consideration to exposure of infants and of hepatocellular hypertrophy in males increased rate of hepatic peroxisomal B- children to the pesticide chemical and decreased neutrophil count in oxidation in males and an increased residue in establishing a tolerance and females. incidence of inflammatory and to ‘‘ensure that there is a reasonable 4. A 3-month dog feeding study with degenerative lesions in the kidney in certainty that no harm will result to a NOAEL of 5,000 ppm (165 mg/kg/day) females. There was evidence of infants and children from aggregate and a LOAEL of 20,000 ppm (626 mg/ carcinogenicity based on a significant exposure to the pesticide chemical kg/day), based on decrease red blood dose-related increasing trend in kidney residue....’’ cell count, hemoglobin, and hematocrit tubular combined adenoma/carcinoma EPA performs a number of analyses to in females and increased liver weight in in male rats and a significant dose determine the risks from aggregate both sexes. related increasing trend in kidney VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00067 Fmt 4700 Sfmt 4703 E:\FR\FM\A20OC0.143 pfrm03 PsN: 20OCR1 56466 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations tubular bilateral and/or unilateral corresponding lower amount being Based on assumption that 100% of the adenomas in females. The carcinogenic eliminated in the feces compared to the crop is treated with pyrithiobac sodium, effects observed are discussed further males. the upper bound limit of the below. carcinogenic risk from food is calculated B. Toxicological Endpoints 9. A 1-year dog chronic feeding study in the range of 1 incidence in a billion with a NOAEL of 5,000 ppm (143 mg/ 1. Acute toxicity. EPA has concluded (1.0 x 10-9). kg/day for males and 166 mg/kg/day for that no endpoint exists to suggest any Using the NOAEL of 58.7 mg/kg/day females) and a LOAEL of 20,000 ppm evidence of significant toxicity from from the most sensitive species in the (580 mg/kg/day for males and 647 mg/ one-day or single-event exposure. rat chronic feeding study with a 100- kg/day for females) based on decreases 2. Short- and intermediate-term fold safety factor, the RfD for systemic in body weight gain and increased liver toxicity. EPA has concluded that effects is 0.58 mg/kg/day. The weight. available evidence does not indicate any theoretical maximum residue 10. A 2-generation reproduction study evidence of significant toxicity from contribution (TMRC) from the in rats with a maternal NOAEL of 1,500 short- and intermediate-term exposure. established and proposed tolerances is ppm (103 mg/kg/day) and a maternal 3. Chronic toxicity. EPA has 0.000001 mg/kg/day and utilizes less LOAEL of 7,500 ppm (508 mg/kg/day established the Reference Dose (RfD) for than 1% of the RfD for the overall U. S. ppm), based on decreased body weight/ pyrithiobac sodium at 0.587 milligrams/ population. For exposure of the most gain and food efficacy. The reproductive kilogram/day (mg/kg/day). This RfD is highly exposed subgroup in the and offspring NOAEL is 7,500 ppm (508 based on the systemic NOAEL of 58.7 population, children aged 1-6 years, the mg/kg/day) and the reproductive and mg/kg/day for males in the rat chronic TMRC is 0.000001 mg/kg/day which is offspring LOAEL is 20,000 ppm (1,551 feeding study with a 100-fold safety still less than 1% of the RfD. mg/kg/day), based on decreased pup factor to account for interspecies 2. From drinking water. Pyrithiobac body weight. extrapolation and intraspecies sodium concentration in surface water 11. A developmental toxicity study in variability. has been estimated by using the Generic rabbits with a maternal and 4. Carcinogenicity. The Health Effects Expected Environmental Concentrations developmental NOAEL of 300 mg/kg Division Carcinogenicity Peer Review (GENEEC) model. The worst case and a maternal LOAEL of 1,000 mg/kg Committee has concluded that the exposure estimate for surface water is based on deaths, decreased body weight available data provide limited evidence 7.76 parts per billion (ppb) and for gain and feed consumption, increased of the carcinogenicity of pyrithiobac ground water is 0.778 ppb. Based on the incidence of clinical signs, and an sodium in mice and rats and has estimated exposures to pyrithiobac increase in abortions and a classified pyrithiobac sodium as a sodium from drinking water, the developmental LOAEL of 1,000 mg/kg, Group C (possible human carcinogen percentage of the RfD utilized for based on decreased fetal body weight with limited evidence of carcinogenicity children (1-6) would be 0.1% of the RfD. gain. in animals) in accordance with Agency The exposure for the general U.S. 12. A developmental toxicity study in guidelines, published in the Federal population would be less than 0.1% of rats with a maternal NOAEL 200 mg/kg Register in 1986 (51 FR 33992; the RfD. and a maternal LOAEL of 600 mg/kg September 24, 1986) and recommended The worst case estimate for cancer due to increased incidence of peritoneal that for the purpose of risk risk from the estimated residues of staining. The Developmental NOAEL is characterization a low dose pyrithiobac sodium in drinking water is 600 mg/kg and the developmental extrapolation model should be applied 2.3 x 10-7. LOAEL is 1,800 mg/kg based on the to the experimental animal tumor data 3. From non-dietary exposure. There increased incidence of skeletal for quantification for human risk (Q1*). are no non-food uses of pyrithiobac variations. This decision was based on liver sodium currently registered under the 13. No evidence of gene mutation was adenomas, carcinomas and combined Federal Insecticide, Fungicide and observed in a test for induction of adenoma/carcinomas in the male mouse Rodenticide Act, as amended. No non- forward mutations at the HGPRT locus and rare kidney tubular adenomas, dietary exposures are expected for the in Chinese hamster ovary cells. No carcinomas and combined adenoma/ general population. evidence was observed for inducing carcinomas in male rats. The unit risk, 4. Cumulative exposure to substances reverse gene mutation in two Q1* (mg/kg/day)-1, of pyrithiobac with a common mechanism of toxicity. independent assays with Salmonella sodium is 1.05 x 10-3 (mg/kg/day)-1 in Section 408(b)(2)(D)(v) requires that, typhimurium with and without human equivalents based on male when considering whether to establish, mammalian metabolic activation. kidney tumors. modify, or revoke a tolerance, the Pyrithiobac sodium was negative for the Agency consider ‘‘available induction of micronuclei in the bone C. Exposures and Risks information’’ concerning the cumulative marrow cells of mice, and negative for 1. From food and feed uses. effects of a particular pesticide’s induction of unscheduled DNA Tolerances have been established (40 residues and ‘‘other substances that synthesis in rat primary hepatocytes. CFR 180.487) for the residues of have a common mechanism of toxicity.’’ Pyrithiobac sodium was positive for pyrithiobac sodium in or on the raw EPA does not have, at this time, inducing chromosome aberrations assay agricultural commodity cottonseed at available data to determine whether in human lymphocytes. 0.02 ppm until September 30, 1999. pyrithiobac sodium salt has a common 14. A rat metabolism study showed Processing studies for cotton have mechanism of toxicity with other that radio labeled pyrithiobac sodium is shown that pyrithiobac sodium does not substances or how to include this excreted in urine and feces with >90% concentrate in cottonseed processed pesticide in a cumulative risk being eliminated within 48 hours. A sex commodities. Risk assessments were assessment. Unlike other pesticides for difference was observed in the excretion conducted by EPA to assess dietary which EPA has followed a cumulative and biotransformation. Females exposures and risks from herbicide risk approach based on a common excreted a greater amount of the pyrithiobac sodium salt (sodium 2- mechanism of toxicity, pyrithiobac radiolabel in the urine than males chloro-6-[(4,6-dimethoxypyrimidin-2- sodium salt does not appear to produce following all doing regimens, with a yl)thio]benzoate) as follows: a toxic metabolite produced by other VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00068 Fmt 4700 Sfmt 4703 E:\FR\FM\A20OC0.143 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56467 substances. For the purposes of this information relating to effects from IV. Other Considerations tolerance action, therefore, EPA has not exposure to the pesticide on the A. Metabolism in Plants and Animals assumed that pyrithiobac sodium salt reproductive capability of mating has a common mechanism of toxicity animals and data on systemic toxicity. The metabolism of pyrithiobac with other substances. For information FFDCA section 408 provides that EPA sodium in plants and animals is regarding EPA’s efforts to determine shall apply an additional tenfold margin adequately understood for purposes of which chemicals have a common of safety for infants and children in the this tolerance. mechanism of toxicity and to evaluate case of threshold effects to account for B. Analytical Enforcement Methodology the cumulative effects of such prenatal and postnatal toxicity and the chemicals, see the final rule for completeness of the data base unless Adequate enforcement methodology Bifenthrin Pesticide Tolerances (62 FR EPA determines that a different margin (High Pressure Liquid Chromatography- 62961, November 26, 1997). of safety will be safe for infants and Ultra Violet (HPLC-UV) with column D. Aggregate Risks and Determination of children. Margins of safety are switching) is available to enforce the Safety for U.S. Population incorporated into EPA risk assessments tolerance expression. The method may be requested from: Calvin Furlow, 1. Acute, short- and intermediate-term either directly through use of a margin of exposure (MOE) analysis or through PIRIB, IRSD (7502C), Office of Pesticide risk. EPA has concluded that no Programs, Environmental Protection endpoint exists to suggest any evidence using uncertainty (safety) factors in calculating a dose level that poses no Agency, 401 M St., SW., Washington, of significant toxicity from acute, short- DC 20460; telephone number: (703) term or intermediate-term exposures appreciable risk to humans. EPA believes that reliable data support using 305–5229; e-mail address: from the use of pyrithiobac sodium on [email protected]. cotton. the standard uncertainty factor (usually 2. Chronic risk. Using the TMRC 100 for combined interspecies and C. Magnitude of Residues exposure assumptions described in this intraspecies variability) and not the The nature of the residue in plants is unit, EPA has concluded that aggregate additional tenfold MOE/uncertainty adequately understood for the purposes exposure to pyrithiobac sodium from factor when EPA has a complete data of this time-limited tolerance. food and water will utilize less than base under existing guidelines and 0.1% of the RfD for the U.S. population. when the severity of the effect in infants D. International Residue Limits The major identifiable subgroup with or children or the potency or unusual the highest aggregate exposure is toxic properties of a compound do not There are no Codex Alimentarius children (1-6 years), the aggregate raise concerns regarding the adequacy of Commission (Codex) Maximum Residue exposure to pyrithiobac sodium from the standard MOE/safety factor. Levels (MRLs) for pyrithiobac sodium. food and drinking water will utilize less ii. Prenatal and postnatal sensitivity. E. Rotational Crop Restrictions than 0.2% of the RfD. EPA generally has The prenatal and postnatal toxicology no concern for exposures below 100% data base for pyrithiobac sodium is No tolerances for inadvertent residues of the RfD because the RfD represents complete with respect to current of pyrithiobac sodium are required in the level at or below which daily toxicological data requirements. The rotational crops. aggregate dietary exposure over a results of these studies indicate that V. Conclusion lifetime will not pose appreciable risks infants and children are not more to human health. sensitive to exposure, based on the Therefore, the time-limited tolerance 3. Aggregate cancer risk for U.S. results of the oral rat and rabbit for residues of pyrithiobac sodium in population. Based on the upper bound developmental toxicity studies and the cottonseed at 0.02 ppm is extended potency factor (Q1*) of 1.05 x 10-3 (mg/ 2-generation reproductive toxicity study until September 30, 2001. kg/day)-1, the aggregate upper bound in rats. VI. Objections and Hearing Requests lifetime cancer risk from the use of iii. Conclusion. There is a complete Under section 408(g) of the FFDCA, as pyrithiobac sodium on cotton from toxicity data base for pyrithiobac amended by the FQPA, any person may worst case estimates of residues in food sodium and exposure data are complete -7 file an objection to any aspect of this and drinking water is 2.3 x 10 . or are estimated based on data that regulation and may also request a 4. Determination of safety. Based on reasonably accounts for potential hearing on those objections. The EPA these risk assessments, EPA concludes exposures. that there is a reasonable certainty that procedural regulations which govern the no harm will result from aggregate 2. Chronic risk. Using the exposure submission of objections and requests exposure to residues. assumptions described in this unit, EPA for hearings appear in 40 CFR part 178. has concluded that aggregate exposure Although the procedures in those E. Aggregate Risks and Determination of to pyrithiobac sodium for children and regulations require some modification to Safety for Infants and Children infants from food and drinking water reflect the amendments made to the 1. Safety factor for infants and will utilize less than 0.2% of the RfD. FFDCA by the FQPA of 1996, EPA will children— i. In general. In assessing the EPA generally has no concern for continue to use those procedures, with potential for additional sensitivity of exposures below 100% of the RfD appropriate adjustments, until the infants and children to residues of because the RfD represents the level at necessary modifications can be made. pyrithiobac sodium, EPA considered or below which daily aggregate dietary The new section 408(g) provides data from developmental toxicity exposure over a lifetime will not pose essentially the same process for persons studies in the rat and rabbit and a 2- appreciable risks to human health. to ‘‘object’’ to a regulation for an generation reproduction study in the rat. 3. Determination of safety. Based on exemption from the requirement of a The developmental toxicity studies are these risk assessments, EPA concludes tolerance issued by EPA under new designed to evaluate adverse effects on that there is a reasonable certainty that section 408(d), as was provided in the the developing organism resulting from no harm will result to infants and old FFDCA sections 408 and 409. maternal pesticide exposure gestation. children from aggregate exposure to However, the period for filing objections Reproduction studies provide residues. is now 60 days, rather than 30 days. VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00069 Fmt 4700 Sfmt 4703 E:\FR\FM\A20OC0.143 pfrm03 PsN: 20OCR1 56468 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations A. What Do I Need to Do to File an 5697, by e-mail at Budget (OMB) has exempted these types Objection or Request a Hearing? [email protected], or by mailing a of actions from review under Executive You must file your objection or request for information to Mr. Tompkins Order 12866, entitled Regulatory request a hearing on this regulation in at Registration Division (7505C), Office Planning and Review (58 FR 51735, accordance with the instructions of Pesticide Programs, Environmental October 4, 1993). This final rule does provided in this unit and in 40 CFR part Protection Agency, 401 M St., SW., not contain any information collections 178. To ensure proper receipt by EPA, Washington, DC 20460. subject to OMB approval under the If you would like to request a waiver you must identify docket control Paperwork Reduction Act (PRA), 44 of the tolerance objection fees, you must number OPP–300935 in the subject line U.S.C. 3501 et seq., or impose any mail your request for such a waiver to: on the first page of your submission. All enforceable duty or contain any James Hollins, Information Resources requests must be in writing, and must be unfunded mandate as described under and Services Division (7502C), Office of mailed or delivered to the Hearing Clerk Title II of the Unfunded Mandates Pesticide Programs, Environmental Reform Act of 1995 (UMRA) (Public on or before December 20, 1999. Protection Agency, 401 M St., SW., 1. Filing the request. Your objection Law 104–4). Nor does it require prior Washington, DC 20460. must specify the specific provisions in 3. Copies for the Docket. In addition consultation with State, local, and tribal the regulation that you object to, and the to filing an objection or hearing request government officials as specified by grounds for the objections (40 CFR with the Hearing Clerk as described in Executive Order 12875, entitled 178.25). If a hearing is requested, the Unit VI.A., you should also send a copy Enhancing the Intergovernmental objections must include a statement of of your request to the PIRIB for its Partnership (58 FR 58093, October 28, the factual issues(s) on which a hearing inclusion in the official record that is 1993) and Executive Order 13084, is requested, the requestor’s contentions described in Unit I.B.2. Mail your entitled Consultation and Coordination on such issues, and a summary of any copies, identified by docket control with Indian Tribal Governments (63 FR evidence relied upon by the objector (40 number OPP–300935, to: Public 27655, May 19, 1998), or special CFR 178.27). Information submitted in Information and Records Integrity consideration of environmental justice connection with an objection or hearing Branch, Information Resources and related issues under Executive Order request may be claimed confidential by Services Division (7502C), Office of 12898, entitled Federal Actions to marking any part or all of that Pesticide Programs, Environmental Address Environmental Justice in information as CBI. Information so Protection Agency, 401 M St., SW., Minority Populations and Low-Income marked will not be disclosed except in Washington, DC 20460. In person or by Populations (59 FR 7629, February 16, accordance with procedures set forth in courier, bring a copy to the location of 1994) or require OMB review in 40 CFR part 2. A copy of the the PIRIB described in Unit I.B.2. You accordance with Executive Order 13045, information that does not contain CBI may also send an electronic copy of entitled Protection of Children from must be submitted for inclusion in the your request via e-mail to: opp- Environmental Health Risks and Safety public record. Information not marked [email protected]. Please use an ASCII Risks (62 FR 19885, April 23, 1997). The confidential may be disclosed publicly file format and avoid the use of special Agency has determined that this action by EPA without prior notice. characters and any form of encryption. will not have a substantial direct effect Mail your written request to: Office of Copies of electronic objections and on States, on the relationship between the Hearing Clerk (1900), Environmental hearing requests will also be accepted the national government and the States, Protection Agency, 401 M St., SW., on disks in WordPerfect 6.1/8.0 file or on the distribution of power and Washington, DC 20460. You may also format or ASCII file format. Do not responsibilities among the various deliver your request to the Office of the include any CBI in your electronic copy. levels of government, as specified in Hearing Clerk in Rm. M3708, Waterside You may also submit an electronic copy Executive Order 12612, entitled Mall, 401 M St., SW., Washington, DC of your request at many Federal Federalism (52 FR 41685, October 30, 20460. The Office of the Hearing Clerk Depository Libraries. is open from 8 a.m. to 4 p.m., Monday 1987). This action directly regulates through Friday, excluding legal B. When Will the Agency Grant a growers, food processors, food handlers holidays. The telephone number for the Request for a Hearing? and food retailers, not States. This action does not alter the relationships or Office of the Hearing Clerk is (202) 260– A request for a hearing will be granted distribution of power and 4865. if the Administrator determines that the 2. Tolerance fee payment. If you file material submitted shows the following: responsibilities established by Congress an objection or request a hearing, you There is a genuine and substantial issue in the preemption provisions of the must also pay the fee prescribed by 40 of fact; there is a reasonable possibility Federal Food, Drug, and Cosmetic Act, CFR 180.33(i) or request a waiver of that that available evidence identified by the 21 U.S.C. 346a(b)(4). This action does fee pursuant to 40 CFR 180.33(m). You requestor would, if established resolve not involve any technical standards that must mail the fee to: EPA Headquarters one or more of such issues in favor of would require Agency consideration of Accounting Operations Branch, Office the requestor, taking into account voluntary consensus standards pursuant of Pesticide Programs, P.O. Box uncontested claims or facts to the to section 12(d) of the National 360277M, Pittsburgh, PA 15251. Please contrary; and resolution of the factual Technology Transfer and Advancement identify the fee submission by labeling issues(s) in the manner sought by the Act of 1995 (NTTAA), Public Law 104– it ‘‘Tolerance Petition Fees.’’ requestor would be adequate to justify 113, section 12(d) (15 U.S.C. 272 note). EPA is authorized to waive any fee the action requested (40 CFR 178.32). In addition, since tolerances and requirement ‘‘when in the judgement of exemptions that are established on the the Administrator such a waiver or VII. Regulatory Assessment basis of a petition under FFDCA section refund is equitable and not contrary to Requirements 408(d), such as the tolerance in this the purpose of this subsection.’’ For This final rule establishes a tolerance final rule, do not require the issuance of additional information regarding the under section 408(d) of the FFDCA in a proposed rule, the requirements of the waiver of these fees, you may contact response to a petition submitted to the Regulatory Flexibility Act (RFA) (5 James Tompkins by phone at (703) 305– Agency. The Office of Management and U.S.C. 601 et seq.) do not apply. VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00070 Fmt 4700 Sfmt 4703 E:\FR\FM\A20OC0.143 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56469 VIII. Submission to Congress and the ENVIRONMENTAL PROTECTION 24, 1998 revisions to the treatment Comptroller General I11The AGENCY standards for spent aluminum potliners Congressional Review Act, 5 U.S.C. 801 (63 FR 51254). et seq., as added by the Small Business 40 CFR Parts 261, 262, and 268 On May 11, 1999, the Agency Regulatory Enforcement Fairness Act of published technical amendments 1996, generally provides that before a [FRL±6458±8] correcting and clarifying certain aspects rule may take effect, the agency RIN 2050±AE05 of all of these rules (64 FR 25408). The promulgating the rule must submit a May 11th rule contained two minor rule report, which includes a copy of Land Disposal Restrictions Phase IV: typographical errors and one omission the rule, to each House of the Congress Final Rule Promulgating Treatment that we are correcting along with three and to the Comptroller General of the Standards for Metal Wastes and other errors in the original May 26, 1998 United States. EPA will submit a report Mineral Processing Wastes; Mineral LDR Phase IV final rule that have containing this rule and other required Processing Secondary Materials and recently come to our attention. information to the U.S. Senate, the U.S. Bevill Exclusion Issues; Treatment II. Corrections to the May 11, 1999 House of Representatives, and the Standards for Hazardous Soils, and Technical Amendments Comptroller General of the United Exclusion of Recycled Wood States prior to publication of this rule in Preserving Wastewaters A. Arsenic Treatment Standard in K088 the Federal Register. This rule is not a AGENCY: Environmental Protection In the September 24, 1998 (63 FR ‘‘major rule’’ as defined by 5 U.S.C. 51254) revision of the treatment 804(2). Agency (EPA). ACTION: Final rule; technical correction. standards for spent potliners from List of Subjects in 40 CFR Part 180 primary aluminum reduction (K088), SUMMARY: On May 11, 1999, the Agency the Agency inadvertently omitted the Environmental protection, published technical amendments treatment standard adopted for fluoride Administrative practice and procedure, correcting the Land Disposal wastewaters from the entry for K088 in Agricultural commodities, Pesticides Restrictions (LDR) Phase IV final rule. In the table of treatment standards in and pests, Reporting and recordkeeping today’s rule, we are correcting two § 268.40. The May 11, 1999 technical requirements. minor typographical errors and one amendments restored the fluoride Dated: October 5, 1999. omission in the May 11th rule. Also, we wastewater treatment standard. However, in doing so, EPA James Jones, are correcting three other errors in the LDR Phase IV final rule that came to our inadvertently printed an incorrect Director, Registration Division, Office of attention after the May 11th technical measurement unit for the K088 Pesticide Programs. amendments were promulgated. treatment standard for arsenic (a Therefore, 40 CFR chapter I is EFFECTIVE DATE: This rule is effective on standard which in fact required no amended as follows: October 20, 1999. correction at all). The treatment standard for the ADDRESSES: The public may obtain a nonwastewater form of arsenic in K088 PART 180±[AMENDED] copy of this technical correction at the (as revised on September 24, 1998) is RCRA information Center (RIC), located 26.1 mg/kg, which is to be measured by 1. The authority citation for part 180 at Crystal Gateway One, 1235 Jefferson the total amount of arsenic in the continues to read as follows: Davis Highway, First Floor, Arlington, treatment residue. In the May 11, 1999 Authority: 21 U.S.C. 321(q), (346a) and Virginia. rule, the treatment standard was 371. FOR FURTHER INFORMATION CONTACT: For incorrectly given as 26.1 mg/l TCLP (a general information contact the RCRA 2. In § 180.487, by revising paragraph more conventional leaching test not Hotline at (800) 424–9346 (toll free) or (a) to read as follows: using acid digestion). Today’s rule (703) 920–9810 in the Washington, DC removes the erroneous reference to ‘‘mg/ § 180.487 Pyrithiobac sodium; tolerances metropolitan area. For information on l TCLP’’ for the nonwastewater arsenic for residues. this rule contact Peggy Vyas (5302W), standard for the K088 entry in the Office of Solid Waste, 401 M Street, SW, § 268.40 table. (a) General. Time-limited tolerances Washington, DC 20460, (703) 308–5477, to expire on September 30, 2001 are e-mail address is B. Carbamate Treatment Standards established for residues of the herbicide, ‘‘[email protected]’’. pyrithiobac-sodium, sodium 2-chloro-6- In the September 4, 1998 (63 FR 172) [(4,6-dimethoxypyrimidin-2- SUPPLEMENTARY INFORMATION: revision of the treatment standards for listed hazardous wastes from carbamate yl)thio]benzoate, in or on the following I. Reasons and Basis for Today’s Action raw agricultural commodities: production, the Agency added a The Agency recently published five paragraph (i) to § 268.40, which rules all related to various aspects of the inadvertently replaced the existing final Phase IV Land Disposal paragraph (i). The May 11, 1999 Restrictions (LDR) rule. These are: the technical correction failed to properly Expira- May 12, 1997 LDR final rule (the so- Parts per tion/Rev- reinstate the old paragraph. Today’s rule Commodity million ocation called ‘‘Mini’’ Phase IV Rule, 62 FR reinserts paragraph § 268.40(i) from the Date 25998), the May 26, 1998 LDR Phase IV September 4, 1998 rule and redesignates final rule (63 FR 28556), the August 31, it as § 268.40(j). Cottonseed ...... 0.02 9/30/01 1998 administrative stay regarding certain zinc micronutrient fertilizers (63 C. Citation Within § 262.34(a)(4) * * * * * FR 46332), the September 4, 1998 Part 262.34 contains the requirements emergency revisions to the treatment for accumulating hazardous waste prior [FR Doc. 99–27392 Filed 10–19–99; 8:45 am] standards for carbamate production to treatment. In the May 11, 1999 BILLING CODE 6560±50±F wastes (63 FR 172), and the September technical correction, the Agency VerDate 12-OCT-99 19:23 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 56470 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations amended § 262.34(d)(4) to change an IV. Analysis Under Executive Order contrary to the public interest. This internal citation reference from 12866, Executive Order 12875, determination must be supported by a § 268.7(a)(4) to § 268.7(a)(5) to reflect Executive Order 12898, Executive brief statement. 5 U.S.C. 808(2). As some other regulatory changes to LDR Order 13045, Executive Order 13084, stated previously, EPA has made such a paperwork requirements that had been the Unfunded Mandates Reform Act of good cause finding, including the adopted on May 12, 1997 (62 FR 25998). 1995, the Regulatory Flexibility Act, reasons therefor, and established an However, a parallel correction was not and the Paperwork Reduction Act effective date of October 20, 1999. EPA made to § 262.34(a)(4), which also Under Executive Order 12866 (58 FR will submit a report containing this rule contains the same outdated reference to 51735, October 4, 1993), this action is and other required information to the § 268.7(a)(4). Today we are amending not a ‘‘significant regulatory action’’ and U.S. Senate, the U.S. House of § 262.34(a)(4) to refer to § 268.7(a)(5). is therefore not subject to review by the Representatives, and the Comptroller Office of Management and Budget. In General of the United States prior to III. Corrections to the May 26, 1998 addition, this action does not impose publication of the rule in the Federal LDR Phase IV Final Rule any enforceable duty, contain any Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). A. Vacated K-Code Wastes unfunded mandate, or impose any significant or unique impact on small VI. Immediate Effective Date In the LDR Phase IV final rule, the governments as described in the Agency removed K064, K065, K066, Unfunded Mandates Reform Act of 1995 EPA is making this rule effective K090, and K091 from the table of (Pub. L. 104–4). This rule also does not immediately. The rule adopts treatment standards in § 268.40. These require prior consultation with State, amendments which are purely technical five K-code wastes were vacated on local, and tribal government officials as in that they correct inadvertent printing errors, or mistakes which are clearly April 9, 1999 in Great Lakes Chemical specified by Executive Order 12875 (58 inconsistent with the Agency’s stated Co. v EPA (No. 98–1312 (D.C. Cir.)). FR 58093, October 28, 1993) or intent. Comment on such changes is However, these wastes still appear in Executive Order 13084 (63 FR 27655, May 10, 1998), or involve special unnecessary within the meaning of 5 the table of K-code hazardous wastes U.S.C. 553(b)(3)(B). For the same found in § 261.32. Today’s rule removes consideration of environmental justice related issues as required by Executive reasons, there is good cause to make the these vacated K-code wastes from the rule effective immediately pursuant to 5 list in § 261.32. Order 12898 (59 FR 7629, February 16, 1994). Because this action is not subject U.S.C. 553(d)(3). B. § 268.7(a)(3)(ii) to notice-and-comment requirements List of Subjects under the Administrative Procedure Act Also in the LDR Phase IV final rule, or any other statute, it is not subject to 40 CFR Part 261 the Agency revised paragraph the provisions of the Regulatory Environmental protection, Hazardous § 268.7(a)(3)(ii) by adding a one-time Flexibility Act (5 U.S.C. 601 et seq.). waste, Recycling, Reporting and notification for shipping hazardous soil. This rule also is not subject to Executive recordkeeping requirements. However, in doing so, the Agency Order 13045 (62 FR 19885, April 23, inadvertently replaced other language in 1997) because EPA interprets E.O. 40 CFR Part 262 that paragraph. Today’s rule reinstates 13045 as applying only to those Hazardous waste, Labeling, Manifest, the original language and redesignates it regulatory actions that are based on Reporting and recordkeeping as paragraph § 268.7(a)(3)(iii). health or safety risks, such that the requirements. analysis required under section 5–501 of C. Measuring Compliance With Soil the Order has the potential to influence 40 CFR Part 268 Standards the regulation. This rule is not subject Hazardous waste, Reporting and Lastly, the LDR Phase IV final rule to E.O. 13045 because it does not recordkeeping requirements. establish an environmental standard promulgated treatment standards for Dated: September 21, 1999. contaminated soil. The preamble states intended to mitigate health or safety risks. EPA’s compliance with these Michael Shapiro, that compliance with the 90% reduction statutes and Executive Orders for the Acting Assistant Administrator, Office of treatment standard should be measured underlying rule is discussed in the May Solid Waste and Emergency Response. using the toxicity characteristic leachate 12, 1997, the May 26, 1998, the procedure (TCLP) for metals and three For the reasons set forth in the September 4, 1998, and the September preamble, title 40, chapter I of the Code non-metals: carbon disulfide, 24, 1998 Federal Register documents. of Federal Regulations is amended as cyclohexanone, and methanol (see 63 follows: FR at 28602). Although the preamble to V. Submission to Congress and the the final rule made it clear that the General Accounting Office PART 261ÐIDENTIFICATION AND TCLP test should be used for carbon The Congressional Review Act, 5 LISTING OF HAZARDOUS WASTE disulfide, cyclohexanone, and U.S.C. 801 et seq., as added by the Small methanol, the regulatory language found Business Regulatory Enforcement Subpart AÐGeneral in § 268.49(c)(1)(A) did not. We are Fairness Act of 1996, generally provides addressing this discrepancy in today’s that before a rule may take effect, the 1. The authority citation for part 261 rule by amending the regulatory agency promulgating the rule must continues to read as follows: language to match the preamble because submit a rule report, which includes a Authority: 42 U.S.C. 6905, 6912(a), 6921, the preamble accurately represents the copy of the rule, to each House of the 6922, 6924(y), and 6938. Agency’s position. Congress and to the Comptroller General of the United States. Section 808 allows § 261.32 [Amended] the issuing agency to make a good cause 2. The table in § 261.32 is amended by finding that notice and public procedure removing the entries for K064, K065, is impracticable, unnecessary or K066, K090, and K091. VerDate 12-OCT-99 19:23 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56471 PART 262ÐSTANDARDS APPLICABLE Authority: 42 U.S.C. 6905, 6912(a), 6921, § 268.40 Applicability of treatment TO GENERATORS OF HAZARDOUS and 6924. standards. WASTE Subpart AÐGeneral * * * * * 3. The authority citation for part 262 (j) Effective September 4, 1998, the continues to read as follows: 6. Section 268.7 is amended by treatment standards for the wastes adding paragraph (a)(3)(iii) to read as Authority: 42 U.S.C. 6906, 6912, 6922– specified in 40 CFR 261.33 as EPA 6925, 6937, and 6938. follows: Hazardous Waste numbers P185, P191, § 268.7 Testing, tracking, and P192, P197, U364, U394, and U395 may Subpart CÐPre-Transport recordkeeping requirements for generators, be satisfied by either meeting the Requirements treaters, and disposal facilities. constituent concentrations presented in the table ‘‘Treatment Standards for 4. Section 262.34 is amended by (a) * * * Hazardous Wastes’’ in this section, or by revising paragraph (a)(4) to read as (3) * * * follows: treating the waste by the following (iii) If the waste changes, the technologies: combustion, as defined by § 262.34 Accumulation time. generator must send a new notice and the technology code CMBST at § 268.42 * * * * * certification to the receiving facility, Table 1 of this Part, for nonwastewaters; (a) * * * and place a copy in their files. and, biodegradation as defined by the (4) The generator complies with the Generators of hazardous debris technology code BIODG, carbon requirements for owners or operators in excluded from the definition of adsorption as defined by the technology subparts C and D in 40 CFR part 265, hazardous waste under § 261.3(f) of this code CARBN, chemical oxidation as with § 265.16, and with 40 CFR chapter are not subject to these defined by the technology code CHOXD, 268.7(a)(5). requirements. or combustion as defined as technology * * * * * * * * * * code CMBST at § 268.42 Table 1 of this PART 268ÐLAND DISPOSAL 7. Section 268.40 is amended by Part, for wastewaters. RESTRICTIONS revising paragraph (j), and the table at the end of the section is amended by 5. The authority citation for part 268 revising the entry for K088 to read as continues to read as follows: follows: TREATMENT STANDARDS FOR HAZARDOUS WASTES [Note: NA means not applicable] Regulation hazardous constituent WastewatersÐ NonwastewatersÐ Concentration Concentration in Waste description and treatment/regu- mg/kg 5 unless Waste code in mg/l 3; of latory subcategory 1 noted as ``mg/l Common name CAS 2 No. technology 4 TCLP''; or tech- code nology code ******* K088 ...... Spent potliners from primary aluminum Acenaphthene ...... 83±32±9 0.059 3.4 reduction.. Anthracene ...... 120±12±7 0.059 3.4 Benz(a)anthracene ...... 56±55±3 0.059 3.4 Benzo(a)pyrene ...... 50±32±8 0.061 3.4 Benzo(b)fluoranthene ...... 205±99±2 0.11 6.8 Benzo(k)fluoranthene ...... 207±08±9 0.11 6.8 Benzo(g,h,i)perylene ...... 191±24±2 0.0055 1.8 Chrysene ...... 218±01±9 0.059 3.4 Dibenz(a,h)anthracene ...... 53±70±3 0.055 8.2 Fluoranthene ...... 206±44±0 0.068 3.4 Indeno(1,2,3,-c,d)pyrene ...... 193±39±5 0.0055 3.4 Penanthrene ...... 85±01±8 0.059 5.6 Pyrene ...... 129±00±0 0.067 8.2 Antimony ...... 7440±36±0 1.9 1.15 mg/l TCLP. Arsenic ...... 7440±38±2 1.4 26.1 Barium ...... 7440±39±3 1.2 21 mg/l TCLP. Beryllium ...... 7440±41±7 0.82 1.22 mg/l TCLP. Cadmium ...... 7440±43±9 0.69 0.11 mg/l TCLP. Chromium (Total) ...... 7440±47±3 2.77 0.60 mg/l TCLP. Lead ...... 7439±92±1 0.69 0.75 mg/l TCLP. Mercury ...... 7439±97±6 0.15 0.025 mg/l TCLP. Nickel ...... 7440±02±0 3.98 11 mg/l TCLP. Selenium ...... 7782±49±2 0.82 5.7 mg/l TCLP. Silver ...... 7440±22±4 0.43 0.14 mg/l TCLP. Cyanide (Total)7 ...... 57±12±5 1.2 590 Cyanide (Amenable)7 ...... 57±12±5 0.86 30 Fluoride ...... 16984±48±8 35 NA. VerDate 12-OCT-99 19:23 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 56472 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Footnotes to Treatment Standard Table 268.40 1 The waste descriptions provided in this table do not replace waste descriptions in 40 CFR 261. Descriptions of Treatment/Regulatory Subcat- egories are provided, as needed, to distinguish between applicability of different standards. 2 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only. 3 Concentration standards for wastewaters are expressed in mg/l and are based on analysis of composite samples. 4 All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1ÐTechnology Codes and Descriptions of Technology-Based Standards. 5 Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR Part 264 Subpart O or Part 265 Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A fa- cility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on analysis of grab samples. ******* 7 Both Cyanides (Total) and Cyanides (Amenable) for nonwastewaters are to be analyzed using Method 9010 or 9012, found in ``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,'' EPA Publication SW±846, as incorporated by reference in 40 CFR 260.11, with a sam- ple size of 10 grams and a distillation time of one hour and 15 minutes. ******* 8. Section 268.49 is amended by New York Bight area only and to ensure BFT are available in the New York Bight revising paragraphs (c)(1) (A) and (B) to additional collection of biological area. Allowing a few days transition read as follows: assessment and monitoring data. between the closure of the coastwide DATES: Effective 1 a.m. on October 16, fishery and the opening of the New York § 268.49 Alternative LDR treatment 1999, until the date that the set-aside Bight fishery reduces concerns standards for contaminated soil. quota is determined to have been taken, regarding enforcement of regulations * * * * * which will be published in the Federal applicable to that area. The New York (c) * * * Register. Bight fishery will open effective 1 a.m., (1) * * * FOR FURTHER INFORMATION CONTACT: (A) For non-metals except carbon Saturday, October 16, 1999, until the Sarah McLaughlin or Pat Scida, 978– disulfide, cyclohexanone, and date that the set-aside quota of 10 mt is 281–9260. methanol, treatment must achieve 90 determined to have been taken, which SUPPLEMENTARY INFORMATION: percent reduction in total constituent will be published in the Federal Regulations implemented under the concentrations, except as provided by Register. authority of the Atlantic Tunas paragraph (c)(1)(C) of this section. For vessels permitted in the General (B) For metals and carbon disulfide, Convention Act (16 U.S.C. 971 et seq.) category: Upon the effective date of the cyclohexanone, and methanol, and the Magnuson-Stevens Fishery New York Bight opening, retaining or treatment must achieve 90 percent Conservation and Management Act (16 landing large medium or giant BFT is reduction in constituent concentrations U.S.C. 1801 et seq.) governing the authorized only within the set-aside as measured in leachate from the treated harvest of BFT by persons and vessels area, until the set-aside quota for that media (tested according to the TCLP) or subject to U.S. jurisdiction are found at area has been harvested. BFT harvested 90 percent reduction in total constituent 50 CFR part 635. Section 635.27 from waters outside the defined set- concentrations (when a metal removal subdivides the U.S. BFT landings quota aside area may not be brought into the treatment technology is used), except as recommended by the International set-aside area. General category permit provided by paragraph (c)(1)(C)of this Commission for the Conservation of holders may tag and release BFT in all section. Atlantic Tunas among the various areas while the General category is domestic fishing categories. The General * * * * * * closed, subject to the requirements of category landings quota, including time- the tag-and-release program at § 635.26. [FR Doc. 99–27138 Filed 10–19–99; 8:45 am] period subquotas and the New York For vessels permitted in the Charter/ BILLING CODE 6560±50±P Bight set-aside, are specified annually as Headboat category: When participating required under § 635.27(a)(1). The 1999 in the General category New York Bight General category quota and effort fishery, i.e., fishing for large medium DEPARTMENT OF COMMERCE control specifications were issued June and giant BFT intended for sale, 1, 1999 (64 FR 29806, June 3, 1999). National Oceanic and Atmospheric Charter/Headboat category vessels are Administration Opening of the New York Bight fishery subject to the same rules as General The New York Bight set-aside area is category vessels. Charter/Headboat 50 CFR Part 635 defined as the waters south and west of category vessels may continue to fish in [I.D. 100899B] a straight line originating at a point on all areas under the Angling category the southern shore of Long Island at regulations while the Angling category Atlantic Highly Migratory Species 72°27’ W. long. (Shinnecock Inlet) and is open. Vessels permitted in the Fisheries; Atlantic Bluefin Tuna running SSE 150° true, and north of Charter/Headboat category that are still ° eligible for the Angling category trophy AGENCY: National Marine Fisheries 38 47’ N. lat. (Delaware Bay). Under fish allowance under § 635.23(c)(1) or Service (NMFS), National Oceanic and § 635.27(a)(1)(iii), NMFS may make (2) may land one large medium or giant Atmospheric Administration (NOAA), available all or part of the 10 mt BFT prior to May 31, 2000. Trophy BFT Commerce. landings quota set aside for the New may not be sold. ACTION: Opening of General category York Bight area when the coastwide New York Bight fishery. General category fishery has been closed The announcement of the New York in any quota period. Previously, NMFS Bight fishery closure date will be filed SUMMARY: NMFS opens the Atlantic closed the coastwide General category with the Office of the Federal Register, Bluefin Tuna (BFT) General category fishery on October 3, 1999. At that time, and further communicated through the New York Bight fishery. This action is NMFS announced that it would open Highly Migratory Species (HMS) Fax being taken to provide for General the New York Bight fishery when it is Network, the Atlantic Tunas category fishing opportunities in the determined that large medium and giant Information Line, NOAA weather radio, VerDate 12-OCT-99 19:23 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56473 and Coast Guard Notice to Mariners. Stevens Fishery Conservation and DEPARTMENT OF COMMERCE Although notification of the closure will Management Act. Regulations governing be provided as far in advance as fishing by U.S. vessels in accordance National Oceanic and Atmospheric possible, fishermen are encouraged to with the FMP appear at subpart H of 50 Administration call the Atlantic Tunas Information Line CFR part 600 and 50 CFR part 679. to check the status of the fishery before 50 CFR Part 679 The Final 1999 Harvest Specifications leaving for a fishing trip. The phone of Groundfish for the GOA (64 FR [Docket No. 990304063±9063±01; I.D. numbers for the Atlantic Tunas 101599E] Information Line are (978) 281-9305 and 12094, March 11, 1999) established the (888) USA-TUNA. 1999 Pacific halibut PSC limit for Fisheries of the Exclusive Economic vessels using trawl gear at 2,000 metric Zone Off Alaska; Pacific Cod Fishery Classification tons (mt). The Administrator, Alaska by Vessels Using Trawl Gear in Bering This action is taken under Region, has determined, in accordance Sea and Aleutian Islands Management § 635.27(a)(1) and is exempt from with § 679.21(d)(7)(i), that vessels Area review under E.O. 12866. engaged in directed fishing for AGENCY: National Marine Fisheries groundfish with trawl gear in the GOA Authority: 16 U.S.C. 971 et seq. and 1801 Service (NMFS), National Oceanic and et seq. have caught the 1999 Pacific halibut Atmospheric Administration (NOAA), PSC limit. Therefore, NMFS is closing Dated: October 14, 1999. Commerce. the directed fishery for groundfish by Bruce C. Morehead, ACTION: Closure. vessels using trawl gear in the GOA, Acting Director, Office of Sustainable except for directed fishing for pollock SUMMARY: Fisheries, National Marine Fisheries Service. NMFS is closing directed by vessels using pelagic trawl gear in fishing for Pacific cod by vessels using [FR Doc. 99–27304 Filed 10–14–99; 4:59 pm] those portions of the GOA that remain trawl gear in the Bering Sea and BILLING CODE 3510±22±F open to directed fishing for pollock. Aleutian Islands management area Maximum retainable bycatch amounts (BSAI). This action is necessary to DEPARTMENT OF COMMERCE may be found in the regulations at prevent exceeding the 1999 halibut bycatch mortality allowance specified § 679.20(e) and (f). National Oceanic and Atmospheric for the trawl Pacific cod fishery Administration Classification category. DATES: Effective 1200 hrs, Alaska local 50 CFR Part 679 This action responds to the best time (A.l.t.), October 18, 1999, until available information recently obtained 2400 hrs, A.l.t., December 31, 1999. [Docket No. 990304062±9062±01; I.D. from the fishery. It must be 101599D] FOR FURTHER INFORMATION CONTACT: implemented immediately to prevent Andrew Smoker, 907–586-7228. exceeding the 1999 trawl Pacific halibut Fisheries of the Economic Exclusive SUPPLEMENTARY INFORMATION: NMFS Zone Off Alaska; Trawl Gear in the Gulf PSC limit. Providing prior notice and an manages the groundfish fishery in the of Alaska opportunity for public comment on this BSAI according to the Fishery action is impracticable and contrary to AGENCY: National Marine Fisheries Management Plan for the Groundfish the public interest. The fleet will soon Fishery of the Bering Sea and Aleutian Service (NMFS), National Oceanic and take the 1999 trawl Pacific halibut PSC Atmospheric Administration (NOAA), Islands Area (FMP) prepared by the limit in the GOA. Further delay would Commerce. North Pacific Fishery Management only result in the 1999 trawl Pacific Council under authority of the ACTION: Closure. halibut PSC limit being exceeded. Magnuson-Stevens Fishery SUMMARY: NMFS is closing directed NMFS finds for good cause that the Conservation and Management Act. fishing for groundfish by vessels using implementation of this action cannot be Regulations governing fishing by U.S. trawl gear in the Gulf of Alaska (GOA), delayed for 30 days. Accordingly, under vessels in accordance with the FMP except for directed fishing for pollock U.S.C. 553(d), a delay in the effective appear at Subpart H of 50 CFR part 600 by vessels using pelagic trawl gear in date is hereby waived. and 50 CFR part 679. The Final 1999 Harvest Specifications those portions of the GOA open to This action is required by 50 CFR of Groundfish (64 FR 12103, March 11, directed fishing for pollock. This action 679.21 and is exempt from review under 1999) established the halibut bycatch is necessary because the 1999 Pacific E.O. 12866. halibut prohibited species catch (PSC) mortality allowance specified for the limit for trawl gear in the GOA has been Authority: 16 U.S.C. 1801 et seq. BSAI trawl Pacific cod fishery, which is caught. Dated: October 15, 1999. defined at § 679.21(e)(3)(iv)(E), as 1,473 metric tons. DATES: Effective 1200 hrs, Alaska local Bruce C. Morehead, In accordance with § 679.21(e)(7)(v), time (A.l.t.), October 16, 1999, until Acting Director, Office of Sustainable the Administrator, Alaska Region, 1200 hrs, A.l.t., December 31, 1999. Fisheries, National Marine Fisheries Service. NMFS (Regional Administrator), has FOR FURTHER INFORMATION CONTACT: [FR Doc. 99–27382 Filed 10–15–99; 3:23 pm] determined that the 1999 halibut Mary Furuness, 907–586–7228. BILLING CODE 3510±22±F bycatch mortality allowance specified SUPPLEMENTARY INFORMATION: NMFS for the trawl Pacific cod fishery in the manages the groundfish fishery in the BSAI has been caught. Consequently, GOA exclusive economic zone the Regional Administrator is closing according to the Fishery Management directed fishing for Pacific cod by Plan for Groundfish of the Gulf of vessels using trawl gear in the BSAI. Alaska (FMP) prepared by the North Maximum retainable bycatch amounts Pacific Fishery Management Council may be found in the regulations at under authority of the Magnuson- § 679.20(e) and (f). VerDate 12-OCT-99 19:23 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 56474 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations This action responds to the best SUPPLEMENTARY INFORMATION: NMFS DEPARTMENT OF COMMERCE available information recently obtained manages the groundfish fishery in the National Oceanic and Atmospheric from the fishery. It must be BSAI according to the Fishery Administration implemented immediately to prevent Management Plan for the Groundfish exceeding the 1999 halibut bycatch Fishery of the Bering Sea and Aleutian 50 CFR Part 679 mortality allowance specified for the Islands Area (FMP) prepared by the [Docket No. 990304063±9063±01; I.D. trawl Pacific cod fishery category. North Pacific Fishery Management 101299E] Providing prior notice and an Council under authority of the opportunity for public comment on this Magnuson-Stevens Fishery Fisheries of the Exclusive Economic action is impracticable and contrary to Conservation and Management Act. Zone Off Alaska; Reallocation of the public interest. The fleet will soon Regulations governing fishing by U.S. Pollock take the allowance. Further delay would vessels in accordance with the FMP AGENCY: National Marine Fisheries only result in the 1999 halibut bycatch appear at subpart H of 50 CFR part 600 Service (NMFS), National Oceanic and mortality allowance for the trawl Pacific and 50 CFR part 679. Atmospheric Administration (NOAA), cod fishery category being exceeded. The Final 1999 Harvest Specifications Commerce. NMFS finds for good cause that the of Groundfish established the halibut ACTION: Reallocation. implementation of this action cannot be bycatch mortality allowance specified delayed for 30 days. Accordingly, under for the BSAI trawl yellowfin sole SUMMARY: NMFS is reallocating U.S.C. 553(d), a delay in the effective fishery, which is defined at projected unused amounts of Bering Sea date is hereby waived. § 679.21(e)(3)(iv)(B)(1), as 955 metric subarea (BS) pollock from the incidental Classification tons (64 FR 12103, March 11, 1999). catch account to the directed fisheries. In accordance with § 679.21(e)(7)(v), This action is necessary to allow the This action is required by 50 CFR the Administrator, Alaska Region, 1999 total allowable catch (TAC) of 679.21 and is exempt from review under NMFS (Regional Administrator), has pollock to be harvested. E.O. 12866. determined that the 1999 halibut DATES: Effective October 15, 1999. Authority: 16 U.S.C. 1801 et seq. bycatch mortality allowance specified FOR FURTHER INFORMATION CONTACT: Dated: October 15, 1999. for the trawl yellowfin sole fishery in Andrew Smoker, 907–586-7228. Bruce C. Morehead, the BSAI has been caught. SUPPLEMENTARY INFORMATION: NMFS Consequently, the Regional Acting Director, Office of Sustainable manages the groundfish fishery in the Fisheries, National Marine Fisheries Service. Administrator is closing directed fishing Bering Sea and Aleutian Islands for yellowfin sole by vessels using trawl [FR Doc. 99–27381 Filed 10–15–99; 3:22 pm] management area (BSAI) exclusive gear in the BSAI. economic zone according to the Fishery BILLING CODE 3510±22±F Maximum retainable bycatch amounts Management Plan for the Groundfish may be found in the regulations at Fishery of the Bering Sea and Aleutian DEPARTMENT OF COMMERCE § 679.20(e) and (f). Islands Area (FMP) prepared by the Classification North Pacific Fishery Management National Oceanic and Atmospheric Council under authority of the Administration This action responds to the best Magnuson-Stevens Fishery available information recently obtained Conservation and Management Act. 50 CFR Part 679 from the fishery. It must be Regulations governing fishing by U.S. [Docket No. 990304063±9063±01; I.D. implemented immediately to prevent vessels in accordance with the FMP 101599C] exceeding the 1999 halibut bycatch appear at subpart H of 50 CFR part 600 mortality allowance specified for the and 50 CFR part 679. Fisheries of the Exclusive Economic trawl yellowfin sole fishery category. A In accordance with section 206(b) of Zone Off Alaska; Yellowfin Sole by delay in the effective date is the American Fisheries Act (AFA), Vessels Using Trawl Gear in the Bering impracticable and contrary to the public NMFS specified a pollock incidental Sea and Aleutian Islands interest. The fleet will soon take the catch allowance equal to 6 percent of allowance. Further delay would only the pollock total allowable catch after AGENCY: National Marine Fisheries result in the 1999 halibut bycatch subtraction of the 10 percent Service (NMFS), National Oceanic and mortality allowance for the trawl Community Development Quota reserve Atmospheric Administration (NOAA), yellowfin sole fishery category being in the Final 1999 Harvest Specifications Commerce. exceeded. NMFS finds for good cause for Groundfish for the BSAI (64 FR ACTION: Closure. that the implementation of this action 12103, March 11, 1999). can not be delayed for 30 days. As of October 2, 1999, the SUMMARY: NMFS is closing directed Accordingly, under 5 U.S.C. 553(d), a Administrator, Alaska Region, NMFS fishing for yellowfin sole by vessels delay in the effective date is hereby (Regional Administrator), has using trawl gear in the Bering Sea and waived. determined that approximately 5,000 Aleutian Islands management area This action is required by § 679.20 metric tons (mt) of pollock remain in the (BSAI). This action is necessary to and is exempt from review under E.O. incidental catch account. Based on prevent exceeding the 1999 halibut 12866. projected harvest rates of other bycatch mortality allowance specified Authority: 16 U.S.C. 1801 et seq. groundfish species and the expected for the trawl yellowfin sole fishery bycatch of pollock in those fisheries, the category. Dated: October 15, 1999 Regional Administrator has determined DATES: Effective 1200 hrs, Alaska local Bruce C. Morehead, that 2,000 mt of pollock specified to the time (A.l.t.), October 15, 1999, until Acting Director, Office of Sustainable incidental catch account will not be 2400 hrs, A.l.t., December 31, 1999. Fisheries, National Marine Fisheries Service. necessary as incidental catch. Therefore, FOR FURTHER INFORMATION CONTACT: [FR Doc. 99–27380 Filed 10–15–99; 3:22 pm] NMFS is apportioning the projected Mary Furuness, 907–586-7228. BILLING CODE 3510±22±F unused amount, 2,000 mt, of pollock VerDate 12-OCT-99 09:15 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 E:\FR\FM\A20OC0.105 pfrm03 PsN: 20OCR1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56475 from the incidental catch account to the Dated: October 14, 1999. reallocation (64 FR 52472, September directed fishing allowances established Bruce C. Morehead, 29, 1999) established the 1999 TAC of at section 206(b). This transfer will Acting Director, Office of Sustainable Pacific cod allocated to vessels using increase the allocation to catcher vessels Fisheries, National Marine Fisheries Service. hook-and-line and pot gear in the BSAI harvesting pollock for processing by the [FR Doc. 99–27379 Filed 10–15–99; 3:24 pm] as 91,300 metric tons (mt). See inshore component by 1,000 mt, to BILLING CODE 3510±22±F § 679.20(c)(3)(iii) and catcher/processors and catcher vessels § 679.20(a)(7)(i)(A). harvesting pollock for processing by In accordance with § 679.20(d)(1)(i), catcher processors in the offshore DEPARTMENT OF COMMERCE the Administrator, Alaska Region, component by 800 mt, and to catcher NMFS (Regional Administrator), has National Oceanic and Atmospheric determined that the 1999 TAC of Pacific vessels harvesting pollock for Administration processing by motherships in the cod allocated to vessels using hook-and- line and pot gear in the BSAI will be offshore component by 200 mt. Pursuant 50 CFR Part 679 reached. Therefore, the Regional to section 210(c) of the AFA, no less [Docket No. 990304063±9063±01; I.D. Administrator is establishing a directed than 8.5 percent of the 800 mt allocated 101599F] fishing allowance of 91,200 mt, and is to catcher processors in the offshore setting aside the remaining 100 mt as component, 68 mt, will be available for Fisheries of the Exclusive Economic bycatch to support other anticipated harvest only by eligible catcher vessels Zone Off Alaska; Pacific Cod by groundfish fisheries. In accordance with delivering to listed catcher processors. Vessels Using Hook-and-line and Pot § 679.20(d)(1)(iii), the Regional Regulations in the emergency interim Gear in the Bering Sea and Aleutian Administrator finds that this directed rule establishing Steller sea lion Islands fishing allowance will soon be reached. protection measures for the pollock AGENCY: National Marine Fisheries Consequently, NMFS is closing directed fisheries off Alaska allow for catch to Service (NMFS), National Oceanic and fishing for Pacific cod for vessels using occur within a season so that pollock Atmospheric Administration (NOAA), hook-and-line and pot gear in the BSAI. removals from all sectors do not exceed Commerce. Maximum retainable bycatch amounts may be found in the regulations at 30 percent of the annual TAC (64 FR ACTION: Closure. 3437, January 22, 1999). See § 679.20(e) and (f). § 679.20(a)(5)(i)(C). Thirty percent of the SUMMARY: NMFS is closing directed Classification annual pollock TAC is equal to 297,600 fishing for Pacific cod by vessels using This action responds to the best mt. With this apportionment the C hook-and-line and pot gear in the Bering Sea and Aleutian Islands management available information recently obtained season catch for the three combined from the fishery. It must be directed fisheries and the CDQ fishery area (BSAI). This action is necessary to prevent exceeding the 1999 total implemented immediately in order to will be 265,000 mt thereby not violating prevent overharvesting the 1999 TAC of the 30 percent restriction. allowable catch (TAC) of Pacific cod allocated for vessels using hook-and- Pacific cod allocated to vessels using Classification line and pot gear in this area. hook-and-line and pot gear in the BSAI. A delay in the effective date is DATES: Effective 1200 hrs, Alaska local This action responds to the best impracticable and contrary to the public time (A.l.t.), October 19, 1999, until available information recently obtained interest. The Pacific cod directed fishing 2400 hrs, A.l.t., December 31, 1999. from the fishery. It must be allowance established for vessels using implemented immediately in order to FOR FURTHER INFORMATION CONTACT: hook-and-line and pot gear will soon be allow full utilization of the pollock Mary Furuness, 907–586-7228. reached. Further delay would only TAC. A delay in the effective date is SUPPLEMENTARY INFORMATION: NMFS result in overharvest. NMFS finds for impracticable and contrary to the public manages the groundfish fishery in the good cause that the implementation of interest. Further delay would only BSAI according to the Fishery this action can not be delayed for 30 disrupt the AFA and FMP’s objective of Management Plan for the Groundfish days. Accordingly, under 5 U.S.C. providing pollock for harvest in directed Fishery of the Bering Sea and Aleutian 553(d), a delay in the effective date is Islands Area (FMP) prepared by the fisheries. NMFS finds for good cause hereby waived. North Pacific Fishery Management that the implementation of this action This action is required by § 679.20 Council under authority of the cannot be delayed for 30 days. and is exempt from review under E.O. Magnuson-Stevens Fishery 12866. Accordingly, under 5 U.S.C. 553(d), a Conservation and Management Act. Authority: 16 U.S.C. 1801 et seq. delay in the effective date is hereby Regulations governing fishing by U.S. waived. vessels in accordance with the FMP Dated: October 15, 1999. This action is taken under 50 CFR appear at subpart H of 50 CFR part 600 Bruce C. Morehead, 679.20, and is exempt from OMB review and 50 CFR part 679. Acting Director, Office of Sustainable under E.O. 12866. The Final 1999 Harvest Specifications Fisheries, National Marine Fisheries Service. of Groundfish for the BSAI (64 FR [FR Doc. 99–27378 Filed 10–15–99; 3:23 pm] Authority: 16 U.S.C. 1801 et seq. 12103, March 11, 1999), and subsequent BILLING CODE 3510±22±F VerDate 12-OCT-99 19:23 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00077 Fmt 4700 Sfmt 4700 E:\FR\FM\20OCR1.XXX pfrm08 PsN: 20OCR1 56476 Proposed Rules Federal Register Vol. 64, No. 202 Wednesday, October 20, 1999 This section of the FEDERAL REGISTER Washington, DC 20012–7082, telephone: based and risk-informed consensus contains notices to the public of the proposed (202) 634–3273. standard for fire protection for nuclear issuance of rules and regulations. The FOR FURTHER INFORMATION CONTACT: power plants. The NRC staff proposed purpose of these notices is to give interested that if the standard were successfully persons an opportunity to participate in the Daniele Oudinot, Division of Systems rule making prior to the adoption of the final Safety and Analysis, Office of Nuclear developed, the NRC could adopt it in a rules. Reactor Regulation, U.S. Nuclear future rulemaking as an alternate way of Regulatory Commission, Washington, meeting NRC fire protection DC 20555–0001,Telephone: (301) 415– requirements specified in 10 CFR 50.48 NUCLEAR REGULATORY 3731, e-mail [email protected]. and Appendix R to 10 CFR part 50. The COMMISSION SUPPLEMENTARY INFORMATION: On June 6, Commission approved the NRC staff’s 1995 (60 FR 29784), the NRC published proposal in a staff requirements 10 CFR Part 50 a notice of receipt of a petition for memorandum on SECY–99–058 dated rulemaking filed by NEI. The petitioner June 30, 1998. [Docket No. PRM±50±61] requested that the NRC revise 10 CFR NEI reiterated its approval and 50.48 and add an Appendix S to 10 CFR support for the development of the Nuclear Energy Institute; Withdrawal of part 50. In a letter dated February 2, Petition for Rulemaking NFPA standard instead of the proposed 1995, to John C. Hoyle, then-Acting Appendix S in a letter of May 5, 1998, Secretary of the NRC, William H. Rasin, AGENCY: Nuclear Regulatory from Mr. Beedle to the former NRC then-president of NEI, submitted a Commission. Chairman Shirley Jackson. In that letter, Petition for Rulemaking (PRM–50–61). Mr. Beedle stated: ‘‘The industry sees no ACTION: Withdrawal of petition for In the petition, NEI requested that the rulemaking. NRC amend 10 CFR 50.48 and add an safety benefit in replacing 10 CFR 50.48 Appendix S to 10 CFR part 50 providing and Appendix R with a new fire SUMMARY: The Nuclear Regulatory for an alternative to the current protection rule * * *. It is essential that Commission (NRC) has determined that regulation in Appendix R to 10 CFR part the industry participate extensively in a petition for rulemaking submitted by 50, ‘‘Fire Protection Program for Nuclear the development and review of any the Nuclear Energy Institute (NEI) Power Facilities Operating Prior to guidance to ensure that licensees and (PRM–50–61), in which the petitioner January 1, 1979.’’ In its petition, NEI NRC staff have a common requested that the NRC amend its fire stated that the rulemaking would make understanding * * *. The NRC staff protection regulations, has effectively the fire protection regulations less should continue to support, as does been withdrawn by NEI. In subsequent prescriptive and more performance industry, the National Fire Protection correspondence with the NRC, the oriented and risk based. Association (NFPA) process to develop petitioner expressed a change of In a letter dated December 11, 1997, NFPA 805 * * *. The fire protection position that obviated the need for a from Ralph Beedle, Senior Vice rulemaking should be canceled rather proposed rulemaking requested by the President and Chief Nuclear Officer, than deferred.’’ petition. Specifically, the petitioner NEI, to L. Joseph Callan, formerly NRC requested that the NRC cancel the The NRC sent a letter to the petitioner Executive Director for Operations, Mr. on August 20, 1999, stating that, on the proposed fire protection rulemaking Beedle presented the results of a survey instead of deferring it. As an alternative basis of NEI’s letters of December 11, of all chief nuclear officers of operating 1997, and May 5, 1998, the NRC to the rulemaking requested in the reactors concerning the fire protection concluded that NEI has, in effect, petition, the NRC, in cooperation with rulemaking. As expressed in that withdrawn its petition for rulemaking the National Fire Protection Association survey, industry’s position was that a regarding nuclear power plant fire (NFPA) and stakeholders, is pursuing new fire protection rule was neither protection. The NRC also stated that, the development of a risk-informed, desired nor considered necessary to performance-based consensus standard ensure or improve safety. In his letter, unless NEI disagreed with this for fire protection at nuclear power Mr. Beedle acknowledged that this conclusion and responded in writing plants. If the consensus standard is represented, on the part of the industry, within 14 days of the August 20, 1999, successfully developed, the NRC may a change of position from that letter, the NRC would publish a notice adopt it in a future rulemaking as an previously communicated in NEI’s of withdrawal of the petition in the alternative method of meeting the NRC petition for rulemaking of February 2, Federal Register. NEI did not respond to fire protection requirements. 1995. NRC’s August 20, 1999 letter. Therefore, Accordingly, the NRC is not taking any On March 26, 1998, the NRC staff NRC deems the NEI petition of February further action on the petition since it submitted SECY–98–058, ‘‘Development 2, 1995 (PRM–50–61) to be withdrawn. has, in effect, been withdrawn by the of a Risk-Informed, Performance-Based Dated at Rockville, Maryland, this 14th day petitioner. Regulation for Fire Protection at Nuclear of October, 1999. ADDRESSES: Copies of the petition for Power Plants,’’ to the Commission. In For the Nuclear Regulatory Commission. rulemaking, the public comments SECY–98–058, the staff recommended received, and the NRC’s letter to the that the fire protection rulemaking be Annette Vietti-Cook, petitioner are available for public deferred and that the NRC, in Secretary of the Commission. inspection in the NRC Public Document cooperation with the NFPA and the [FR Doc. 99–27360 Filed 10–19–99; 8:45 am] Room, 2120 L Street NW. (Lower Level), stakeholders, develop a performance- BILLING CODE 7590±01±P VerDate 12-OCT-99 16:50 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\20OCP1.XXX pfrm08 PsN: 20OCP1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Proposed Rules 56477 ENVIRONMENTAL PROTECTION Documents.’’ You can also go directly to 1993), or special considerations as AGENCY the Federal Register listings at http:// required by Executive Order 12898, www.epa.gov/fedrgstr/. entitled Federal Actions to Address 40 CFR Part 180 2. In person. The Agency has Environmental Justice in Minority [OPP±300913A; FRL±6385±4] established an official record for this Populations and Low-Income action under docket control number Populations (59 FR 7629, February 16, RIN 2070±AB78 OPP–300913A. The official record 1994), or require OMB review in consists of the documents specifically accordance with Executive Order 13045, Cyromazine; Pesticide Tolerance referenced in this action, any public Correction entitled Protection of Children from comments received during an applicable Environmental Health Risks and Safety AGENCY: Environmental Protection comment period, and other information Risks (62 FR 19885, April 23, 1997). Agency (EPA). related to this action, including any In addition, under the Regulatory information claimed as Confidential Flexibility Act (5 U.S.C. 601 et seq.), the ACTION: Proposed rule; correction. Business Information (CBI). This official SUMMARY: EPA issued a proposed rule in Agency previously assessed whether record includes the documents that are establishing tolerances, exemptions the Federal Register of September 15, physically located in the docket, as well 1999 proposing tolerances for from tolerances, raising tolerance levels as the documents that are referenced in or expanding exemptions might cyromazine. This document is being those documents. The public version of issued to correct the entries for onion, adversely impact small entities and the official record does not include any concluded, as a generic matter, that dry bulb, and onion, green. information claimed as CBI. The public there is no adverse economic impact. DATES: Comments, identified by docket version of the official record, which The factual basis for the Agency’s control number OPP–300913A, must be includes printed, paper versions of any generic certification for tolerance received on or before November 15, electronic comments submitted during actions published on May 4, 1981 (46 1999. an applicable comment period, is FR 24950), and was provided to the FOR FURTHER INFORMATION CONTACT: By available for inspection in the Public Chief Counsel for Advocacy of the Small mail: Linda DeLuise, Registration Information and Records Integrity Business Administration. Division (7505C), Office of Pesticide Branch (PIRIB), Rm. 119, Crystal Mall Programs, Environmental Protection #2, 1921 Jefferson Davis Hwy., List of Subjects in 40 CFR Part 180 Agency, 401 M St., SW., Washington, Arlington, VA, from 8:30 a.m. to 4 p.m., DC 20460. Office location, telephone Monday through Friday, excluding legal Environmental Protection. number, and e-mail address: Rm. 202, holidays. The PIRIB telephone number Dated: October 5, 1999. Crystal Mall #2, 1921 Jefferson Davis is (703) 305–5805. Hwy., Arlington, VA, 703–305–5428; e- James Jones, mail: [email protected]. III. What Does this Technical Correction Do? Director, Registration Division, Office of ADDRESSES: Comments may be Pesticide Programs. submitted by mail, electronically, or in Proposed tolerances for cyromazine Therefore, FR Doc 99–24047 person. Please follow the detailed on various commodities were published published in the Federal Register of instructions for each method as in the Federal Register on September September 15, 1999 (64 FR 50043) provided in Unit II. of the 15, 1999 (64 FR 50043) (FRL–6098–7). amending 40 CFR part 180 is corrected ‘‘SUPPLEMENTARY INFORMATION.’’ This technical correction corrects the as follows: To ensure proper receipt by EPA, it is proposed tolerance levels for imperative that you identify docket cyromazine on onion, dry bulb, and PART 180Ð[AMENDED] control number OPP–300913A in the onion, green which were incorrectly subject line on the first page of your shown in the codified text of 40 CFR 1. The authority citation for part 180 response. 180.414. continues to read as follows: SUPPLEMENTARY INFORMATION: Authority: 21 U.S.C. 321(q), 346a, 371. IV. Do Any of the Regulatory I. Does this Action Apply to Me? Assessment Requirements Apply to this 2. In § 180.414, the table to paragraph The Agency included a list of those Action? (a), the entries for onion, dry bulb; and who may be potentially affected in the This action proposes to establish onion, green are corrected to read as proposed rule (64 FR 50043, September tolerances under FFDCA section 408(e). follows: 15, 1999. If you have questions The Office of Management and Budget regarding the applicability of this action (OMB) has exempted these types of § 180.414 Cyromazine; tolerances for residues. to a particular entity, consult the person actions from review under Executive listed under ‘‘FOR FURTHER Order 12866, entitled Regulatory (a) * * * INFORMATION CONTACT.’’ Planning and Review (58 FR 51735, October 4, 1993). In addition this Parts II. How Can I Get Additional proposed rule does not contain any Commodity per Information or Copies of this or Other mil- information collections subject to OMB lion Support Documents? approval under the Paperwork 1. Electronically. You may obtain Reduction Act, 44 U.S.C. 3501 et seq., electronic copies of this document, and or impose any enforceable duty or ***** certain other related documents that contain any unfunded mandate as Onion, dry bulb ...... 0.1 might be available electronically, from described under Title II of the Unfunded Onion, green ...... 2.0 the EPA Internet Home Page at http:// Mandates Reform Act of 1995 (Public ***** www.epa.gov/. To access this Law 104–4). Nor does it require any document, on the Home Page select prior consultation as specficed by * * * * * ‘‘Laws and Regulations’’ and then look Executive Order 12875, entitled up the entry for this document under Enhancing the Intergovernmental [FR Doc. 99–27146 Filed 10–19–99; 8:45 am] the ‘‘Federal Register- -Environmental Partnership (58 FR 58093, October 28, BILLING CODE 6560±50±F VerDate 12-OCT-99 16:50 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\20OCP1.XXX pfrm08 PsN: 20OCP1 56478 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Proposed Rules DEPARTMENT OF TRANSPORTATION Electronic Access On May 5, 1999 (64 FR 24128), the Internet users can access all FHWA granted the petitioners’ request Office of the Secretary comments received by the U.S. DOT and extended the docket comment period to August 30, 1999, because of 49 CFR Chapter III Dockets, Room PL–401, by using the universal resource locator (URL): http:/ the difficulty the petitioners and others [FHWA Docket No. FHWA±98±3656] /dms.dot.gov. It is available 24 hours were experiencing in gathering and analyzing roadside inspection and RIN 2125±AE40 each day, 365 days each year. When using the document management system maintenance data necessary to provide Public Meetings To Discuss (dms) website, please enter docket meaningful responses to questions in Responsibilities for the Inspection, number 3656 to search for comments on the ANPRM. To augment the Repair, and Maintenance of Intermodal this rulemaking. Please follow the information received in response to the Container Chassis and Trailers instructions online for more information ANPRM questions, the docket for this and help. rulemaking will accept additional AGENCY: Office of the Secretary, DOT. An electronic copy of this document comments, proceedings transcripts, and ACTION: Notice of public listening may be downloaded using a modem and information generated as a result of the sessions. suitable communications software from listening sessions. SUMMARY: The Office of the Secretary is the Government Printing Office’s Purpose of the Public Meetings announcing a series of public meetings Electronic Bulletin Board Service at (202) 512–1661. Internet users may The Department of Transportation for motor carriers, businesses that offer must ensure that it has considered all intermodal container chassis and reach the Federal Register’s home page at http://www.nara.gov/fedreg and the the pertinent issues that could affect any trailers for transportation, and interested potential rulemaking changes. The parties to discuss current inspection, Government Printing Office’s database at http://www.access.gpo.gov/nara. Department has received numerous repair, and maintenance practices in the comments in response to its advance intermodal transportation industry for Background notice of proposed rulemaking but ensuring that chassis and trailers are in The American Trucking Associations, believes additional information could be safe and proper operating condition at Inc. and the ATA Intermodal obtained through public meetings. all times. Representatives from the Conference (the petitioners) filed a The public meetings will be Federal Highway Administration, petition for rulemaking on March 17, structured as ‘‘listening sessions’’ to Federal Railroad Administration (FRA), 1997, to amend 49 CFR parts 390 and emphasize interactive discussion among Maritime Administration (MARAD), and 396 of the Federal Motor Carrier Safety the participants. Representatives from the Office of the Secretary of Regulations (FMCSRs). The petitioners the Office of the Secretary of Transportation (OST) will participate in asked the FHWA to require parties that Transportation, FHWA, FRA, and the listening sessions which are tender intermodal equipment to motor MARAD will attend the listening intended to help the DOT broaden its carriers to ensure the ‘‘roadworthiness’’ sessions to participate in a dialogue knowledge of the safety implications of of that equipment. The petitioners with the public on the issues associated industry practices where terminal argued that poor maintenance of with a potential rulemaking on the operators or other parties tender intermodal equipment is a serious safety roadability of intermodal equipment. intermodal equipment (container problem and contend that motor carriers Copies of the February 17 ANPRM chassis and trailers) to motor carriers. have limited opportunity to maintain that include the Department’s 14 All oral comments will be transcribed this equipment and other parties that do questions on intermodal equipment and placed in the public docket have the opportunity often fail to do so. roadability will be made available to identified at the beginning of this The FHWA was requested to revise the participants at each of the listening notice. FMCSRs to make the owner or operator sessions. Participants also will be given DATES: of such equipment responsible for the the opportunity to submit questions that November 2, 1999, in Seattle, roadworthiness of the vehicles it tenders they would like to hear discussed by Washington to motor carriers. others in attendance at the listening November 9, 1999, in Des Plaines On February 17, 1999, the FHWA session. It should be noted that these (Chicago), Illinois published an ANPRM (64 FR 7849) listening sessions are not public November 15, 1999, in Jamaica (New seeking information on the extent of the hearings, and participants are York City), New York concerns identified by the petitioners, discouraged from simply reading ADDRESSES: See the SUPPLEMENTARY and public comments on the solution prepared statements. INFORMATION section for addresses of the proposed by the petitioners, i.e., to Participants who wish to submit public meetings. mandate joint responsibility between written comments or statements should FOR FURTHER INFORMATION CONTACT: Mr. the equipment provider and the motor submit the information to the public Richard H. Singer, Office of Motor carrier for maintaining this type of docket identified at the beginning of this Carrier Research and Standards, HMCS– intermodal equipment. The closing date notice. Comments should be mailed to: 10, (202) 366–4009, U.S. Department of for comments was April 19, 1999. Docket Clerk, U.S. DOT Dockets, Room Transportation; or Mr. Charles E. On April 2, 1999, the FHWA received PL–401, 400 Seventh Street, SW., Medalen, Office of the Chief Counsel, a request from the petitioners to extend Washington, DC 20590–0001. All HCC–20, (202) 366–1354, Federal the comment period to allow them to comments received will be available for Highway Administration, 400 Seventh collect and analyze certain data needed examination at the preceding address Street, SW., Washington, DC 20590. to respond to questions in the ANPRM. between 10 a.m. and 5 p.m., e.t., [TDD number for the hearing impaired: The petitioners indicated that they had Monday through Friday, except Federal 1–800–699–7828] Office hours are from been trying to develop current and holidays. Those desiring notification of 7:45 a.m. to 4:15 p.m., e.t., Monday accurate information to respond to the receipt of comments must include a self- through Friday, except Federal holidays. 14 specific questions the FHWA asked addressed, stamped envelope or SUPPLEMENTARY INFORMATION: in the ANPRM. postcard. Comments made during the VerDate 12-OCT-99 16:50 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\20OCP1.XXX pfrm08 PsN: 20OCP1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Proposed Rules 56479 meeting will be transcribed to preserve Since access to the FAA facility is prepare the EIS. Both the EIS and EA an accurate record of the discussion. controlled for security, all visitors must will examine the impacts of pelagics show government-issued photo harvest on, among other things, sea Meeting Information identification (e.g., driver’s license, turtles and seabirds. November 2, 1999—Seattle, Washington local/State/Federal agency NMFS will hold concurrent scoping The Seattle listening session will be identification, etc.), sign-in with the meetings to provide for public input held at the U.S. Coast Guard Integrated security officer located at the entrance into the range of actions, alternatives, Support Command Seattle located at to the building, and wear a visitor’s and impacts that the EIS and EA should 1519 Alaskan Way South, Seattle, badge at all times while in the facility. consider. Scoping for the EIS and EA Washington 98134. The listening As parking at Building 111 is limited, commenced with publication of the session facility is located in the Healy public transportation is recommended. document published on October 6, Training Room in Building 7 of the Pier The Green Bus Line ‘‘Q10’’ bus stops 1999. In addition to holding the scoping 36 Complex. The listening session is directly in front of, and behind, the meetings, NMFS is accepting written scheduled to run from 9:00am until building. Connections to the ‘‘Q10’’ can comments on the range of actions, 12:00 noon; following a break for lunch, be made from the New York City ‘‘A’’, alternatives, and impacts it should be the afternoon portion will reconvene at ‘‘E’’, and ‘‘F’’ subway lines. considering for this EIS, as well as 1:30pm and conclude at 4:30pm. Authority: 49 U.S.C. 504, 31133, 31136, comments on the scope of the EA. Since access to the Coast Guard base and 31502; and 49 CFR 1.48. DATES: Written comments will be is controlled for security, all visitors Issued on October 13, 1999 at Washington, accepted through December 6, 1999. See must show government-issued photo DC. ADDRESSES for location to mail written identification (e.g., driver’s license, William M. Wood, comments. See SUPPLEMENTARY local/State/Federal agency Senior Transportation Specialist, Department INFORMATION for meeting times and identification, etc.) and sign-in with the of Transportation. special accommodations. security officer located at the entrance [FR Doc. 99–27239 Filed 10–19–99; 8:45 am] ADDRESSES: Written comments and to the base. There is no parking BILLING CODE 4910±22±P requests to be included on a mailing list available on-site, and visitors should of persons interested in the EIS should look for parking spaces along Alaskan be sent to Marilyn Luipold, Pacific Way and under the Highway 99 viaduct. Islands Area Office, NMFS, 1601 DEPARTMENT OF COMMERCE November 9, 1999—Des Plaines, Illinois Kapiolani Blvd., Suite 1110, Honolulu, HI 96814–4700. The Chicago listening session will be National Oceanic and Atmospheric Administration See SUPPLEMENTARY held at the Federal Aviation INFORMATION for meeting locations Administration (FAA) Great Lakes 50 CFR Part 660 and special accommodations. Region Headquarters at 2300 East Devon FOR FURTHER INFORMATION CONTACT: Avenue, Des Plaines, Illinois 60018. The [I.D. 101399A] Marilyn Luipold, 808–973–2937 or 2935 listening session facility is located in extension 204. the Michigan Conference Room of the Pelagics Fisheries of the Western SUPPLEMENTARY INFORMATION: New Conference Center in the O’Hare Pacific Region Under the Lake Office Center. The listening Magnuson-Stevens Fishery AGENCY: session is scheduled to run from 9:00 National Marine Fisheries Conservation and Management Act, the am until 12:00 noon; following a break Service (NMFS), National Oceanic and United States has exclusive fishery for lunch, the afternoon portion will Atmospheric Administration (NOAA), management authority over all living reconvene at 1:30pm and conclude at Commerce. marine resources within the EEZ 4:30pm. ACTION: Notice of Intent to prepare an between the seaward boundary of each Since access to the FAA facility is Environmental Impact Statement (EIS); state or U.S. island possession seaward controlled for security, all visitors must Notice of Intent to prepare an to 200 nautical miles from the baseline show government-issued photo Environmental Assessment (EA); used to measure the territorial sea. The identification (e.g., driver’s license, scoping meetings; request for comments. management of these marine resources local/State/Federal agency is vested in the Secretary of Commerce identification, etc.), sign-in with the SUMMARY: On October 6, 1999, NMFS and in eight regional fishery security officer located at the entrance announced its intent to prepare an EIS management councils. The Western to the building, and wear a visitor’s on Federal management of the fishery Pacific Fishery Management Council badge at all times while in the facility. for pelagic species in the exclusive (Council) has the responsibility to There is parking available on-site. economic zone (EEZ) waters of the prepare FMPs for the marine resources Western Pacific Region. The scope of that require conservation and November 15, 1999—Jamaica, New York the EIS analysis will include all management in the Western Pacific The New York City listening session activities related to the conduct of the Region. The National Environmental will be held at the Federal Aviation fishery authorized and managed under Policy Act (NEPA) requires preparation Administration Eastern Region the Fishery Management Plan for the of EISs for major Federal actions Headquarters at JFK International Pelagic Fisheries of the Western Pacific significantly impacting the quality of Airport in Jamaica, New York 11430. Region (FMP) and all amendments the human environment The listening session facility is located thereto. Additionally, NMFS announced (40 CFR 1502.9(a)). in Room 223 of Building 111, directly its intention to prepare an EA on the The FMP was developed by the off the Van Wyck Expressway. The fishery for pelagic species in the EEZ Council, and regulations implementing listening session is scheduled to run waters of the Western Pacific Region. management measures were published from 9:00am until 12:00 noon; following The scope of the analysis of the EA will on February 17, 1987 (52 FR 5983). An a break for lunch, the afternoon portion include all activities related to the EA was prepared for the action will reconvene at 1:30pm and conclude conduct of the fishery for the 2-year implementing the FMP. The FMP has at 4:30 pm. period NMFS anticipates is necessary to been amended seven times, and NEPA VerDate 12-OCT-99 09:46 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\20OCP1.XXX pfrm07 PsN: 20OCP1 56480 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Proposed Rules environmental documents impacts of EEZ fishing activity and FMP. Efforts will be made to quantify (environmental assessments, categorical harvest on the marine environment will and explain the intensity of projected exclusions, findings of no significant be assessed under representative impacts on EFH, target and non-target impact, and an EIS) have been prepared alternative management scenarios that species of fish (including tunas, for each FMP and regulatory will ensure consideration of impacts swordfish, and sharks), fish that are amendment. However, many of these that may reach beyond the EEZ. As the discarded, marine mammals (Hawaiian earlier documents have become number of possible alternatives is monk seals and cetaceans), sea turtles, outdated and/or focused on individual virtually infinite, the EIS will not and seabirds present in the Western management actions, making it difficult consider detailed alternatives for every Pacific ecosystem. Additionally, the EA to obtain a comprehensive view of aspect of the FMP. Therefore, a will evaluate socio-economic impacts issues and management options for the principal objective of the scoping and associated with the fishery on groups of fishery as it exists today. NMFS is public input process is to identify a individuals, including fishing undertaking preparation of a reasonable set of management communities, harvesters, processors and comprehensive EIS in order to analyze alternatives that, with adequate marketers, consumers, subsistence and the fishery as it is currently conducted, analysis, will sharply define critical recreational users of living marine to address any and all impacts that issues and provide a clear basis for resources in the management area, non- might have been overlooked in earlier choice among the alternatives. consumptive users, and individuals analyses, and to improve management Issues involved in allied support industries of the fishery. The Federal action under and management and monitoring of the review is defined as, among other The environmental consequences fisheries. Although the focus of the EA things, all activities authorized and section of the EIS will display the will be analysis of impacts associated managed under the FMP, as amended. impacts of pelagics harvest accruing with continuation of fishing as currently with present management regulations conducted, reasonable alternatives for The EIS will present an overall and under a range of representative picture of the environmental effects of application in the 2-year period, alternative management regulations on including area and/or seasonal closures fishing as conducted under the FMP, Western Pacific ecosystem issues. These rather than focusing narrowly on one for the longline fishery, gear restrictions issues include: Essential fish habitat and/or modifications including management action, and will include a (EFH), target and non-target species of range of reasonable management prohibitions on the use of longline gear fish (including tunas, swordfish, and in part or all of the management area, alternatives and an analysis of their sharks), fish that are discarded, marine impacts in order to define issues and and adjustments to requirements for mammals (Hawaiian monk seals and handling incidental hookings and provide a clear basis for choice among cetaceans), sea turtles, and seabirds options by the public, the Council, and takings of protected species, will be present in the Western Pacific addressed. NMFS. NMFS intends to assess the ecosystem. In addition, the biological and socio-economic impacts environmental consequences section Public Involvement that result from regulation of the pelagic will contain a summary, interpretation, Scoping for the EIS and EA began fisheries of the Western Pacific Region, and predictions for socio-economic with publication of the document on including license limitation, as well as issues associated with conduct of the October 6, 1999, at 64 FR 54272. present and potential controls on effort, fishery on the following groups of Informational presentations of the harvest levels, location, timing, and individuals: (1) Those who participate project will be made at scoping methods of fishing. The effects on in harvesting the fishery resources and meetings held in the Hawaiian Islands associated species, including other living marine resources, (2) those on Oahu, Kauai, Maui, and Hawaii. at interactions with protected species, will who process and market the fish and the following times and locations: be assessed. NMFS intends to evaluate fishery products, (3) those who are the significant changes that have involved in allied support industries, (4) Dates and Times occurred in the pelagic fisheries, those who consume fishery products, (5) 1. Lihue, Kauai, HI—October 25, including the significant cumulative those who rely on living marine 1999, 6 - 8 p.m., Outrigger Kauai Beach effects of changes in fishing activities, resources in the management area either Hotel, 4331 Kauai Beach Dr., Lihue, HI socio-economics, the environment, and for subsistence needs or for recreational 96766. management. The assessment will benefits, (6) those who benefit from non- 2. Kona, Hawaii, HI—October 27, include analysis of the cumulative or consumptive uses of living marine 1999, 6 - 8 p.m., Hotel King incremental impacts of actions and resources, (7) those involved in Kamehameha, 75–5660 Palani Rd., alternatives. Impacts associated with managing and monitoring fisheries, and Kailua Kona, HI 96740 3. Hilo, Hawaii, status quo management (i.e., (8) fishing communities. HI—October 28, 1999, 6 - 8 p.m., Hawaii continuation of fishing as currently EA Issues Naniloa Resort, 93 Banyan Dr., Hilo, HI conducted) will be presented and 96720 compared to situations simulating limits In the EA, NMFS intends to evaluate 4. Kihei, Maui, HI—November 4, on fishing areas and/or gears over all or whether the conduct of the current 1999, at 6 - 8 p.m., Maui Coast Hotel, parts of the management area. Possible fisheries over the next 2 years will have 2259 South Kihei Rd., Kihei, HI 96753. alternatives to the current conduct of significant environmental impacts. The 5. Haleiwa, Oahu, HI—November 8, the fishery include a range of area and/ Federal action under review in the EA 1999, 6 - 8 p.m., Haleiwa Alii Beach or seasonal closures for the longline is defined as all activities authorized Park, 66167 Haleiwa Rd., Haleiwa, HI fishery, gear restrictions and/or and managed under the FMP, as 96712. modifications, including prohibitions amended, for the 2-year period 6. Waianai, Oahu, HI –- November 30, on the use of longline gear in some or anticipated to be necessary for 1999, 6 - 8 p.m., Waianai Public Library, all of the management area, and preparation of the EIS. The EA will 85625 Farrington Hwy., Waianai, HI adjustments to requirements for present an overall picture of the 96792 Arrangements are being made for handling incidental hookings and environmental effects over the next 2 meetings to be held on or about takings of protected species. The years of fishing as conducted under the November 15, 1999, in Pago Pago, VerDate 12-OCT-99 09:46 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\20OCP1.XXX pfrm07 PsN: 20OCP1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Proposed Rules 56481 American Samoa; November 17, 1999, 15, 1999. Comments must be received at adjusting the D fishing season for in Saipan, Commonwealth of the the following address no later than 4:30 pollock in Statistical Area 620 of the Northern Mariana Islands; and p.m., A.l.t., October 29, 1999. GOA by closing the fishery at 2400 hrs, November 18, 1999, in Tumon Bay, ADDRESSES: Comments may be mailed to A.l.t., October 15, 1999, at which time Guam. Specific times and locations will Sue Salveson, Assistant Regional directed fishing for pollock will be be announced in a separate Federal Administrator, Sustainable Fisheries prohibited. This action has the effect of Register document. The Responsible Division, Alaska Region, NMFS, P.O. opening the fishery for 36 hours. NMFS Program Manager for this EIS is Rodney Box 21668, Juneau, AK 99802–1668, is taking this action to allow a R. McInnis, Acting Southwest Regional Attn: Lori Gravel. Hand delivery or controlled fishery to occur, thereby Administrator, NMFS. courier delivery of comments may be preventing the overharvest of the D seasonal allowance of the pollock TAC Special Accommodations sent to the Federal Building, 709 West 9th Street, Room 453, Juneau, AK designated in accordance with the Requests for sign language 99801. Emergency Interim Rule establishing interpretation or other auxiliary aids FOR FURTHER INFORMATION CONTACT: Steller sea lion protection measures for should be directed to Marilyn Luipold, Mary Furuness, 907–586–7228. pollock off Alaska. In accordance with (see ADDRESSES), § 679.25(a)(2)(iii), NMFS has SUPPLEMENTARY INFORMATION: 808–973–2937 (voice) or 808–973– NMFS determined that prohibiting directed 2941 (fax), at least 5 days before the manages the groundfish fishery in the fishing at 2400 hrs, A.l.t., October 15, meeting date. GOA exclusive economic zone 1999, after a 36 hour opening is the least according to the Fishery Management Authority: 16 U.S.C. 1801 et seq. restrictive management adjustment to Plan for Groundfish of the Gulf of achieve the D seasonal allowance of the Dated: October 14, 1999. Alaska (FMP) prepared by the North Bruce C. Morehead, pollock TAC and will allow other Pacific Fishery Management Council fisheries to continue in noncritical areas Acting Director, Office of Sustainable under authority of the Magnuson- Fisheries, National Marine Fisheries Service. and time periods. Pursuant to Stevens Fishery Conservation and § 679.25(b)(2), NMFS has considered [FR Doc. 99–27354 Filed 10–15–99; 3:22 pm] Management Act. Regulations governing data regarding catch per unit of effort BILLING CODE 3510±22±F fishing by U.S. vessels in accordance and rate of harvest in making this with the FMP appear at subpart H of 50 adjustment. CFR part 600 and 50 CFR part 679. DEPARTMENT OF COMMERCE NMFS issued a prohibition on Classification directed fishing for pollock effective National Oceanic and Atmospheric October 12, 1999, for Statistical Area The Assistant Administrator for Administration 620, in accordance with Fisheries, NOAA, finds for good cause that providing prior notice and public 50 CFR Part 679 § 679.20(d)(1)(iii), which was filed with the Office of the Federal Register on comment or delaying the effective date [Docket No. 990304062±9062±01; I.D. October 12, 1999. of this action is impracticable and 101499A] As of October 13, 1999, 3,500 metric contrary to the public interest. Without tons (mt) of pollock remain in the D this inseason adjustment, NMFS could Fisheries of the Exclusive Economic seasonal allowance of the pollock TAC not allow the D seasonal allowance of Zone Off Alaska; Pollock in Statistical in Statistical Area 620 of the GOA. the pollock TAC in Statistical Area 620 Area 620 of the Gulf of Alaska Section 679.23(b) specifies that the time of the GOA to be harvested in an expedient manner and in accordance AGENCY: National Marine Fisheries of all openings and closures of fishing Service (NMFS), National Oceanic and seasons other than the beginning and with the regulatory schedule. Under Atmospheric Administration (NOAA), end of the calendar fishing year is 1200 § 679.25(c)(2), interested persons are Commerce. hrs, A.l.t. Current information shows the invited to submit written comments on this action to the above address until ACTION: Inseason adjustment; request for catching capacity of vessels catching October 29, 1999. comments. pollock for processing by the inshore component in Statistical Area 620 of the This action is required by §§ 679.20 SUMMARY: NMFS issues an inseason GOA is in excess of 3,000 mt per day. and 679.25 and is exempt from review adjustment opening the D fishing season The Administrator, Alaska Region, under E.O. 12866. for pollock in Statistical Area 620 of the NMFS, has determined that the D Authority: 16 U.S.C. 1801 et seq. Gulf of Alaska (GOA) for 36 hours. This seasonal allowance of the pollock TAC adjustment is necessary to manage the D could be exceeded if a 48–hour fishery Dated: October 14, 1999. seasonal allowance of the pollock total were allowed to occur. NMFS intends Richard W. Surdi, allowable catch (TAC) in Statistical that the seasonal allowance not be Acting Director, Office of Sustainable Area 620 of the GOA. exceeded and, therefore, will not allow Fisheries, National Marine Fisheries Service. DATES: Effective 1200 hrs, A.l.t., October a 48–hour directed fishery. NMFS, in [FR Doc. 99–27298 Filed 10–14–99; 4:33 pm] 14, 1999, until 2400 hrs, A.l.t., October accordance with § 679.25(a)(1)(i), is BILLING CODE 3510±22±F VerDate 12-OCT-99 09:46 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\20OCP1.XXX pfrm07 PsN: 20OCP1 56482 Notices Federal Register Vol. 64, No. 202 Wednesday, October 20, 1999 This section of the FEDERAL REGISTER Department of Agriculture, 3101 Park labels on their products must comply contains documents other than rules or Center Drive, Alexandria, VA 22302. with program requirements. Last year proposed rules that are applicable to the FOR FURTHER INFORMATION CONTACT: 795 possible establishments sent in public. Notices of hearings and investigations, 4163 label transmittals. committee meetings, agency decisions and Request for additional information or rulings, delegations of authority, filing of copies of the information collection Estimated Number of Respondents: petitions and applications and agency instruments and instruction should be 795 statements of organization and functions are directed to Marion Hinners at (703) Estimated Number of Responses per examples of documents appearing in this 305–2621. Respondent: 5.2. section. SUPPLEMENTARY INFORMATION: Estimated Total Annual Burden on Title: Child Nutrition Labeling Respondents: 3122.25 hours. Program. DEPARTMENT OF AGRICULTURE OMB Number: 0584–0320. Dated: October 12, 1999. Expiration Date: 9/30/99. Samuel Chambers, Jr., Food and Nutrition Service Type of Request: Revision of currently Administrator, Food and Nutrition Service. Agency Information Collection approved, voluntary collection of [FR Doc. 99–27404 Filed 10–19–99; 8:45 am] Activities: Proposed Collection; information contained in existing BILLING CODE 3410±30±P Comment RequestÐChild Nutrition regulation. Labeling Program Abstract: The Child Nutrition (CN) Labeling Program is a voluntary AGENCY: Food and Nutrition Service, technical assistance program to aid ARCHITECTURAL AND USDA. schools and institutions participating in TRANSPORTATION BARRIERS the National School Lunch Program COMPLIANCE BOARD ACTION: Notice. (NSLP), School Breakfast Program Public Rights-of-Way Access Advisory SUMMARY: (SBP), Child and Adult Care Food In accordance with the Committee; Meeting Paperwork Reduction Act of 1995, this Program (CACFP), and Summer Food Service Program (SFSP) in determining notice announces the intention of the AGENCY: Architectural and the contribution a commercial product Food and Nutrition Service to request Transportation Barriers Compliance makes toward the food-based meal Office of Management and Budget Board. review of information collection pattern requirements of these programs. activities related to the Child Nutrition There is no Federal requirement that ACTION: Notice of appointment of Labeling Program. commercial products must have a CN advisory committee members and date label statement. of first meeting. DATES: Comments on this notice must be To participate in the Child Nutrition received by December 20, 1999. Labeling Program, industry submits SUMMARY: The Architectural and ADDRESSES: Comments are invited on: product labels and formulations to the Transportation Barriers Compliance (a) whether the proposed collection of Food and Nutrition Service (FNS) that Board (Access Board) has decided to information is necessary for the proper are in conformance with the Food Safety establish an advisory committee to performance of the functions of the and Inspection Service (FSIS) label assist it in developing a proposed rule agency, including whether the approval program for meat and poultry, on accessibility guidelines for newly information will have practical utility; or United States Department of constructed and altered public rights-of- (b) the accuracy of the agency’s estimate Commerce (USDC) label approval way covered by the Americans with of the burden of the proposed collection program for seafood products. FNS Disabilities Act of 1990 and the of information including the validity of reviews a manufacturer’s product Architectural Barriers Act of 1968. The the methodology and assumptions used; formulation to determine the Public Rights-of-Way Access Advisory (c) ways to enhance the quality, utility contribution a serving of the product Committee (Committee) includes and clarity of the information to be makes toward the food-based meal organizations which represent the collected; (d) ways to minimize the pattern requirements. The application interests affected by the accessibility burden of the collection of information form submitted to FNS is the same guidelines for public rights-of-way. This on those who are to respond, including application that companies submit to notice also announces the times and through the use of appropriate FSIS or USDC to receive label approval. location of the first Committee meeting, automated, electronic, mechanical, or A CN label application is also reviewed which will be open to the public. other technological collection by FNS for accuracy. DATES: The first meeting of the techniques or other forms of information Estimate of Burden: Based on our Committee is scheduled for November technology. All responses to this notice most recent interviews with 29 and 30, 1999, beginning at 9:00 a.m. will be summarized and included in the manufacturers it is estimated that it and ending at 5:00 p.m. each day. request for Office of Management and takes a manufacturer forty-five minutes Budget approval, and will become a to complete the required calculations ADDRESSES: The meeting will be held in matter of public record. Send comments and to formulate the CN label the 3rd floor training room at 1331 F to: Ms. Lori French, Branch Chief, application. Street, NW., Washington, DC. Nutrition Promotion and Training Respondents: Participation in the CN FOR FURTHER INFORMATION CONTACT: Branch, Child Nutrition Division, Food labeling program is voluntary. Only Scott Windley, Office of Technical and and Nutrition Service, United States manufacturers who wish to place CN Information Services, Architectural and VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56483 Transportation Barriers Compliance American Public Works Association public rights-of-way are issued in the Board, 1331 F Street, NW., suite 1000, Association for Education and Federal Register by the Access Board. Washington, DC, 20004–1111. Rehabilitation of the Blind and The meeting will be help at a site Telephone number (202) 272–5434 Visually Impaired accessible to individuals with extension 125 (Voice); (202) 272–5449 Californians for Disability Rights disabilities. Individuals who require (TTY). E-mail windley@access- Canadian Standards Association, sign language interpreters or real-time board.gov. This document is available in Technical Committee on Barrier-Free captioning systems should contact Scott alternate formats (cassette tape, Braille, Design Windley by November 12, 1999. large print, or computer disk) upon City of Birmingham, Department of Decisions with respect to future request. This document is also available Planning, Engineering and Permits meetings will be made at the first on the Board’s Internet Site (http:// Disability and Business Technical meeting. Notices of future meetings will www.access-board.gov/notices/ Assistance Centers be published in the Federal Register. prowapt.htm). Disability Rights Education and Defense Lawrence W. Roffee, SUPPLEMENTARY INFORMATION: On August Fund Executive Director. 12, 1999, the Architectural and Hawaii Commission on Persons With [FR Doc. 99–27329 Filed 10–19–99; 8:45 am] Transportation Barriers Compliance Disabilities BILLING CODE 8150±01±M Board (Access Board) published a notice Hawaii Department of Transportation of intent to establish an advisory Institute of Transportation Engineers committee to provide recommendations Los Angeles Department of Public for developing a proposed rule Works, Bureau of Street Services DEPARTMENT OF COMMERCE addressing accessibility guidelines for Massachusetts Architectural Access newly constructed and altered public Board. Bureau of Export Administration rights-of-way covered by the Americans Municipality of Anchorage. with Disabilities Act of 1990 and the National Council on Independent Living Action Affecting Export Privileges; Architectural Barriers Act of 1968. 64 National Federation of the Blind Thane-Coat, Inc. FR 43980 (August 12, 1999). New York State Department of In the Matters of: Thane-Coat, Inc., 12725 The notice identified the interests that Transportation Royal Drive, Stafford, Texas 77477, Jerry are likely to be significantly affected by Paralyzed Veterans of America Vernon Ford, President, Thane-Coat, Inc., the accessibility guidelines: Federal Portland Office of Transportation 12725 Royal Drive, Stafford, Texas 77477 and agencies; design professional San Francisco Mayor’s Office on with an address at 7707 Augustine Drive, organizations; transportation and traffic Disability Houston, Texas 77036, and Preston John engineering institutes, departments, and State of Alaska Engebretson, Vice-President, Thane-Coat, organizations; State and local TASH Inc., 12725 Royal Drive, Stafford, Texas Texas Department of Transportation 77477 and with an address at 8903 government public works and Bonhomme Road, Houston, Texas 77074, transportation agencies; pedestrian and The Seeing Eye Respondents. bicycle organizations; standard setting U.S. Department of Transportation, organizations; organizations Federal Highway Administration Decision and Order on Renewal of representing the access needs of The Access Board regrets being Temporary Denial Order individuals with disabilities; and other unable to accommodate all requests for On April 20, 1999, I issued a Decision persons affected by the accessibility membership on the Committee. In order and Order on Renewal of Temporary guidelines. to deep the Committee to a size that can Denial Order (hereinafter ‘‘Order’’ or Over 65 nominations were submitted. be effective, it was necessary to limit ‘‘TDO), renewing for 180 days, in a Approximately 20 nominations were membership. It is also desirable to have ‘‘non-standard’’ format, a May 5, 1997 received from organizations balance among members of the Order naming, inter alia, Thane-Coat, representing persons with disabilities. Committee representing different Inc.; Jerry Vernon Ford, president, About 10 other nominations were clusters of interest, such as disability Thane-Coat, Inc.; and Preston John received from individuals (or family organizations and the transportation Engebretson, vice-president, Thane- members of) persons with disabilities. industry. The Committee membership Coat, Inc. (hereinafter referred to The remaining nominations primarily identified above provides representation collectively as the ‘‘Respondents’’), as consisted of organizations representing for each interest effected by issues to be persons temporarily denied all U.S. the transportation, design, and discussed. export privileges. 64 FR 23051–23052 engineering industry which includes Committee meetings will be open to (April 29, 1999). Unless renewed, the some State and local government the public and interested persons can Order will expire on October 16, 1999. departments of transportation. attend the meetings and communicate On September 24, 1999, pursuant to For the reasons stated in the notice of their views. Members of the public will § 766.24 of the Export Administration intent, the Access Board has determined have an opportunity to address the Regulations (currently codified at 15 that establishing the Public Right-of- Committee on issues of interest to them CFR parts 730–774 (1999)) (hereinafter Way Access Advisory Committee and the Committee. Members of groups the ‘‘Regulations’’), issued pursuant to (Committee) is necessary and in the or individuals who are not members of the Export Administration Act of 1979, public interest. The Access Board has the Committee may also have the as amended (50 U.S.C.A. app. sections appointed 29 members to the Committee opportunity to participate with 2401–2420 (1991 & Supp. 1999)) from the following organizations: subcommittees on the Committee. The (hereinafter the ‘‘Act’’),1 the Office of America Walks Access Board believes that participation American Association of State Highway of this kind can be very valuable for the 1 The Act expired on August 20, 1994. Executive and Transportation Officials advisory committee process. Order 12924 (3 CFR, 1994 Comp. 917 (1995)), extended by Presidential Notices of August 15, 1995 American Council of the Blind Additionally, all interested persons will (3 CFR, 1995 Comp. 501 (1996)), August 14, 1996 American Institute of Architects have the opportunity to comment when (3 CFR, 1996 Comp. 298 (1997)), August 13, 1997 American Public Transit Association the proposal accessibility guidelines for Continued VerDate 12-OCT-99 19:05 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56484 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Export Enforcement, Bureau of Export Iraq, North Korea, Iran, and any other and Preston John Engebretson, Vice Administration, United States country or countries that may be made President, Thane-Coat, Inc., 12725 Royal Department of Commerce (hereinafter subject in the future to a general trade Drive, Stafford, Texas 77477 and 8903 ‘‘BXA’’), requested that I renew the embargo by proper legal authority. In Bonhomme Road, Houston, Texas Order against Thane-Coat, Inc., Jerry return, the Respondents agreed that, 77074, and all of his successors, or Vernon Ford, and Preston John among other conditions, at least 14 days assigns, representatives, agents, and Engebretson for 180 days in a non- in advance of any export that any of the employees when acting on his behalf standard format, consistent with the Respondents intends to make of any (all of the foregoing parties hereinafter terms agreed to by and between the item from the United States to any collectively referred to as the ‘‘denied parties in April 1998. destination world-wide, the persons’’), may not, directly or In its request, BXA stated that, as a Respondents will provide to BXA’s indirectly, participate in any way in any result of an ongoing investigation, it had Dallas Field Office (i) notice of the transaction involving any commodity, reason to believe that, during the period intended export, (ii) copies of all software or technology (hereinafter from approximately June 1994 through documents reasonably related to the collectively referred to as ‘‘item’’) approximately July 1996, Thane-Coat, subject transaction, including, but not subject to the Export Administration Inc., through Ford and Engebretson, and limited to, the commercial invoice and Regulations (hereinafter the using its affiliated companies, TIC Ltd. bill of lading, and (iii) the opportunity, ‘‘Regulations’’) and exported or to be and Export Materials, Inc., made during the 14-day notice period, to exported from the United States to the approximately 100 shipments of U.S.- inspect physically the item at issue to United Kingdom, the Bahamas, Libya, origin pipe coating materials, machines, ensure that the intended shipment is in Cuba, Iraq, North Korea, or Iran, or to and parts to the Dong Ah Consortium in compliance with the Export any other country or countries that may Benghazi, Libya. These items were for Administration Act, the Export be made subject in the future to a use in coating the internal surface of Administration Regulations, or any general trade embargo pursuant to prestressed concrete cylinder pipe for order issued thereunder. BXA has proper legal authority (hereinafter the the Government of Libya’s Great Man- sought renewal of the TDO in a ‘‘non- ‘‘Covered Countries’’), or in any other Made River Project.2 Moreover, BXA’s standard’’ format; respondents have not activity subject to the Regulations with investigation gave it reason to believe opposed renewal of the TDO in the respect to the Covered Countries, that the Respondents and the affiliated ‘‘non-standard’’ format. including, but not limited to: companies employed a scheme to export Based on BXA’s showing, I find that A. Applying for, obtaining, or using U.S.-origin products from the United it is appropriate to renew the order any license, License Exception, or States, through the United Kingdom, to temporarily denying the export export control document; Libya, a country subject to a privileges of Thane-Coat, Inc., Jerry B. Carrying on negotiations comprehensive economic sanctions Vernon Ford, and Preston John concerning, or ordering, buying, program, without the authorizations Engebretson in a ‘‘non-standard’’ format, receiving, using, selling, delivering, required under U.S. law, including the incorporating the terms agreed to by and storing, disposing of, forwarding, Regulations. The approximate value of between the parties in April 1998. I find transporting, financing, or otherwise the 100 shipments at issue was $35 that such renewal is necessary in the servicing in any way, any transaction million. In addition, the Respondents public interest to prevent an imminent involving any item that is subject to the and the affiliated companies undertook violation of the Regulations and to give Regulations and that is exported or to be several significant and affirmative notice to companies in the United States exported from the United States to any actions in connection with the and abroad to cease dealing with these of the Covered Countries, or in any solicitation of business on another persons in any commodity, software, or other activity subject to the Regulations; phase of the Great Man-Made River technology subject to the Regulations or Project. and exported or to be exported to the C. Benefiting in any way from any BXA has stated that it believes that United Kingdom, the Bahamas, Libya, transaction involving any item exported the matters under investigation and the Cuba, Iraq, North Korea, Iran, and any or to be exported from the United States information obtained to date in that other country or countries that may be to any of the Covered Countries that is investigation support renewal of the made subject in the future to a general subject to the Regulations, or in any TDO issued against the Respondents. In trade embargo by proper legal authority, other activity subject to the Regulations. that regard, in April, 1998 BXA and the or in any other activity subject to the Second, that no person may, directly Respondents reached an agreement, Regulations with respect to these or indirectly, do any of the following: whereby BXA sought a renewal of the specific countries. Moreover, I find such A. Export or reexport to or on behalf TDO in a ‘‘non-standard’’ format, renewal is in the public interest in order of any of the denied persons any item denying all of the Respondents’ U.S. to reduce the substantial likelihood that subject to the Regulations to any of the export privileges to the United Thane-Coat, Inc., Ford and Engebretson Covered Countries; B. Take any action that facilitates the Kingdom, the Bahamas, Libya, Cuba, will engage in activities which are in violation of the Regulations. acquisition, or attempted acquisition by any of the denied persons of the (3 CFR, 1997 Comp. 306 (1998)), August 13, 1998 Accordingly, it is therefore ordered: (3 CFR, 1998 Comp. 294 (1999)), and August 10, First, that Thane-Coat, Inc., 12725 ownership, possession, or control of any 1999 (64 FR 44101, August 13, 1999), continued the Royal Drive, Stafford, Texas 77477, and item subject to the Regulations that has Regulations in effect under the International all of its successors or assigns, officers, been or will be exported from the Emergency Economic Powers Act (currently representatives, agents, and employees United States to any of the Covered codified at 50 U.S.C.A. 1701–1706 (1991 & Supp. 1999)). when acting on its behalf, Jerry Vernon Countries, including financing or other 2 BXA understands that the ultimate goal of this Ford, President, Thane-Coat, Inc., 12725 support activities related to a project is to bring fresh water from wells drilled in Royal Drive, Stafford, Texas 77477, and transaction whereby any of the denied southeast and southwest Libya through prestressed 7707 Augustine Drive, Houston, Texas persons acquires or attempts to acquire concrete cylinder pipe to the coastal cities of Libya. This multiphase engineering endeavor is being 77036, and all of his successors, or such ownership, possession or control; performed by the Dong Ah Construction Company assigns, representatives, agents and C. Take any action to acquire from or of Seoul, South Korea. employees when acting on his behalf, to facilitate the acquisition or attempted VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4703 Sfmt 4700 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56485 acquisition from any of the denied Fourth, that, after notice and Entered this 13th day of October, 1999. persons of any item subject to the opportunity for comment, as provided F. Amanda DeBusk, Regulations that has been exported from in Section 766.23 of the Regulations, Assistant Secretary for Export Enforcement. the United States to any of the Covered any person, firm, corporation, or [FR Doc. 99–27402 Filed 10–19–99; 8:45 am] Countries; business organization related to any of BILLING CODE 3510±DT±M D. Obtain from any of the denied the denied persons by affiliation, persons in the United States any item ownership, control, or position of subject to the Regulations with responsibility in the conduct of trade or DEPARTMENT OF COMMERCE knowledge or reason to know that the related services, may also be made International Trade Administration item will be, or is intended to be, subject to the provisions of this Order. exported from the United States to any of the Covered Countries; or Fifth, that this Order does not prohibit Antidumping or Countervailing Duty E. Engage in any transaction to service any export, reexport, or other Order, Finding, or Suspended any item subject to the Regulations that transaction subject to the Regulations Investigation; Opportunity To Request has been or will be exported from the where the only items involved that are Administrative Review United States to any of the Covered subject to the Regulations are the AGENCY: Import Administration, foreign-produced direct product of U.S.- Countries, and which is owned, International Trade Administration, origin technology. possessed or controlled by any of the Department of Commerce. denied persons, or service any item, of Sixth, that, in accordance with the whatever origin, that is owned, ACTION: Notice of opportunity to request provisions of § 766.24(e) of the administrative review of antidumping or possessed or controlled by any of the Regulations, Thane-Coat, Ford, or denied persons if such service involves countervailing duty order, finding, or Engebretson may, at any time, appeal suspended investigation. the use of any item subject to the this Order by filing a full written Regulations that has been or will be statement in support of the appeal with exported from the United States to any Background the Office of the Administrative Law of the Covered Countries. For purposes Judge, U.S. Coast Guard ALJ Docketing Each year during the anniversary of this paragraph, servicing means month of the publication of an Center, 40 South Gay Street, Baltimore, installation, maintenance, repair, antidumping or countervailing duty Maryland 21202–4022. modification or testing. order, finding, or suspension of Third, that, at least 14 days in Seventh, that this Order is effective investigation, an interested party, as advance of any export that any of the immediately and shall remain in effect defined in section 771(9) of the Tariff denied persons intends to make of any for 180 days. Act of 1930, as amended, may request, item from the United States to any Eighth, that, in accordance with the in accordance with § 351.213 of the destination world-wide, the denied provisions of § 766.24(d) of the Department of Commerce (the person will provide to BXA’s Dallas Regulations, BXA may seek renewal of Department) Regulations (19 CFR Field Office (i) notice of the intended this Order by filing a written request not 351.213 (1997)), that the Department export, (ii) copies of all documents later than 20 days before the expiration conduct an administrative review of that reasonably related to the subject date. Any respondent may oppose a antidumping or countervailing duty transaction, including, but not limited request to renew this Order by filing a order, finding, or suspended to, the commercial invoice and bill of written submission with the Assistant investigation. lading, and (iii) the opportunity, during Secretary for Export Enforcement, the 14-day notice period, to inspect Opportunity To Request a Review physically the item at issue to ensure which must be received not later than Not later than the last day of October that the intended shipment is in seven days before the expiration date of 1999, interested parties may request compliance with the Export the Order. administrative review of the following Administration Act, the Export A copy of this Order shall be served orders, findings, or suspended Administration Regulations, or any on each Respondent and shall be investigations, with anniversary dates in order issued thereunder. published in the Federal Register. October for the following periods: Period Antidumping Duty Proceedings Italy: Pressure Sensitive Tape, A±475±059 ...... 10/1/98±9/30/99 Japan: Steel Wire Rope, A±588±045 ...... 10/1/98±9/30/99 Tapered Roller Bearings, Over 4 Inches, A±588±604 ...... 10/1/98±9/30/99 Tapered Roller Bearings, Under 4 Inches, A±588±054 ...... 10/1/98±9/30/99 Vector Supercomputers, A±588±841 ...... 10/1/98±9/30/99 Malaysia: Extruded Rubber Thread, A±557±805 ...... 10/1/98±9/30/99 People's Republic of China: Barium Chloride, A±570±007 ...... 10/1/98±9/30/99 Lock Washers, A±570±822 ...... 10/1/98±9/30/99 Shop Towels, A±570±003 ...... 10/1/98±9/30/99 Yugoslavia: Industrial Nitrocellulose, A±479±801 ...... 10/1/98±9/30/99 Countervailing Duty Proceedings Brazil: Certain Agricultural Tillage Tools, C±351±406 ...... 1/1/98±12/31/98 Colombia: Textile & Textile Products, C±301±401 ...... 1/1/98±12/31/98 India: Iron Metal Castings, C±533±063 ...... 1/1/98±12/31/98 Iran: Roasted In-Shell Pistachios, C±507±601 ...... 1/1/98±12/31/98 Sweden: Certain Carbon Steel Products, C±401±401 ...... 1/1/98±12/31/98 VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56486 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Period Suspension Agreements Kyrgyzstan: Uranium, A±835±802 ...... 10/1/98±9/30/99 Russia: Uranium, A±821±802 ...... 10/1/98±9/30/99 Uzbekistan: Uranium, A±844±802 ...... 10/1/98±9/30/99 In accordance with § 351.213 of the day of October 1999, a request for Council, 5 Broadway, Saugus, MA regulations, an interested party as review of entries covered by an order, 01906. defined by section 771(9) of the Act may finding, or suspended investigation FOR FURTHER INFORMATION CONTACT: request in writing that the Secretary listed in this notice and for the period conduct an administrative review. The identified above, the Department will Daniel T. Furlong, Executive Director, Department changed its requirements instruct the Customs Service to assess Mid-Atlantic Fishery Management for requesting reviews for countervailing antidumping or countervailing duties on Council; telephone: 302–674–2331, ext. duty orders. Pursuant to 771(9) of the those entries at a rate equal to the cash 19, or Paul Howard, Executive Director, Act, an interested party must specify the deposit of (or bond for) estimated New England Fishery Management individual producers or exporters antidumping or countervailing duties Council; telephone: 781–231–0422. covered by the order or suspension required on those entries at the time of SUPPLEMENTARY INFORMATION: The agreement for which they are requesting entry, or withdrawal from warehouse, purpose of this meeting is to review the a review (Department of Commerce for consumption and to continue to results of the recent Dogfish Technical Regulations, 62 FR 27295, 25494 (May collect the cash deposit previously Committee meeting and to develop 19, 1997)). Therefore, for both ordered. quota and management measures for antidumping and countervailing duty This notice is not required by statute spiny dogfish for the 2000–01 fishing reviews, the interested party must but is published as a service to the specify for which individual producers international trading community. year including quotas, trip limits, and any other measure specified in the or exporters covered by an antidumping Dated: October 15, 1999. fishery management plan. The joint finding or an antidumping or Bernard T. Carreau, countervailing duty order it is committee will also discuss the NMFS Deputy Assistant Secretary for Group II, AD/ partial disapproval of the Spiny Dogfish requesting a review, and the requesting CVD Enforcement. FMP and possible alternatives for party must state why it desires the [FR Doc. 99–27411 Filed 10–19–99; 8:45 am] Secretary to review those particular female biomass rebuilding. BILLING CODE 3510±DS±M producers or exporters. If the interested Although non-emergency issues not party intends for the Secretary to review contained in this agenda may come sales of merchandise by an exporter (or DEPARTMENT OF COMMERCE before the Committee for discussion, in a producer if that producer also exports accordance with the Magnuson-Stevens merchandise from other suppliers) National Oceanic and Atmospheric Fishery Conservation and Management which were produced in more than one Administration Act, such issues may not be the subject country of origin and each country of of formal action during this meeting. origin is subject to a separate order, then [I.D. 101399E] Action will be restricted to those issues the interested party must state specifically identified in this notice and specifically, on an order-by-order basis, Mid-Atlantic Fishery Management any issues arising after publication of which exporter(s) the request is Council and the New England Fishery this notice that require emergency intended to cover. Management Council; Public Meeting action under secion 305(c) of the Seven copies of the request should be submitted to the Assistant Secretary for AGENCY: National Marine Fisheries Magnuson-Stevens Act, provided the Import Administration, International Service (NMFS), National Oceanic and public has been notified of the Council’s Trade Administration, Room 1870, U.S. Atmospheric Administration (NOAA), intent to take final action to address the Department of Commerce, 14th Street Commerce. emergency. and Constitution Avenue, NW, ACTION: Notice of joint public meeting. Special Accommodations Washington, DC 20230. The Department also asks parties to serve a copy of their SUMMARY: The Mid-Atlantic Fishery This meeting is physically accessible requests to the Office of Antidumping/ Management Council and the New to people with disabilities. Requests for England Fishery Management Council Countervailing Enforcement, Attention: sign language interpretation or other Joint Dogfish Committee, together with Sheila Forbes, in room 3065 of the main auxiliary aids should be directed to the Joint Dogfish Industry Advisory Commerce Building. Further, in Joanna Davis at the Council Office (see Panel, will hold a public meeting. accordance with § 351.303(f)(1)(i) of the ADDRESSES) at least 5 days prior to the DATES: regulations, a copy of each request must The meeting will be held on meeting date. be served on every party on the Wednesday, November 3, 1999, from Department’s service list. 10:00 a.m. until 4:00 p.m. Dated: October 15, 1999. The Department will publish in the ADDRESSES: This meeting will be held at Richard W. Surdi, Federal Register a notice of ‘‘Initiation the Holiday Inn Boston Logan Airport, Acting Director, Office of Sustainable of Administrative Review of 225 McClellan Highway, Boston, MA; Fisheries, National Marine Fisheries Service. Antidumping or Countervailing Duty telephone: 617–569–5250. [FR Doc. 99–27420 Filed 10–19–99; 8:45 am] Order, Finding, or Suspended Council address: Mid-Atlantic Fishery BILLING CODE 3510±22±F Investigation’’ for requests received by Management Council, Room 2115, 300 the last day of October 1999. If the S. New Street, Dover, DE 19904 and Department does not receive, by the last New England Fishery Management VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56487 DEPARTMENT OF COMMERCE Fishery Management Plan (FMP) for the adjustment is scheduled to occur at that 2000–01 fishing year. time. National Oceanic and Atmospheric Friday, November 5, 1999, 10 a.m.— As an addition to the committee Administration Social Sciences Advisory Committee agenda, members will discuss and Meeting recommend changes to the Sea Scallop [I.D. 101399F] The committee will finalize Total Allowable Catch research set-aside recommendations concerning New England Fishery Management mechanism that is currently in the Sea improvements to the economic, social Council; Public Meetings Scallop FMP. and community impact analyses in Monday, November 15, 1999, 9:30 AGENCY: National Marine Fisheries Council documents and review the a.m.—Gear Conflict Committee Meeting Service (NMFS), National Oceanic and SAFE Reports for the Scallop and the Location: New England Fishery Atmospheric Administration (NOAA), Northeast Multispecies fisheries. Any Management Council Office, 5 Commerce. recommendations made at the last Broadway, Saugus, MA 01906; ACTION: Notice of public meetings. committee meeting will be revisited at telephone: (781) 231–0422. this meeting for purposes of ensuring The committee will develop SUMMARY: The New England Fishery adequate public comment. recommendations concerning gear Management Council (Council) is Tuesday, November 9, 1999, 9:30 conflict issues to be considered by the scheduling public meetings of its a.m.—Joint Habitat Committee and Council when considering scallop Scientific and Statistical Committee, Advisory Panel Meeting vessel access to Closed Areas I and II on Social Sciences Advisory Committee, Location: Sheraton Ferncroft Hotel, 50 Georges Bank, and the Nantucket Habitat Committee and Advisory Panel, Ferncroft Road, Danvers, MA 01923; Lightship Closed Area. The committee Groundfish Committee and Advisory telephone: (978) 777–2500. also may discuss other gear conflict Panel, Sea Scallop Committee and The committee will review proposals issues that are brought to its attention. Advisory Panel, Gear Conflict for scallop fishing access to three Committee and Enforcement Committee groundfish closed areas (Closed Areas I Monday, November 15, 1999, 1 p.m.— in November, 1999 to consider actions and II on Georges Bank, and the Enforcement Committee Meeting affecting New England fisheries in the Nantucket Lightship Closed Area). The Location: New England Fishery exclusive economic zone (EEZ). committee will develop Management Council Office, 5 Recommendations from these groups recommendations on this issue and also Broadway, Saugus, MA 01906; will be brought to the full Council for will discuss the NMFS ‘‘internal’’ telephone: (781) 231–0422. formal consideration and action, if Essential Fish Habitat consultation The committee will develop appropriate. process. recommendations concerning Wednesday, November 10, 1999, 9:30 enforcement issues related to scallop DATES: The meetings will held between vessel access to Closed Areas I and II on Thursday, November 4, 1999 and a.m.—Joint Groundfish Committee and Georges Bank, and the Nantucket Monday, November 15, 1999. See Groundfish Advisory Panel Meeting Location: Sheraton Ferncroft Hotel, 50 Lightship Closed Area for the fishing SUPPLEMENTARY INFORMATION for specific Ferncroft Road, Danvers, MA 01923; year March-February, 2000–01. The dates and times. telephone: (978) 777–2500. committee may discuss other ADDRESSES: The meetings will be held The committee and panel will review enforcement issues that are brought to in, Saugus, Peabody and Danvers, MA. the Northeast Multispecies SAFE its attention. See SUPPLEMENTARY INFORMATION Report, including the annual Although non-emergency issues not for specific locations. Multispecies Monitoring Committee contained in this agenda may come FOR FURTHER INFORMATION CONTACT: Paul Report and proposals from industry for before this Council for discussion, those J. Howard, Executive Director, New management measures to be considered issues may not be the subject of formal England Fishery Management Council; for the 2000–01 fishing year. The Council action during these meetings. (781) 231–0422. committee may recommend a preferred Council action will be restricted to those SUPPLEMENTARY INFORMATION: alternative to the Council for the issues specifically listed in this notice Northeast Multispecies Plan annual Meeting Dates and Agendas and any issues arising after publication framework adjustment. The committee of this notice that require emergency Monday, November 4, 1999, 10 a.m. and panel also will discuss proposals to action under section 305(c) of the and Friday, November 5, 8:30 a.m.-- allow scallop dredge vessel access to Magnuson-Stevens Act, provided the Scientific and Statistical Committee Closed Areas I and II and the Nantucket public has been notified of the Council’s Meeting Lightship Closed Area, and may develop intent to take final action to address the Location: New England Fishery recommendations to the Council for emergency. Management Council Office, 5 measures to be included in the Broadway, Saugus, MA 01906; Northeast Multispecies FMP annual Special Accommodations telephone: (781) 231–0422. framework adjustment. These meetings are physically The committee will evaluate the Friday, November 12, 1999, 9:30 accessible to people with disabilities. scientific information and analyses used a.m.—Joint Scallop Committee and Requests for sign language in the Northeast Multispecies Stock Scallop Advisory Panel Meeting interpretation or other auxiliary aids Assessment and Fishery Evaluation Location: Sheraton Ferncroft Hotel, 50 should be directed to Paul J. Howard (SAFE) Report. The SAFE report will Ferncroft Road, Danvers, MA 01923; (see ADDRESSES) at least 5 days prior to include the Multispecies Monitoring telephone: (978) 777–2500. the meeting dates. Committee Report which addresses the The committee will review the status of the multispecies finfish stocks, impacts of the proposed annual Dated: October 15, 1999. evaluates the effectiveness of framework adjustment alternatives for Richard W. Surdi, management measures and estimates the the Scallop FMP and will recommend a Acting Director, Office of Sustainable potential impacts of possible preferred management option to the Fisheries, National Marine Fisheries Service. management options that could be used Council at its November 16–18, 1999 [FR Doc. 99–27421 Filed 10–19–99; 8:45 am] to adjust the Northeast Multispecies meeting. Final action on the framework BILLING CODE 3510±22±F VerDate 12-OCT-99 17:39 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56488 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices DEPARTMENT OF COMMERCE Dated: October 7, 1999. ongoing processes to develop plans and Q. Todd Dickinson, programs for the management, recovery, Patent and Trademark Office Acting Assistant Secretary of Commerce and and mitigation of the Columbia River Acting Commissioner of Patents and Basin’s fish and wildlife resources. Performance Review Board Trademarks. These plans and programs will help to AGENCY: Patent and Trademark Office, [FR Doc. 99–27305 Filed 10–19–99; 8:45 am] shape a regional fish and wildlife policy Commerce. BILLING CODE 3510±16±M direction that will guide BPA’s ACTION: Announcement of membership mitigation and recovery efforts, of the Patent and Trademark Office including its funding, for the next Performance Review Board. DEPARTMENT OF ENERGY decade or more. BPA expects to shift its fish and wildlife spending accordingly. SUMMARY: In conformance with the Civil Office of Science; Fusion Energy BPA currently funds over 70 percent of Service Reform Act of 1978, 5 U.S.C. Sciences Advisory Committee Renewal the fish and wildlife mitigation and 4314(c)(4), the Patent and Trademark Pursuant to section 14(a)(2)(A) of the recovery efforts on behalf of the Federal Office announces the appointment of Federal Advisory Committee Act Columbia River Power System (FCRPS). persons to serve as members of its (FACA) Pub. L. 92–463, and section Consequently, BPA has a responsibility Performance Review Board. 101–6.1015, title 41 Code of Federal to understand the impacts of those ADDRESSES: Comments should be Regulations, and following consultation efforts and to ensure it can fund them addressed to Director, Office of Human with the Committee Management efficiently. Therefore, BPA intends to Resources, Patent and Trademark Office, Secretariat, General Services prepare an EIS that examines the One Crystal Park, Suite 707, Administration (GSA), notice is hereby impacts that may arise from Washington, DC 20231. given that the Fusion Energy Sciences implementing one of the fish and FOR FURTHER INFORMATION CONTACT: Advisory Committee has been renewed wildlife policy directions reflected in Alethea Long-Green at the above for a two-year period beginning October the alternatives being considered in the address or telephone (703) 305–8062. 1999. The Committee will provide ongoing regional processes. BPA will coordinate the scoping meetings and SUPPLEMENTARY INFORMATION: The advice to the Department on long-range comment processes for this EIS with the membership of the Patent and plans, priorities, and strategies for other ongoing regional processes. Trademark Office Performance Review demonstrating the scientific and However, BPA is preparing this EIS for Board is as follows: technological feasibility of fusion its own purposes, and the EIS is not a Stephen C. Browning, Chair, Acting energy. The renewal of the Fusion Energy predicate for decisions by other Federal Associate Commissioner and Chief Sciences Advisory Committee has been agencies. Financial Officer, Patent and determined to be essential to the DATES: BPA will establish a 30-day Trademark Office, Washington, DC conduct of the Department’s business scoping period during which all 20231, Term—expires September 30, and in the public interest in connection interested and affected persons and 2001 Janice A. Howell, Director, Patent with the performance of duties imposed agencies are invited to comment on the Examining Group, Patent and upon the Department of Energy by law. scope of BPA’s proposed Fish and Trademark Office, Washington, DC The Committee will continue to operate Wildlife Implementation Plan EIS. 20231, Term—expires September 30, in accordance with the provisions of the Scoping will help BPA ensure that a full 2001 FACA, the GSA regulation on Federal range of issues related to the Jin F. Ng, Director, Patent Examining Advisory Committee Management, and implementation of its fish and wildlife Group, Patent and Trademark Office, other directives and instructions issued duties are addressed in the EIS, and also Washington, DC 20231, Term— in implementation of those acts. will identify significant or potentially expires September 30, 2000 Further information regarding this significant impacts that may result from Albin F. Drost, Acting Solicitor, Patent advisory committee can be obtained implementation of such a new plan. A and Trademark Office, Washington, from Ms. Rachel Samuel at (202) 586– Notice of Scoping Meeting(s) will be DC 20231, Term—expires September 3279. published in the Federal Register. That 30, 2001 Issued in Washington, DC on October 8, notice will announce the date(s) and Robert M. Anderson, Deputy Assistant 1999. location(s) of the scoping meeting(s) and Commissioner for Trademarks, Patent James N. Solit, provide specific information on the and Trademark Office, Washington, Advisory Committee Management Officer. close of the scoping period. DC 20231, Term—expires September [FR Doc. 99–27422 Filed 10–19–99; 8:45 am] When completed, the Draft EIS will be circulated for review and comment, and 30, 2001 BILLING CODE 6450±01±P Gerald R. Lucas, Director, Eastern BPA will hold public comment Administrative Support Center, meetings for the Draft EIS. BPA will Department of Commerce, Norfolk, DEPARTMENT OF ENERGY consider and respond to comments VA 23510, Term—expires September received on the Draft EIS in the Final 30, 2001 Bonneville Power Administration EIS. Robert F. Kugelman, Director, Office of ADDRESSES: BPA invites comments and Budget, Department of Commerce, Fish and Wildlife Implementation Plan suggestions on the proposed scope of Washington, DC 20230, Term— AGENCY: Bonneville Power the Draft EIS. Send comment letters, and expires September 30, 2001 Administration (BPA), Department of requests to be placed on the project H. Dieter Hoinkes, Deputy Energy (DOE). mailing list, to Communications, Administrator for Legislative and ACTION: Notice of intent to prepare an Bonneville Power Administration—KC– International Affairs, Patent and environmental impact statement (EIS). 7, PO Box 12999, Portland, Oregon, Trademark Office, Washington, DC 97212. The phone number of the 20231, Term—expires September 30, SUMMARY: Throughout the Pacific Communications office is 503–230–3478 2001 Northwest region there are several in Portland; toll-free 1–800–622–4519 VerDate 12-OCT-99 17:32 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56489 outside of Portland. Comments may also wildlife duties is the Multi-Species Issued in Portland, Oregon, on October 8, be sent to the BPA Internet address: Framework Project (Framework) which 1999. [email protected]. is managed collaboratively by the J. A. Johansen, FOR FURTHER INFORMATION, CONTACT: Northwest Power Planning Council Administrator and Chief Executive Officer. Charles C. Alton, Project Manager, KEC– (States), Federal agencies, and Tribes. [FR Doc. 99–27423 Filed 10–19–99; 8:45 am] 4, Bonneville Power Administration, PO The Framework is developing a set of BILLING CODE 6450±01±P Box 3621, Portland, Oregon, 97208– alternatives for future economic and 3621; phone number 503–230–5878; fax natural resource management of the number 503–230–5699. basin. The EIS will consider the DEPARTMENT OF ENERGY SUPPLEMENTARY INFORMATION: BPA biological, social, and economic effects Federal Energy Regulatory markets electric power from 29 of those alternatives. Commission hydroelectric dams operated by the The other major Federal decision- United States Army, Corps of Engineers making processes that may affect BPA’s (Corps); and the United States [Docket No. RP99±480±002] fish and wildlife duties are those Department of the Interior, Bureau of associated with planning for future Texas Eastern Transmission Reclamation (BoR), in the Pacific Corporation; Notice of Compliance Northwest (Idaho, Montana, Oregon, operations of the FCRPS, National Filing and Washington). Part of the power- Forest Planning activities, and plans for operation of fish hatcheries and marketing responsibility includes October 14, 1999. complying with the laws meant to regulation of fish harvests. Nine Federal Take notice that on October 7, 1999, protect the environment. In the last two agencies are involved in various aspects Texas Eastern Transmission Corporation decades, BPA has spent over $2 billion of these management activities affecting (Texas Eastern) tendered for filing as collected from its ratepayers on the Columbia River—the National part of its FERC Gas Tariff, Sixth measures to mitigate and recover fish Marine Fisheries Service, the Corps, the Revised Volume No. 1, the following and wildlife. BPA currently spends BoR, BPA, the Environmental Protection revised tariff sheets to be effective approximately $252 million annually, Agency, the Fish and Wildlife Service, September 23, 1999: plus there are lost power opportunities the Bureau of Indian Affairs, the Forest and operational costs. Service, and the Bureau of Land Second Sub Second Revised Sheet No. 456 Under the Pacific Northwest Electric Management. BPA is also participating Third Revised Sheet No. 462 Power Planning and Conservation Act in ESA consultations that will lead to a Texas Eastern states that the sole (Northwest Power Act), BPA has duties: decision in the year 2000 regarding how purpose of this filing is to comply with (1) To protect, mitigate, and enhance to structure and operate the FCRPS. the Commission’s letter order in Docket fish and wildlife adversely affected by That decision will not be considered in Nos. RP99–480–000 and 001 dated the construction and operation of the the EIS here being proposed. The September 22, 1999 accepting Texas FCRPS, and (2) to do so in a manner that National Environmental Policy Act Eastern’s August 23, 1999 filing, to provides equitable treatment for such documentation for that decision has include in its tariff a negotiated rates fish and wildlife with the other already been or is currently being provision pursuant to the Alternative purposes of the FCRPS. Under the prepared in a separate process. Rates Policy Statement [74 FERC 61,076 Endangered Species Act (ESA), BPA has In addition to the Framework and (1996)]. Texas Eastern states that the duties to avoid jeopardy to species revised tariff sheets modify the net listed under ESA and to aid in the Federal Caucus processes, there are numerous other actions related to the present value evaluations in Sections recovery of those species. BPA’s 3.12(A)(1) and 3.13(E) of the General development and implementation of mitigation and recovery expenditures Terms and Conditions of its tariff as BPA’s fish and wildlife implementation are typically in fulfillment of these required by the Commission in the Northwest Power Act and ESA duties. plan. These actions include studies to September 22, 1999 letter order. BPA expects that the entities that help address water quality issues in the guide its expenditures for mitigation Columbia and Snake Rivers, various Texas Eastern states that copies of its and recovery will recommend changes salmon restoration plans, and a review filing have been mailed to all affected customers and interested state in BPA’s spending regime and of artificial (hatchery) production. Still commissions. programs. These recommendations other processes may be identified could include eliminating some current during scoping. This EIS will use Any person desiring to protest this mitigation projects, significantly information from these efforts in its filing should file a protest with the modifying others, and initiating whole analysis. Federal Energy Regulatory Commission, new projects. These changes in 888 First Street, NE, Washington, DC priorities may require reexamination of Need for the EIS 20426, in accordance with Section the impacts BPA enables through its fish 385.211 of the Commission’s Rules and and wildlife funding. Therefore, BPA is BPA intends to reexamine the Regulations. All such protest must be initiating an EIS to study the assumptions underlying its current fish filed as provided in Section 154.210 of environmental impacts that may arise and wildlife implementation plan. The the Commission’s Regulations. Protests from BPA’s implementation of the purpose of the EIS is to compare the will be considered by the Commission alternatives being considered in the status quo implementation plan with in determining the appropriate action to other regional processes currently alternatives derived from the other be taken, but will not serve to make underway. The EIS will provide a regional processes in an attempt to find protestants parties to the proceedings. broad-based comparison of the impacts a better way to achieve greater Copies of this filing are on file with the associated with these alternatives. administrative efficiency, biological Commission and are available for public The first regional process to develop effectiveness, and cost-effectiveness inspection in the Public Reference alternatives that may affect the while providing health and stability for Room. This filing may be viewed on the implementation of BPA’s fish and the environment and economy. web at http://www.ferc.fed.us/online/ VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56490 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices rims.htm (call 202-208-2222 for construction completion/in-service Commission’s final order to a federal assistance). condition, as it applies to this amended court. David P. Boergers, compressor station site, from the date of The Commission will consider all Secretary. the final order on this amendment comments and concerns equally, [FR Doc. 99–27359 Filed 10–19–99; 8:45 am] application. whether filed by commenters or those BILLING CODE 6717±01±M Any question regarding this requesting intervenor status. amendment should be directed to Ned Take further notice that, pursuant to Hengerer, Counsel for Vector Pipeline the authority contained in and subject to DEPARTMENT OF ENERGY L.P., John & Hengerer, 1200 17th Street, the jurisdiction conferred upon the NW, Suite 600, Washington, DC 20036 Commission by Sections 7 and 15 of the Federal Energy Regulatory at (202) 429–8811. Natural Gas Act and the Commission’s Commission Any person desiring to be heard or to rules of Practice and Procedure, a [Docket No. CP98±133±003] make any protest with reference to said hearing will be held without further application should on or before October notice before the Commission or its Vector Pipeline L.P.; Notice of 28, 1999, file with the Federal Energy designee on this application if no Amendment Regulatory Commission, 888 First motion to intervene is filed within the Street, NW, Washington, DC 20426, a time required herein, if the Commission October 14, 1999. motion to intervene or a protest in on its own review of the matter finds Take notice that on October 4, 1999, accordance with the requirements of the that a grant of the certificate is required Vector Pipeline L.P. (Vector), 2900 421– Commission’s Rules of Practice and by the public convenience and 7th Avenue SW, Calgary, Alberta, Procedure (18 CFR 385.211 and necessity. If a motion for leave to Canada T2P 4K9, filed in Docket No. 385.214) and the regulations under the intervene is timely filed, or if the CP98–133–003 an application pursuant Natural Gas Act (18 CFR 157.10). All Commission on its own motion believes to Section 7(c) of the Natural Gas Act for protests filed with the Commission will that formal hearing is required, further an amendment to its certificate of public be considered by it in determining the notice of such hearing will be duly convenience and necessity previously appropriate action to be taken but will given. issued by the Commission on May 27, not serve to make the protestants parties Under the procedure herein provided 1999, in Docket No. CP98–133–000, all to the proceeding. The Commission’s for, unless otherwise advised, it will be as more fully set forth in the application rules require that protestors provide unnecessary for Vector to appear or to which is on file with the Commission copies of their protests to the party or be represented at the hearing. and open to public inspection. This parties directly involved. Any person David P. Boergers, filing may be viewed on the Internet at wishing to become a party in any http://www.ferc.fed.us/online/rims.htm Secretary. proceeding herein must file a motion to (call 202–208–2222 for assistance). [FR Doc. 99–27358 Filed 10–19–99; 8:45 am] The Commission’s May 27, 1999 order intervene in accordance with the BILLING CODE 6717±01±M authorized, among other things, the Commission’s rules. construction and operation of a pipeline A person obtaining intervenor statues from Joilet, Illinois to the U.S.-Canada will be placed on the service list DEPARTMENT OF ENERGY border near St. Clair, Michigan. Vector maintained by the Secretary of the Federal Energy Regulatory states that the May 27, 1999 order also Commission and will receive copies of certificated the ‘‘Milford’’ Compressor all documents filed by the applicant and Commission Station site; although, the Final by every one of the intervenors. An [Docket No. EC00±2±000, et al.] Environmental Impact Analysis found intervenor can file for rehearing of any that either the proposed ‘‘Milford’’ site Commission order and can petition for Louisville Gas and Electric Company, or ‘‘Alternate Site 2’’, both located in court review of any such order. et al.; Electric Rate and Corporate Oakland County, Michigan, would be However, an intervenor must submit Regulation Filings acceptable as a site for construction of copies of comments or any other filing the compressor station. it makes with the Commission to every October 12, 1999. Specifically, Vector seeks other intervenor in the proceeding, as Take notice that the following filings authorization to move the site of the well as 14 copies with the Commission. have been made with the Commission: construction of the subject compressor A person does not have to intervene, 1. Louisville Gas and Electric Company, station from the ‘‘Milford’’ site to however, in order to have comments Kentucky Utilities Company ‘‘Alternate Site 2’’ (which Vector has re- considered. A person, instead, may named as the ‘‘Highland’’ site). Vector submit two copies of comments to the [Docket No. EC00–2–000] states that it has negotiated a purchase Secretary of the Commission. Take notice that on October 5, 1999, agreement for the ‘‘Highland’’ site, Commenters will be placed on the Louisville Gas and Electric Company thereby obviating the need for eminent Commission’s environmental mailing (LG&E) and Kentucky Utilities Company domain. Vector further states that list, will receive copies of (KU) tendered for filing, pursuant to shifting the compressor station site from environmental documents and will be Section 203 of the Federal Power Act, ‘‘Milford’’ to ‘‘Highland’’ does not able to participate in meetings 16 U.S.C. 824(b) (1999), and Part 33 of impair Vector’s ability to meet its design associated with the Commission’s the Commission’s regulations, 18 CFR requirements, although the shift will environmental review process. part 33, an Application for approval of result in additional costs that will Commenters will not be required to the disposition of their joint interests in increase Vector’s recourse rate by serve copies of filed documents on all certain combustion turbine units and approximately $0.002 per Dth on a unit other parties. However, commenters related transmission facilities through a basis. will not receive copies of all documents sale/leaseback transaction with a foreign Vector also requests that Ordering filed by other parties or issued by the entity, and for the waiver of certain Paragraph (E) of the May 27, 1999 order Commission and will not have the right filing requirements under Part 33 of the be amended to impose the two-year to seek rehearing or appeal the Commission’s regulations. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56491 The application requests that the Monongahela Power Company, The Improvement District (RCID) under Commission (1) Approve the disposition Potomac Edison Company, and West Tampa Electric’s market-based sales of the jurisdictional facilities associated Penn Power Company, tendered for tariff. with Units No. 5 and 6 at KU’s E. W. filing an amendment to their application Tampa Electric proposes that the Brown generating station through a sale/ in Docket No. ER99–4021–000 service agreement be made effective on leaseback transaction with a foreign requesting authorization for the September 18, 1999. entity. The proposed disposition would Allegheny Power operating companies Copies of the filing have been served permit LG&E and KU to share in certain to sell power to one another at a market- on RCID and the Florida Public Service tax benefits available to the foreign based index price. Commission. entity under the laws of the foreign Allegheny Power requests an effective Comment date: October 25, 1999, in entity’s sovereign, and (2) Grant the date one day after filing. accordance with Standard Paragraph E waiver of the requirements of 18 CFR Copies of the filing have been at the end of this notice. 33.2(g) (statement of cost of facilities provided to the Public Utilities 8. Western Systems Power Pool involved in the sale/leaseback), and 18 Commission of Ohio, the Pennsylvania CFR 33.3 (required exhibits). Public Utility Commission, the [Docket No. ER00–43–000] LG&E and KU requested expedited Maryland Public Service Commission, Take notice that on October 5, 1999, consideration of the application. the Virginia State Corporation Deseret Generation & Transmission Co- A copy of this filing was served upon Commission, the West Virginia Public operative, Inc. (Deseret), tendered for the Kentucky Public Service Service Commission, and all parties of filing an executed Confirmation Commission. record. Agreement between Deseret and Comment date: November 4, 1999, in Comment date: October 25, 1999, in Arizona Public Service Company (APS) accordance with Standard Paragraph E accordance with Standard Paragraph E regarding a long-term purchase and sale at the end of this notice. at the end of this notice. transaction under the Western Systems Power Pool Agreement. 2. PSI Energy, Inc. 5. Southern Company Energy Comment date: October 25, 1999, in [Docket No. EC00–3–000] Marketing L.P. accordance with Standard Paragraph E Take notice that on October 5, 1999, [Docket No. ER00–46–000] at the end of this notice. PSI Energy, Inc. (PSI) tendered for filing Take notice that on October 5, 1999, 9. Entergy Services, Inc. pursuant to Section 203 of the Federal Southern Company Energy Marketing Power Act, 16 U.S.C. 824b and Section [Docket No. ER00–42–000] 33.1(a)(1) of the Federal Energy L.P. (SCEM), tendered for filing an Take notice that on October 5, 1999, Regulatory Commission’s Regulations, application requesting approval of its Entergy Services, Inc. (Entergy 18 CFR 33.1(a)(1) its application for revised Market Rate Tariff (Revised Services), on behalf of Entergy Gulf approval of the sale of 53 of its Tariff), waiver of certain regulations and States, Inc. (Entergy Gulf States), communications towers to an affiliated certain of the Federal Energy Regulatory tendered for filing an Interconnection company, Cinergy Communications, Commission’s filing requirements. The and Operating Agreement between Inc. (CCI). Revised Tariff permits SCEM to engage Entergy Gulf States and RS Cogen, PSI states that it has served copies of in sales of ancillary services at market- L.L.C. its application upon the Indiana Utility based rates to eligible customers in three Comment date: October 25, 1999, in Regulatory Commission. discrete geographic markets within the accordance with Standard Paragraph E Comment date: November 4, 1999, in United States. at the end of this notice. accordance with Standard Paragraph E Comment date: October 25, 1999, in at the end of this notice. accordance with Standard Paragraph E 10. Entergy Services, Inc. at the end of this notice. [Docket No. ER00–41–000] 3. Avista Corp. 6. Tampa Electric Company Take notice that on October 5, 1999, [Docket No. ER99–3408–000] Entergy Services, Inc. (Entergy Take notice that on August 2, 1999, [Docket No. ER00–45–000] Services), on behalf of Entergy Gulf Avista Corp., tendered for filing a Take notice that on October 5, 1999, States, Inc. (Entergy Gulf States), clarification of the rates under an Tampa Electric Company (Tampa tendered for filing a Letter Amendment executed service agreement with Electric), tendered for filing a service to the Interconnection and Operating Cogentrix Energy Power Marketing, Inc., agreement with Sonat Power Marketing Agreement between Entergy Gulf States for Dynamic Capacity and Energy L.P. (Sonat), under Tampa Electric’s and RS Cogen, L.L.C. Service at cost-based rates under Avista market-based sales tariff. Comment date: October 25, 1999, in Corp.’s FERC Electric Tariff, Original Tampa Electric proposes that the accordance with Standard Paragraph E Volume No. 10. The service agreement service agreement be made effective on at the end of this notice. was filed with the Commission on June September 17, 1999. 11. Entergy Services, Inc. 29, 1999. Copies of the filing have been served Comment date: October 25, 1999, in on Sonat and the Florida Public Service [Docket No. ER00–40–000] accordance with Standard Paragraph E Commission. Take notice that on October 5, 1999, at the end of this notice. Comment date: October 25, 1999, in Entergy Services, Inc. (Entergy accordance with Standard Paragraph E Services), on behalf of Entergy Gulf 4. Allegheny Power Service at the end of this notice. Corporation; On behalf of Monongahela States, Inc. (Entergy Gulf States), Power Company; The Potomac Edison 7. Tampa Electric Company tendered for filing a Letter Amendment to the Interconnection and Operating Company; and West Penn Power [Docket No. ER00–44–000] Company; and (Allegheny Power) Agreement between Entergy Gulf States Take notice that on October 5, 1999, and RS Cogen, L.L.C. [Docket No. ER99–4021–000] Tampa Electric Company (Tampa Comment date: October 25, 1999, in Take notice that on October 5, 1999, Electric), tendered for filing a service accordance with Standard Paragraph E Allegheny Power, on behalf of agreement with the Reedy Creek at the end of this notice. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56492 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 12. Broad River Energy LLC allow the Service Agreement to become protestants parties to the proceeding. [Docket No. ER00–39–000] effective September 15, 1999. Any person wishing to become a party A copy of this filing was caused to be must file a motion to intervene. Copies Take notice that on October 5, 1999, served upon Mieco, Inc., as noted in the of these filings are on file with the Broad River Energy LLC (Broad River), filing letter. Commission and are available for public tendered for filing information related to Comment date: October 25, 1999, in inspection. This filing may also be its market-based rate application also accordance with Standard Paragraph E viewed on the Internet at http:// filed on this date. This information at the end of this notice. www.ferc.fed.us/online/rims.htm (call consists of an organizational chart 202–208–2222 for assistance). listing all the entities affiliated with 15. Portland General Electric Company David P. Boergers Broad River and its direct and upstream [Docket No. ER00–35–000] Secretary. owners. Broad River requested Take notice that on October 5, 1999, confidential treatment of the Portland General Electric Company [FR Doc. 99–27356 Filed 10–19–99; 8:45 am] organizational chart pursuant to 18 CFR (PGE), tendered for filing under PGE’s BILLING CODE 6717±01±P 388.112. FERC Electric Tariff, Original Volume Comment date: October 25, 1999, in No. 12 (Docket No. ER99–1224–000), an DEPARTMENT OF ENERGY accordance with Standard Paragraph E executed Service Agreement for the at the end of this notice. Sale, Assignment, or Transfer of Federal Energy Regulatory Transmission Rights with Enron Power 13. Broad River Energy LLC Commission Marketing, Inc. [Docket No. ER00–38–000] Pursuant to 18 CFR 35.11, and the [Docket Nos. CP99±61±000; CP99±62±000; CP99±63±000; and CP99±64±000] Take notice that on October 5, 1999, Commission’s Order in Docket No. PL93–2–002 issued July 30, 1993, PGE Broad River Energy LLC (Broad River), TriState Pipeline, L.L.C.; Notice to respectfully requests that the tendered for filing an application for Postpone the Public Meetings for the Commission grant a waiver of the notice waivers and blanket approvals under Proposed Tristate Pipeline Project various regulations of the Commission requirements of 18 CFR 35.3 to allow and for an order accepting its FERC the Service Agreement to become October 14, 1999. Electric Rate Schedule No. 1. effective October 1, 1999. By letter dated October 12, 1999, Additionally, Broad River has tendered Comment date: October 25, 1999, in TriState Pipeline, L.C.C. (TriState) for filing a power purchase agreement accordance with Standard Paragraph E requested that the Commission hold in (PPA) between it and Carolina Power & at the end of this notice. abeyance its application until TriState Light Company. Broad River proposes 16. Southern California Edison files a project status report no later than that its Rate Schedule No. 1 and its sales Company January 15, 2000. Therefore, the staff is under the PPA become effective upon postponing the TriState Pipeline Project commencement of service of the Broad [Docket No. ER00–34–000] Draft Environmental Impact statement River Energy Center (the Facility), a Take notice that on October 5, 1999, (DEIS) public meetings scheduled for generation project currently being Southern California Edison Company October 20 and 21, 1999. The written developed by Broad River in the State (SCE), tendered for filing a revised comment period on the DEIS is of South Carolina. The Facility will not Exhibit A to the Specifications for extended until January 15, 2000, and the be commercially operable until June, Wholesale Distribution Service to the staff may reschedule the public 2000. Service Agreement for Wholesale meetings following their review of Broad River intends to sell energy and Distribution Service between SCE–QF TriState’s project report. Resources Department and SCE capacity from the Facility pursuant to David P. Boergers, the terms of the PPA and other Transmission and Distribution Business Unit under the Wholesale Distribution Secretary. agreements at market-based rates, and [FR Doc. 99–27357 Filed 10–19–99; 8:45 am] on such terms and conditions to be Access Tariff. Copies of this filing were served upon BILLING CODE 6717±01±M mutually agreed to with the purchasing the Public Utilities Commission of the party. State of California and all interested Comment date: October 25, 1999, in parties. ENVIRONMENTAL PROTECTION accordance with Standard Paragraph E Comment date: October 25, 1999, in AGENCY at the end of this notice. accordance with Standard Paragraph E [FRL±6460±6] 14. Portland General Electric Company at the end of this notice. [Docket No. ER00–36–000] Standard Paragraphs Agency Information Collection Activities: Submission for OMB Take notice that on October 5, 1999, E. Any person desiring to be heard or Review; Comment Request, Standards Portland General Electric Company to protest such filing should file a of Performance of Volatile Organic (PGE), tendered for filing under PGE’s motion to intervene or protest with the Compound (VOC) Emissions From the Market-Based Rate Tariff, FERC Electric Federal Energy Regulatory Commission, Synthetic Organic Chemical Tariff, First Revised Volume No. 11 888 First Street, NE, Washington, DC Manufacturing Industry (SOCMI), Air (Docket No. ER99–1263–000), an 20426, in accordance with Rules 211 Oxidation Unit Processes; and executed Service Agreement for Service and 214 of the Commission’s Rules of Distillation Operations at Market-Based Rates with Mieco, Inc. Practice and Procedure (18 CFR 385.211 Pursuant to 18 CFR Section 35.11, and and 385.214). All such motions or AGENCY: Environmental Protection the Commission’s Order in Docket No. protests should be filed on or before the Agency (EPA). PL93–2–002 issued July 30, 1993, PGE comment date. Protests will be ACTION: Notice. respectfully requests that the considered by the Commission in Commission grant a waiver of the notice determining the appropriate action to be SUMMARY: In compliance with the requirements of 18 CFR Section 35.3 to taken, but will not serve to make Paperwork Reduction Act (44 U.S.C. VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56493 3501 et seq.), this document announces following one-time-only reports: provided burden estimates, and any that the following Information notification of the date of construction suggested methods for minimizing Collection Request (ICR) has been or reconstruction; notification of the respondent burden, including through forwarded to the Office of Management anticipated and actual dates of startup; the use of automated collection and Budget (OMB) for review and notification of any physical or techniques to the following addresses. approval: Standards of Performance of operational change to an existing facility Please refer to EPA ICR No. 0998.06 and Volatile Organic Compound (VOC) which may increase the regulated OMB Control No. 2060–0197 in any Emissions from the Synthetic Organic pollutant emission rate; notification of correspondence. Chemical Manufacturing Industry the date of the initial performance test; Ms. Sandy Farmer, U.S. Environmental (SOCMI), Air Oxidation Unit Processes; and the results of the initial Protection Agency, Office of Policy, and Distillation Operations OMB performance test. Owners or operators Regulatory Information Division Control Number 2060–0197, expiration are also required to maintain records of (2137), 401 M Street, SW., date 12/31/99. The ICR describes the the occurrence and duration of any Washington, DC 20460; and nature of the information collection and startup, shutdown, or malfunction in Office of Information and Regulatory its expected burden and cost; where the operation of an affected facility, or Affairs, Office of Management and appropriate, it includes the actual data any period during which the monitoring Budget, Attention: Desk Officer for collection instrument. system is inoperative. These EPA, 725 17th Street, NW., DATES: Comments must be submitted on notifications, reports and records are Washington, DC 20503. required, in general, of all sources or before November 19, 1999. Dated: October 13, 1999. FOR FURTHER INFORMATION CONTACT: subject to NSPS. An Agency may not conduct or Joseph Retzer, Sandy Farmer at EPA by phone at (202) sponsor, and a person is not required to Director, Regulatory Information Division. 260–2740, by E-Mail at respond to a collection of information [FR Doc. 99–27390 Filed 10–19–99; 8:45 am] [email protected] or unless it displays a currently valid OMB BILLING CODE 6560±50±P download a copy of the ICR off the control number. The OMB control Internet at http://www.epa.gov/icr and numbers for EPA’s regulations are listed refer to EPA ICR No. 0998.06. in 40 CFR part 9 and 48 CFR Chapter ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: 15. The Federal Register document AGENCY Title: Standards of Performance of required under 5 CFR 1320.8(d), [Docket No. A±99±31; FRL±6459±3] Volatile Organic Compound (VOC) soliciting comments on this collection Emissions from the Synthetic Organic of information was published on 06/04/ List of Source Categories Chemical Manufacturing Industry 99 (64 FR 30011); no comments were (SOCMI), Air Oxidation Unit Processes, received. AGENCY: Environmental Protection Subpart III, and Distillation Operations, Burden Statement: The annual public Agency (EPA). Subpart NNN; OMB Control No. 2060– reporting and recordkeeping burden for ACTION: Notice of receipt of a complete 0197; EPA ICR No. 0998.06, expiration this collection of information is petition. 12/31/99. This is a request for an estimated to average 50 hours per SUMMARY: extension of a currently approved response. Burden means the total time, This notice announces that collection. effort, or financial resources expended EPA has created a two-piece beer and Abstract: This ICR contains by persons to generate, maintain, retain, beverage can coating (two-piece can) recordkeeping and reporting or disclose or provide information to or subcategory within the Metal Can requirements that are mandatory for for a Federal agency. This includes the (Surface Coating) source category. This compliance with 40 CFR 60.610, subpart time needed to review instructions; notice also announces the receipt of a III, Standards of Performance for VOC develop, acquire, install, and utilize complete petition from the Can Emissions from SOCMI Air Oxidation technology and systems for the purposes Manufacturers’ Institute (CMI) Unit Processes and 40 CFR 60.660, of collecting, validating, and verifying requesting EPA to remove the two-piece subpart NNN, Standards of Performance information, processing and can subcategory from the List of Source for VOC from SOCMI Distillation maintaining information, and disclosing Categories (Source Category List). The Operations. This information is used by and providing information; adjust the Source Category List was developed the Agency to identify sources subject to existing ways to comply with any pursuant to section 112(c)(1) of the the standards and to insure that the best previously applicable instructions and Amendments to the 1990 Clean Air Act demonstrated technology is being requirements; train personnel to be able (Act) and published in the Federal properly applied. The standards require to respond to a collection of Register on July 16, 1992 (57 FR 31576). We have determined that the original periodic recordkeeping to document information; search data sources; petition submittal by CMI, dated process information relating to the complete and review the collection of November 4, 1996, plus the sources’ ability to meet the requirements information; and transmit or otherwise supplemental materials provided by of the standard and to note the disclose the information. operation conditions under which Respondents/Affected Entities: CMI through April 21, 1999, will compliance was achieved. Owners/Operators of the Synthetic support an assessment of the human In the Administrator’s judgment, VOC Organic Chemical Manufacturing health impacts associated with emissions from SOCMI air oxidation Industry hazardous air pollutant (HAP) emissions unit processes and distillation Estimated No. of Respondents: 2,767 from two-piece can coating operations. operations cause or contribute to air Frequency of Response: Semiannual In addition, the data submitted by CMI pollution that may reasonably be Estimated Total Annual Hour Burden: will support an assessment of the anticipated to endanger public health or 278,687 hours. environmental impacts associated with welfare. Therefore, NSPS were Estimated Total Annualized Capital, HAP emissions from the two-piece can promulgated for this source category. O&M Cost Burden: coating subcategory. Consequently, we Owners or operators of the affected Send comments on the Agency’s need have concluded that CMI’s petition is facilities described must make the for this information, the accuracy of the complete as of April 21, 1999, the date VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56494 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices of the last supplement, and is ready for EPA activities under section 112 of the The EPA will not grant a petition to public comment and the technical Act. delete a source category or subcategory review phase of our delist petition from the Source Category List pursuant B. What Is the Source Category List? evaluation process. to section 112(c)(9)(B) unless EPA This notice invites the public to Section 112(c) of the Act requires the makes an initial determination that each provide additional information, beyond EPA to publish a list of all categories of the statutory criteria appear to be met that filed in the petition, on sources, and subcategories of major and area for each HAP emitted by each emissions, exposure, health effects and sources of HAPs which will be subject individual source within the category or environmental impacts associated with to regulation. A ‘‘major source’’ is any subcategory. HAP emissions from two-piece can stationary source (including all D. What Is a Subcategory? coating operations that may be relevant emission points and units located to our technical review. within a contiguous area and under A subcategory is a group of similar DATES: Comments and additional data common control) of air pollution that sources within a given source category. will be accepted if received on or before has the potential to emit, considering As part of the regulatory development November 19, 1999. controls, 10 tons or more per year of any process, EPA evaluates the similarities ADDRESSES: Documents. A copy of the HAP, or 25 or more tons per year of any and differences between industry complete petition is contained in a combinations of HAPs. An ‘‘area segments or groups of facilities docket available at the Air and source’’ is a stationary source that emits comprising a source category. Different Radiation Docket and Information HAPs in amounts less than 10 or 25 tons source categories may be evaluated and Office, 401 M Street SW, Room M–1500 per year. For an area source category to subcategorized in different ways. (6102), Waterside Mall, Washington, DC be listed, the EPA must determine that In establishing subcategories, EPA 20460. The docket number for this the source category presents a threat to considers factors such as process action is A–99–31. You may inspect the human health or to the environment. operations (type of process, raw petition and copy it for offsite review Under section 112(d), the Act requires materials, chemistry/formulation data, between 8:30 a.m. and 5:30 p.m. EST, EPA to establish national emission associated equipment, and final Monday through Friday. A reasonable standards for source categories based on products); emission characteristics fee may be charged for copying. maximum achievable control (amount and type of HAP); control Comments and Data Submissions. technology (MACT) for major source device applicability; and opportunities Comments and additional data should categories and to set either MACT or for pollution prevention. The EPA may be submitted (in duplicate if possible) generally available control technology also look at existing regulations or to: The Docket Clerk, Air and Radiation (GACT) standards for area source guidance from States and other Docket and Information Office, 401 M categories. regulatory agencies in determining Street SW, Room M–1500 (Mail Code The EPA published the initial Source subcategories. The Act does not expressly establish 6102), Waterside Mall, Washington, DC Category List in the Federal Register on a process for deletion of a subcategory 20460. July 16, 1992 (57 FR 31576); you can from the Source Category List. However, FOR FURTHER INFORMATION CONTACT: find the most recent update to the EPA construes the Act to permit Kelly Rimer, Emission Standards Source Category List in the February 12, petitions to delete a specified Division (MD–13), Office of Air Quality 1998 Federal Register (63 FR 7155). Planning and Standards, U.S. subcategory in those instances where Environmental Protection Agency, C. What Is a Source Category Delist EPA has previously created such a Research Triangle Park, NC 27711, Petition? subcategory within the applicable source category. telephone (919) 541–2962, electronic A source category delist petition is a mail address: [email protected]. formal request to the EPA from an E. How Does EPA Review a Petition To individual or group to remove a specific I. Introduction Delist a Source Category or source category from the Source Subcategory? A. What Are Hazardous Air Pollutants? Category List. The removal of a source The petition review process proceeds Hazardous air pollutants include a category from the list eliminates it from in two phases: a completeness wide variety of organic and inorganic consideration in EPA’s program to determination and a technical review. substances released from large and promulgate MACT standards. During the completeness determination, small industrial operations, fossil fuel Any group or person may petition the we conduct a broad review of the combustion, gasoline and diesel- EPA to delete a source category from the petition to determine whether or not all powered vehicles, and many other Source Category List. The Administrator the necessary subject areas are sources. The HAPs have been associated must grant or deny a petition within 12 addressed and whether reasonable with a wide variety of adverse health months of receiving a complete petition. information and analyses are presented effects, including cancer, neurological Section 112(c)(9)(B) provides that the for each of these subject areas. Once the effects, reproductive effects, and Administrator may delete a source petition is determined to be complete, developmental effects. The health category from the Source Category List we place a notice of receipt of a effects associated with the various HAPs if she determines that no source in the complete petition in the Federal may differ depending upon the toxicity category: Register and commence the technical of the individual HAP and the particular 1. Emits carcinogens in amounts that review phase of our decision-making circumstances of exposure, such as the may result in a lifetime risk of cancer process. amount of chemical present, the length exceeding one in a million to the That Federal Register notice of time a person is exposed, and the individual most exposed; announcing receipt of a complete stage in life of the person when the 2. Emits noncarcinogens in amounts petition also announces a public exposure occurs. The list of HAPs can that exceed an ample margin of safety to comment period on the petition. The be found in section 112(b)(1) of the Act. protect the public health; and technical review involves a more The HAPs list provides the basis for 3. Emits HAPs in amounts that will thorough scientific review of the research, regulation, and other related result in adverse environmental effects. petition to determine whether the data, VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56495 analyses, interpretations, and judicial review as provided in section ‘‘ends’’ (e.g., can tops with push/pull conclusions in the petition are 307(b) of the Act. tab) line as part of the on-site appropriate and technically sound. The manufacturing operations, and there are II. Decision To Subcategorize technical review will also determine three ‘‘ends’’ only facilities that produce whether or not the petition appears to On November 4, 1996, we received a ends for two-piece beer and beverage satisfy the necessary requirements of request from CMI to create a two-piece cans. Can ‘‘ends’’ are not included in section 112(c)(9)(B) and to provide beer and beverage can subcategory this subcategory and will be addressed adequate support for a decision to delist within the Metal Can (Surface Coating) separately. the source category or subcategory. All source category. We reviewed the Our analysis of existing metal can comments and data submitted during request to subcategorize and conducted manufacturing and surface coating the public comment period are our own analysis of existing metal can operations resulted in the decision to considered during the technical review. manufacturing and surface coating establish a subcategory for two-piece The Agency considers the following operations. Based on the information aluminum beer and beverage cans. This information relevant to the evaluation of presented by CMI and on our analysis subcategory includes all coating; any petition: of the source category, we determined cleaning; and associated (i.e., storage, 1. Identification of sources included that designating two-piece beer and mixing, transfer, handling, surface in the source category; beverage cans as a subcategory was preparation (can washers), and appropriate under the authority 2. Estimation of emissions from wastewater) operations related to can described below and for the following identified sources; bodies, except ends. reasons. 3. Estimation of ambient levels, either In general, we make the decision to As provided by section 112(e)(4), our modeled or measured, of the emitted establish subcategories within a source decision to create the specified HAPs; category as part of the process of subcategory is not a final Agency action 4. Assessment of the toxicity of developing a MACT standard applicable and as such is not reviewable at this chemicals being released; and to that category. In establishing time. The decision to create the 5. Evaluation of the impact to subcategories, we typically consider specified subcategory will be final and humans, plants, and animals from such factors such as process operations, subject to review only at such time as emissions (e.g., cancer, noncancer emission characteristics, control device we decide to delete the subcategory or effects, ecological effects). applicability, and opportunities for when we promulgate a MACT standard pollution prevention. For the two-piece applicable to the subcategory. In the F. How Is the Decision To Delist a event that we decide to deny the present Source Category or Sub-Category Made? aluminum beer and beverage can subcategory of the metal can industry, petition to delist this subcategory, we The decision to either grant or deny the distinction is based primarily on may reconsider our decision on a petition to delist a category or differences in the process operations subcategorization during subsequent subcategory is made after a (e.g., types of coatings, inks and solvents development of a MACT standard for comprehensive technical review of both used); associated process equipment; the Metal Can (surface coating) category. the petition and the information and process configurations (e.g., overall III. Completeness Determination and received from the public to determine process line size and facility layout). Request for Public Comment whether the petition appears to satisfy A two-piece beer and beverage can the requirements of section 112(c)(9)(B) subcategory is consistent with existing On November 4, 1996, the CMI of the Act. new source performance standards and submitted a petition to remove the two- The EPA may modify the Source control technology guideline piece can subcategory from the Source Category List without rulemaking in approaches. Subpart WW of 40 CFR part Category List. The EPA reviewed the instances where we conclude that a 63 addresses volatile organic compound initial petition to delete the subcategory category or subcategory did not emissions (many of which are also listed and determined that additional originally meet or no longer meets the as HAP) and is specifically titled: information was needed on several of quantitative emission criteria for ‘‘Standards of Performance for the the HAPs emitted by this subcategory in inclusion on the list. However, in Beverage Can Surface Coating Industry’’ order for the petition to be complete. instances where we delete a category or and defines beverage can as ‘‘any two- The petitioner submitted additional subcategory based on the risk criteria set piece steel or aluminum container in documents from 1997 through April forth in section 112(c)(9)(B), we have which soft drinks or beer, including 1999 to address the information gaps. determined that it is appropriate to malt liquor, are packaged’’ and two- After reviewing all of the utilize rulemaking procedures. Thus, if piece can as ‘‘any beverage can that supplemental information, we the Administrator decides to grant a consists of a body manufactured from a determined that the essential subject petition to delist a category or single piece of steel and aluminum.’’ areas had been addressed, and that the subcategory under this provision, EPA Metal can surface coating operations petition is complete and ready for will publish a notice of proposed are differentiated by the type of technical review. The EPA has therefore rulemaking in the Federal Register. product(s) stored inside the can which determined that the petition was That notice will propose to remove the determine the types of coatings applied complete as of the date of the last source category or subcategory from the to the interior/exterior surfaces of the supplemental submission on April 21, Source Category List and present the can. The manufacturing and coating 1999. The EPA must act to grant or deny reasoning for doing so. processes equipment configuration this petition within 12 months from that However, if the Administrator decides within the metal can industry segments date. The EPA has begun its to deny a petition under section are different in terms of configuration, comprehensive technical review of the 112(c)(9)(B), an explanation of the size, and complexity than other types of CMI petition. We invite interested reasons for denial will be published can manufacturing. None of the 61 two- members of the public to submit any instead. A notice of denial constitutes piece beverage can facilities located in additional information which may be final Agency action of nationwide scope the U.S. produce other types of cans. relevant to our analysis of whether the and applicability and is subject to There are six facilities that have an statutory criteria for delisting are met. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56496 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices IV. Description of the Petition (Table 1). The petition provides more EGBE due to the fact that it is the HAP The complete petition provided by detailed information and analysis on emitted in highest quantities, and more CMI contains the following information: ethylene glycol butyl ether (EGBE) and on formaldehyde because it is a A. Identification of 16 HAPs emitted formaldehyde than on the other HAPs. probable human carcinogen emitted in from the two-piece can subcategory The petitioner provides more data on moderate quantities. TABLE 1.ÐIDENTIFICATION OF HAPS Chemical abstract HAP service registry No. (CASRN) Ethylene glycol monobutyl ether (EGBE) ...... 111±76±2 Formaldehyde ...... 50±00±0 Diethylene glycol butyl ether (DGBE) ...... 112±34±5 Diethylene glycol ethyl ether (DGEE) ...... 111±90±0 Diethylene glycol hexyl ether (DGHE) ...... 112±59±4 Ethylene glycol hexyl ether (EGHE) ...... 112±25±4 Benzene ...... 71±43±2 Ethyl benzene ...... 100±41±4 Ethylene oxide ...... 75±21±8 Hydrogen fluoride ...... 7664±39±3 Methanol ...... 67±56±1 Methyl isobutyl ketone ...... 108±10±1 Propylene oxide ...... 75±56±9 Styrene ...... 100±42±5 Toluene ...... 108±88±3 Xylenes ...... 1330±20±7 B. For each HAP, the petitioner position, the petitioner uses as its Dated: October 8, 1999. provides summaries of and references principle source of information the Robert Perciasepe, for qualitative and quantitative human EPA’s Hazardous Substances Database. Assistant Administrator for Air and health effects information based on data For EGBE, CMI provides additional Radiation. from EPA, the State of California and information; an ecological analysis for [FR Doc. 99–27142 Filed 10–19–99; 8:45 am] from industry. For EGBE and EGBE which was also submitted to the BILLING CODE 6560±50±P formaldehyde, CMI presents analyses of Agency under the petition to remove human health effects studies. EGBE from the HAP list. The petitioner C. The petition includes emissions combines that analysis with a ENVIRONMENTAL PROTECTION estimates for all HAPs listed in Table 1 discussion of potential adverse impacts AGENCY and identifies the route of exposure of of EGBE from two-piece can operations [FRL±6460±8] potential concern as being air. To assess and finds that adverse environmental maximum off-site air concentrations of effects are unlikely to occur as a result Adequacy Status of Lake and Porter HAPs, CMI uses a tiered modeling of EGBE emissions from the Counties, Indiana Submitted Ozone approach described in a 1992 EPA subcategory. Attainment Demonstration for document, ‘‘A Tiered Approach for F. The petition includes an Transportation Conformity Purposes Assessing Risks due to Emissions of uncertainty analysis which considers Hazardous Air Pollutants’’ (EPA–450/4– AGENCY: Environmental Protection emissions projections, emissions 92–001). Tiered modeling involves the Agency (EPA). modeling, exposure analysis, mixtures use of successive modeling techniques ACTION: Notice of inadequacy. and co-location of facilities. to move from conservative ‘‘worst case’’ estimates of the ambient concentrations The petition states that the data and SUMMARY: In this document, EPA is of a substance emitted from a source parameters employed in each step of notifying the public that EPA has found toward more realistic site specific risk assessment embody some degree of that the Lake and Porter Counties, estimates of the ambient concentrations. uncertainty that could affect the Indiana ozone attainment demonstration D. For all identified HAPs, the conclusions drawn. The petitioner has does not contain adequate mobile petitioner provides numerical estimates attempted to reduce the likelihood of source emission budgets. On March 2, of risks to humans. underestimation by using upper bound 1999, the D.C. Circuit Court ruled that E. The CMI’s ecological assessment estimates, parameters and assumptions submitted State Implementation Plans addresses whether HAP emissions are which result in maximum exposure (SIPs) cannot be used for conformity likely to result in adverse environmental estimates that do not exceed a health- determinations until EPA has effects. The analysis and discussion based exposure limit for any emitted affirmatively found them adequate. consider emission levels, atmospheric HAP. To further reduce the likelihood of Since the April 30, 1998, submittal does fate, biodegradation and underestimating risks, the petition not contain adequate budgets, this bioconcentration, and conclude that all considers additivity by summing the attainment demonstration can not be HAP emissions from this subcategory potential impacts of all of the emitted used for future conformity are unlikely to have an adverse effect on noncarcinogens and by summing determinations. aquatic biota, terrestrial wildlife, or potential impacts of all emitted FOR FURTHER INFORMATION CONTACT: The other natural resources. To support this carcinogens. finding and the response to comments VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56497 will be available at EPA’s conformity Authority: 42 U.S.C. 7401–7671 q. http://www.epa.gov/oms/traq, (once website: Dated: October 7, 1999. there, click on the ‘‘Conformity’’ http://www.epa.gov/oms/traq, (once David A. Ullrich, button, then look for ‘‘Adequacy there, click on the ‘‘Conformity’’ Acting Regional Administrator, Region 5. Review of SIP Submissions for button, then look for ‘‘Adequacy [FR Doc. 99–27387 Filed 10–19–99; 8:45 am] Conformity’’). Review of SIP Submissions for BILLING CODE 6560±50±P Transportation conformity is required Conformity’’). by section 176(c) of the Clean Air Act. Ryan Bahr, environmental engineer, EPA’s conformity rule requires that Regulation Development Section (AR– ENVIRONMENTAL PROTECTION transportation plans, programs, and 18J), Air Programs Branch, Air and AGENCY projects conform to state air quality Radiation Division, United States [FRL±6460±7] implementation plans and establishes Environmental Protection Agency, the criteria and procedures for Region 5, 77 West Jackson Boulevard, Adequacy Status of Milwaukee, WI determining whether or not they do. Chicago, Illinois 60604, (312) 353–4366, Submitted Ozone Attainment Conformity to a SIP means that [email protected]. Demonstration for Transportation transportation activities will not SUPPLEMENTARY INFORMATION: Conformity Purposes produce new air quality violations, worsen existing violations, or delay Background AGENCY: Environmental Protection timely attainment of the national Agency (EPA). Throughout this document, whenever ambient air quality standards. ‘‘we’’, ‘‘us’’ or ‘‘our’’ is used, we mean ACTION: Notice of Inadequacy. The criteria by which we determine whether a SIP’s motor vehicle emission EPA. Today’s notice is simply an SUMMARY: In this document, EPA is budgets are adequate for conformity announcement of a finding that we have notifying the public that EPA has found purposes are outlined in 40 CFR already made. EPA Region 5 sent a letter that the Milwaukee, Wisconsin ozone 93.118(e)(4). Please note that an to the Indiana Department of attainment demonstration does not adequacy review is separate from EPA’s Environmental Management on contain adequate mobile source completeness review, and it also should September 28, 1999, stating that the emission budgets. On March 2, 1999, not be used to prejudge EPA’s ultimate Lake and Porter Counties submitted the DC Circuit Court ruled that ozone attainment demonstration does submitted State Implementation Plans approval of the SIP. Even if we find a not contain adequate mobile source (SIPs) cannot be used for conformity budget adequate, the SIP could later be emission budgets. This finding will also determinations until EPA has disapproved. We’ve described our process for be announced on EPA’s conformity affirmatively found them adequate. determining the adequacy of submitted website: http://www.epa.gov/oms/traq, Since the April 30, 1998, submittal does SIP budgets in guidance (May 14, 1999 (once there, click on the ‘‘Conformity’’ not contain adequate budgets, this memorandum titled ‘‘Conformity button, then look for ‘‘Adequacy Review attainment demonstration can not be of SIP Submissions for Conformity’’). used for future conformity Guidance on Implementation of March Transportation conformity is required determinations. 2, 1999 Conformity Court Decision’’). We followed this guidance in making by section 176(c) of the Clean Air Act. FOR FURTHER INFORMATION CONTACT: The our adequacy determination. EPA’s conformity rule requires that finding and the response to comments transportation plans, programs, and will be available at EPA’s conformity Authority: 42 U.S.C. 7401–7671q. projects conform to state air quality website: http://www.epa.gov/oms/traq, Dated: October 7, 1999. implementation plans and establishes (once there, click on the ‘‘Conformity’’ David A. Ullrich, the criteria and procedures for button, then look for ‘‘Adequacy Review Acting Regional Administrator, Region 5. determining whether or not they do. of SIP Submissions for Conformity’’). [FR Doc. 99–27388 Filed 10–19–99; 8:45 am] Conformity to a SIP means that Michael G. Leslie, Regulation BILLING CODE 6560±50±P transportation activities will not Development Section (AR–18J), Air produce new air quality violations, Programs Branch, Air and Radiation worsen existing violations, or delay Division, United States Environmental ENVIRONMENTAL PROTECTION timely attainment of the national Protection Agency, Region 5, 77 West AGENCY ambient air quality standards. Jackson Boulevard, Chicago, Illinois, The criteria by which we determine 60604, (312) 353–6680, [FRL±6460±9] whether a SIP’s motor vehicle emission [email protected]. Adequacy Status of Chicago, IL budgets are adequate for conformity SUPPLEMENTARY INFORMATION: purposes are outlined in 40 CFR Submitted Ozone Attainment 93.118(e)(4). Please note that an Background: Demonstration for Transportation adequacy review is separate from EPA’s Throughout this document, whenever Conformity Purposes completeness review, and it also should ‘‘we’’, ‘‘us’’ or ‘‘our’’ is used, we mean AGENCY: Environmental Protection not be used to prejudge EPA’s ultimate EPA. Today’s notice is simply an Agency (EPA). approval of the SIP. Even if we find a announcement of a finding that we have ACTION: Notice of Inadequacy. budget adequate, the SIP could later be already made. EPA Region 5 sent a letter disapproved. to the Wisconsin Department of Natural SUMMARY: In this document, EPA is We’ve described our process for Resources on September 28, 1999, notifying the public that EPA has found determining the adequacy of submitted stating that the Milwaukee, Wisconsin that the Chicago, Illinois ozone SIP budgets in guidance (May 14, 1999 submitted ozone attainment attainment demonstration does not memorandum titled ‘‘Conformity demonstration does not contain contain adequate mobile source Guidance on Implementation of March adequate mobile source emission emission budgets. On March 2, 1999, 2, 1999 Conformity Court Decision’’). budgets. This finding will also be the D.C. Circuit Court ruled that We followed this guidance in making announced on EPA’s conformity submitted State Implementation Plans our adequacy determination. website: (SIPs) cannot be used for conformity VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56498 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices determinations until EPA has SIP budgets in guidance (May 14, 1999 and the Equipment Leaks Project. The affirmatively found them adequate. memorandum titled ‘‘Conformity workgroup also plans to discuss Since the April 30, 1998, submittal does Guidance on Implementation of March compliance goals for the petroleum not contain adequate budgets, this 2, 1999 Conformity Court Decision’’). refining industry and regulatory options attainment demonstration can not be We followed this guidance in making for potential alternate leak detection and used for future conformity our adequacy determination. repair work practice protocols. A public determinations. Authority: 42 U.S.C. 7401–7671q. comment period has been scheduled FOR FURTHER INFORMATION CONTACT: The from approximately 1:00 pm until 2:00 Dated: October 7, 1999 finding and the response to comments pm CDT on Thursday, November 4, will be available at EPA’s conformity David A. Ullrich, 1999. Acting Regional Administrator, Region 5. website: http://www.epa.gov/oms/traq, SUPPLEMENTARY INFORMATION: NACEPT (once there, click on the ‘‘Conformity’’ [FR Doc. 99–27389 Filed 10–19–99; 8:45 am] is a federal advisory committee under button, then look for ‘‘Adequacy Review BILLING CODE 6560±50±P the Federal Advisory Committee Act, of SIP Submissions for Conformity’’). Public Law 92463. NACEPT provides Patricia Morris, Environmental advice and recommendations to the Scientist, Regulation Development ENVIRONMENTAL PROTECTION Administrator and other EPA officials Section (AR–18J), Air Programs Branch, AGENCY on a broad range of domestic and Air and Radiation Division, United [FRL±6461±1] international environmental policy States Environmental Protection issues. NACEPT consists of a Agency, Region 5, 77 West Jackson The National Advisory Council for representative cross-section of EPA’s Boulevard, Chicago, Illinois 60604, Environmental Policy and Technology partners and principle constituents who (312) 353–8656, (NACEPT); New Standing Committee provide advice and recommendations [email protected]. on Sectors on policy issues and serve as a sounding SUPPLEMENTARY INFORMATION: AGENCY: Environmental Protection board for new strategies that the Agency Background: Throughout this Agency (EPA). is developing. document, whenever ‘‘we’’, ‘‘us’’ or In follow-up to completion of work by ACTION: Notification of Public Advisory EPA’s Common Sense Initiative (CSI) ‘‘our’’ is used, we mean EPA. Today’s NACEPT Standing Committee on Council, the Administrator has asked notice is simply an announcement of a Sectors Workgroup meeting; open NACEPT to create a new Standing finding that we have already made. EPA meeting. Region 5 sent a letter to the Illinois Committee on Sectors. This will provide Environmental Protection Agency on SUMMARY: Pursuant to the Federal a continuing Federal Advisory September 28, 1999, stating that the Advisory Committee Act, Public Law Committee forum from which the Chicago, Illinois submitted ozone 92–463, notice is hereby given that the Agency can continue to receive valuable attainment demonstration does not Standing Committee on Sectors multi-stakeholder advise and contain adequate mobile source workgroup will meet on the date and recommendations on sector approaches. emission budgets. This finding will also time described below. The meeting is Based on the lessons learned in CSI be announced on EPA’s conformity open to the public. Seating at the and many other sector based programs, website: http://www.epa.gov/oms/traq, meeting will be a first-come basis and the Agency has developed a Sector (once there, click on the ‘‘Conformity’’ limited time will be provided for public Based Environmental Protection Action button, then look for ‘‘Adequacy Review comment. For further information Plan to reinforce and expand sector of SIP Submissions for Conformity’’). concerning this meeting, please contact based approaches to achieving Transportation conformity is required the individual listed with the environmental results. The Standing by section 176(c) of the Clean Air Act. announcement below. Committee on Sectors will, through EPA’s conformity rule requires that Petroleum Refining Sector Workgroup NACEPT (the Council): (1) Continue to transportation plans, programs, and Meeting—November 3–4, 1999. support the on-going CSI work, (2) projects conform to state air quality Notice is hereby given that the support the implementation of the implementation plans and establishes Environmental Protection Agency will Action Plan, as noted above, and (3) the criteria and procedures for hold an open meeting of the National serve as a vehicle to get stakeholder determining whether or not they do. Advisory Council for Environmental reaction and input on sector based Conformity to a SIP means that Policy and Technology (NACEPT) issues in a timely way. transportation activities will not Petroleum Refining Sector Workgroup For further information concerning produce new air quality violations, on November 3 and 4, 1999. A this meeting of the Petroleum Refining worsen existing violations, or delay Concurrent project team meeting will be Sector workgroup, please contact either timely attainment of the national held from 9:00 am until 4:30 pm CDT Craig Weeks, Designated Federal Officer ambient air quality standards. on Wednesday, November 3, 1999. The (DFO), at US EPA Region 6 (6EN), 1445 The criteria by which we determine full workgroup will meet from 8:30 am Ross Avenue, Dallas, TX 75202–2733, whether a SIP’s motor vehicle emission until 4:30 pm CDT on Thursday, by telephone at 214–665–7505 or E-mail budgets are adequate for conformity November 4, 1999. The meeting will be at [email protected] or Steve purposes are outlined in 40 CFR held at the Holiday Inn Hotel Souders, Alternate DFO, at US EPA 93.118(e)(4). Please note that an Downtown—Superdome, 330 Loyola (5306W), 401 M Street, SW, adequacy review is separate from EPA’s Avenue, New Orleans, Louisiana. The Washington, DC 20460, by telephone at completeness review, and it also should hotel telephone number is 504–581– 703–308–8431 or E-mail at not be used to prejudge EPA’s ultimate 1600. [email protected]. approval of the SIP. Even if we find a The workgroup meeting agenda Inspection of Subcommittee budget adequate, the SIP could later be includes an update on the status of the Documents: Documents relating to the disapproved. Accidental Release Information above topics will be publicly available We’ve described our process for Communication Project, Refinery Air at the meeting. Thereafter, Key determining the adequacy of submitted Information Reporting System Project, documents and the minutes of the VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56499 meeting will be available electronically Arlington, VA, from 8:30 a.m. to 4 p.m., on the web site, or by calling the DFO. Monday through Friday, excluding legal NACEPT Standing Committee on Cat- NAICS Examples of poten- holidays. The PIRIB telephone number Sectors Subcommittee information can egories codes tially affected entities is (703) 305–5805. be accessed electronically on our web Industry C. How and to Whom Do I Submit site at http.//www.epa.gov/sectors. 112 Animal production Comments? 311 Food manufacturing Dated: October 4, 1999. You may submit comments through Gregory Ondich, 32532 Pesticide manufac- turing the mail, in person, or electronically. To Acting Designated Federal Officer. ensure proper receipt by EPA, it is [FR Doc. 99–27386 Filed 10–19–99; 8:45 am] imperative that you identify docket This listing is not intended to be BILLING CODE 6560±50±P control number OPP–30483 in the exhaustive, but rather provides a guide subject line on the first page of your for readers regarding entities likely to be response. ENVIRONMENTAL PROTECTION affected by this action. Other types of 1. By mail. Submit your comments to: AGENCY entities not listed in the table could also Public Information and Records be affected. The North American Integrity Branch (PIRIB), Information Industrial Classification System OPP±30483; FRL±6387±5 Resources and Services Division (NAICS), codes have been provided to (7502C), Office of Pesticide Programs Pesticide Products; Registration assist you and others in determining (OPP), Environmental Protection Application whether or not this action might apply Agency, 401 M St., SW., Washington, to certain entities. If you have questions DC 20460. AGENCY: Environmental Protection regarding the applicability of this action 2. In person or by courier. Deliver Agency (EPA). to a particular entity, consult the person your comments to: Public Information listed in the ‘‘FOR FURTHER and Records Integrity Branch (PIRIB), ACTION: Notice. INFORMATION CONTACT.’’ Information Resources and Services Division (7502C), Office of Pesticide SUMMARY: This notice announces receipt B. How Can I Get Additional Programs (OPP), Environmental of an application to register a pesticide Information, Including Copies of this Protection Agency, Rm. 119, CM #2, product containing a new active Document and Other Related 1921 Jefferson Davis Highway, ingredient not included in any Documents? Arlington, VA. The PIRIB is open from previously registered product pursuant 1. Electronically. You may obtain 8:30 a.m. to 4 p.m., Monday through to the provisions of section 3(c)(4) of the electronic copies of this document, and Friday, excluding legal holidays. The Federal Insecticide, Fungicide, and certain other related documents that PIRIB telephone number is (703) 305– Rodenticide Act (FIFRA), as amended. might be available electronically, from 5805. DATES: Written comments, identified by the EPA Internet Home Page at http:// 3. Electronically. You may submit the docket control number OPP–30483, www.epa.gov/. To access this your comments electronically by e-mail must be received on or before November document, on the Home Page select to: ‘‘[email protected],’’ or you can 19, 1999. ‘‘Laws and Regulations’’ and then look submit a computer disk as described up the entry for this document under ADDRESSES: Comments may be above. Do not submit any information the ‘‘Federal Register--Environmental submitted by mail, electronically, or in electronically that you consider to be Documents.’’ You can also go directly to person. Please follow the detailed CBI. Avoid the use of special characters the Federal Register listings at http:// instructions for each method as and any form of encryption. Electronic www.epa.gov/fedrgstr/. provided in Unit I. of the submissions will be accepted in 2. In person. The Agency has ‘‘SUPPLEMENTARY INFORMATION.’’ Wordperfect 5.1/6.1 or ASCII file established an official record for this To ensure proper receipt by EPA. It is format. All comments in electronic form action under docket control number imperative that you identify docket must be identified by docket control OPP–30483. The official record consists control number OPP–30483 in the number OPP–30483. Electronic of the documents specifically referenced subject line on the first page of your comments may also be filed online at in this action, any public comments response. many Federal Depository Libraries. received during an applicable comment FOR FURTHER INFORMATION CONTACT: Ann period, and other information related to D. How Should I Handle CBI that I Want Sibold, Registration Division (7505C), this action, including any information to Submit to the Agency? Office of Pesticide Programs, claimed as confidential business Do not submit any information Environmental Protection Agency, 401 information (CBI). This official record electronically that you consider to be M St., SW., Washington, DC 20460; includes the documents that are CBI. You may claim information that telephone number: 703 305–6502; and physically located in the docket, as well you submit to EPA in response to this e-mail address: [email protected]. as the documents that are referenced in document as CBI by marking any part or SUPPLEMENTARY INFORMATION: those documents. The public version of all of that information as CBI. the official record does not include any Information so marked will not be I. General Information information claimed as CBI. The public disclosed except in accordance with A. Does this Action Apply to Me? version of the official record, which procedures set forth in 40 CFR part 2. includes printed, paper versions of any In addition to one complete version of You may be affected by this action if electronic comments submitted during the comment that includes any you are an agricultural producer, food an applicable comment period, is information claimed as CBI, a copy of manufacturer, or pesticide available for inspection in the Public the comment that does not contain the manufacturer. Potentially affected Information and Records Integrity information claimed as CBI must be categories and entities may include, but Branch (PIRIB), Rm. 119, Crystal Mall 2 submitted for inclusion in the public are not limited to: (CM #2), 1921 Jefferson Davis Hwy., version of the official record. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56500 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Information not marked confidential II. Registration Application ENVIRONMENTAL PROTECTION will be included in the public version AGENCY of the official record without prior EPA received an application as notice. If you have any questions about follows to register a pesticide product [OPP±30482; FRL±6382±8] CBI or the procedures for claiming CBI, containing an active ingredient not Pesticide Products; Registration please consult the person identified in included in any previously registered Applications the ‘‘FOR FURTHER INFORMATION product pursuant to the provision of CONTACT.’’ section 3(c)(4) of FIFRA. Notice of AGENCY: Environmental Protection receipt of this application does not E. What Should I Consider as I Prepare Agency (EPA). imply a decision by the Agency on the My Comments for EPA? ACTION: Notice. application. You may find the following File Symbol: 241–GOT. Applicant: SUMMARY: This notice announces receipt suggestions helpful for preparing your American Cyanamid Company, of applications to register pesticide comments: products containing new active 1. Explain your views as clearly as Agricultural Research Division, P.O. Box 400 Princeton, NJ 08543 00. Product ingredients not included in any possible previously registered products pursuant Name: Chlorfenapyr Insecticide Cattle 2. Describe any assumptions that you to the provisions of section 3(c)(4) of the Ear Tags. Active Ingredient: 4-bromo-2- used. Federal Insecticide, Fungicide, and 3. Provide copies of any technical (chlorophenyl)-1-(ethoxymethyl)-5- Rodenticide Act (FIFRA), as amended. information and/or data you used that (trifluoromethyl)-1H-pyrrole-3- DATES: Written comments, identified by support views. carbonitrile at 30%. Proposed the docket control number OPP–30482, 4. If you estimate potential burden or classification/Use: For use to control must be received on or before November costs, explain how you arrived at the horn flies and lice on cattle. 19, 1999. estimate that you provide. Authority: 7 U.S.C. 136. 5. Provide specific examples to ADDRESSES: Comments may be submitted by mail, electronically, or in illustrate your concerns. List of Subjects 6. Offer alternative ways to improve person. Please follow the detailed the registration activity. Environmental protection, Pesticides instructions for each method as 7. Make sure to submit your and pest. provided in Unit I. of the ‘‘SUPPLEMENTARY INFORMATION.’’ comments by the deadline in this Dated: October 8, 1999. notice. To ensure proper receipt by EPA, it is 8. To ensure proper receipt by EPA, Richard P. Keigwin, Jr., imperative that you identify docket be sure to identify the docket control control number OPP–30482 in the number assigned to this action in the Acting Director, Registration Division, Office subject line on the first page of your of Pesticide Programs. subject line on the first page of your response. response. You may also provide the [FR Doc. 99–27396 Filed 10–19–99; 8:45 am] FOR FURTHER INFORMATION CONTACT: The name, date, and Federal Register BILLING CODE 6560±50±F Product Managers, Registration Division citation. (7505C), listed in the table below: Product Managers Office location/telephone Address Dani Daniel Rm. 211, CM #2, 703±305±5409, e-mail: [email protected]. 1921 Jefferson Davis Hwy, Ar- lington, VA Dennis McNeilly Rm. 213, CM #2, 703±308±6742, e-mail: [email protected]. Do. Susan Stanton Rm. 239, CM #2, 703±305±5218, e-mail: [email protected]. Do. Mary Waller (PM-21) Rm. 249, CM #2, 703±305±9354, e-mail: [email protected]. Do. SUPPLEMENTARY INFORMATION: This listing is not intended to be B. How Can I Get Additional exhaustive, but rather provides a guide Information, Including Copies of this I. General Information for readers regarding entities likely to be Document and Other Related A. Does this Action Apply to Me? affected by this action. Other types of Documents? You may be affected by this action if entities not listed in the table could also be affected. The North American 1. Electronically. You may obtain you are an agricultural producer, food electronic copies of this document, and Industrial Classification System manufacturer, or pesticide certain other related documents that (NAICS) codes have been provided to manufacturer. Potentially affected might be available electronically, from assist you and others in determining categories and entities may include, but the EPA Internet Home Page at http:// whether or not this action might apply are not limited to: www.epa.gov/. To access this to certain entities. If you have questions document, on the Home Page select regarding the applicability of this action ‘‘Laws and Regulations’’ and then look to a particular entity, consult the person up the entry for this document under Cat- NAICS Samples of potentially listed under ‘‘FOR FURTHER egories codes affected entities the ‘‘Federal Register--Environmental INFORMATION CONTACT.’’ Documents.’’ You can also go directly to Industry 111 Crop production the Federal Register listings at http:// 112 Animal production www.epa.gov/fedrgstr/. 311 Food manufacturing 2. In person. The Agency has 32532 Pesticide manufac- turing established an official record for this action under docket control number VerDate 12-OCT-99 19:05 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56501 OPP–30482. The official record consists number OPP–30482. Electronic applications does not imply a decision of the documents specifically referenced comments may also be filed online at by the Agency on the applications. in this action, any public comments many Federal Depository Libraries. Products Containing Active Ingredients received during an applicable comment D. How Should I Handle CBI that I Want not Included in any Previously period, and other information related to to Submit to the Agency? Registered Products this action, including any information claimed as confidential business Do not submit any information 1. File Symbol: 38719–T. Applicant: information (CBI). This official record electronically that you consider to be BOC Gases America, 575 Mountain includes the documents that are CBI. You may claim information that Ave., Murray Hill, NJ 771–1375. Product physically located in the docket, as well you submit to EPA in response to this name: ECO2 FUME Fumigant Gas. as the documents that are referenced in document as CBI by marking any part or Insecticide. Active ingredient: those documents. The public version of all of that information as CBI. Phosphine (PH3) at 2%. Proposed the official record does not include any Information so marked will not be classification/Use: Restricted. For use information claimed as CBI. The public disclosed except in accordance with against insects which infest nonfood version of the official record, which procedures set forth in 40 CFR part 2. commodities and structures. Type includes printed, paper versions of any In addition to one complete version of registration: Conditional. electronic comments submitted during the comment that includes any 2. File Symbol: 100–OLL. Applicant: an applicable comment period, is information claimed as CBI, a copy of Novartis Crop Protection, Inc., P.O. Box available for inspection in the Public the comment that does not contain the 18300, Greensboro, NC 27419. Product Information and Records Integrity information claimed as CBI must be name: Flagship. Insecticide/Miticide. Branch (PIRIB), Rm. 119, Crystal Mall submitted for inclusion in the public Active ingredient: Thiamethoxam 4H- #2, 1921 Jefferson Davis Hwy., version of the official record. 1,3,5-oxadiazin-4-imine, 3-[(2-chloro-5- Arlington, VA, from 8:30 a.m. to 4 p.m., Information not marked confidential thiazolyl)methyl]tetrahydro-5-methyl-N- Monday through Friday, excluding legal will be included in the public version nitro- at 25%. Proposed classification/ holidays. The PIRIB telephone number of the official record without prior Use: None. For foliar and systemic is (703) 305–5805. notice. If you have any questions about control of insect pests in greenhouses and ornamentals. Type registration: C. How and to Whom Do I Submit CBI or the procedures for claiming CBI, please consult the person identified Conditional. Comments? 3. File Symbol: 3125–LGG. Applicant: under ‘‘FOR FURTHER INFORMATION Bayer Corporation, 8400 Hawthorne Rd., You may submit comments through CONTACT.’’ the mail, in person, or electronically. To P.O. Box 4913, Kansas City, MO 64120. ensure proper receipt by EPA, it is E. What Should I Consider as I Prepare Product name: Flucarbazone-Sodium imperative that you identify docket My Comments for EPA? Technical Herbicide. Herbicide. Active ingredient: Flucarbazone-sodium, 4,5- control number OPP–30482 in the You may find the following dihydro-3-methoxy-4-methyl-5-oxo-N- subject line on the first page of your suggestions helpful for preparing your [[2-(trifluoromethoxy)phenyl]sulfonyl]- response. comments: 1. By mail. Submit your comments to: 1H-1,2,4-triazole-1-carboxamide, 1. Explain your views as clearly as Public Information and Records sodium salt at 95.6%. Proposed possible. Integrity Branch (PIRIB), Information classification/Use: None. For use only in Resources and Services Division 2. Describe any assumptions that you the manufacturing of herbicides. (7502C), Office of Pesticide Programs used. 4. File Symbol: 3125–LGL. Applicant: (OPP), Environmental Protection 3. Provide copies of any technical Bayer Corporation. Product name: Agency, 401 M St., SW., Washington, information and/or data you used that Flucarbazone-Sodium 70% Water DC 20460. support your views. Dispersible Granular Herbicide. 2. In person or by courier. Deliver 4. If you estimate potential burden or Herbicide. Active ingredient: your comments to: Public Information costs, explain how you arrived at the Flucarbazone-sodium, 4,5-dihydro-3- and Records Integrity Branch (PIRIB), estimate that you provide. methoxy-4-methyl-5-oxo-N-[[2- Information Resources and Services 5. Provide specific examples to (trifluoromethoxy)phenyl]sulfonyl]-1H- Division (7502C), Office of Pesticide illustrate your concerns. 1,2,4-triazole-1-carboxamide, sodium Programs (OPP), Environmental 6. Offer alternative ways to improve salt at 70%. Proposed classification/Use: Protection Agency, Rm. 119, Crystal the registration activity. None. For post emergence control of Mall #2, 1921 Jefferson Davis Highway, 7. Make sure to submit your wild oat and green foxtail in all types of Arlington, VA. The PIRIB is open from comments by the deadline in this spring wheat. 8:30 a.m. to 4 p.m., Monday through notice. 5. File Symbol: 3125–LGU. Applicant: Friday, excluding legal holidays. The 8. To ensure proper receipt by EPA, Bayer Corporation. Product name: PIRIB telephone number is (703) 305– be sure to identify the docket control Flucarbazone-Sodium 70% Water 5805. number assigned to this action in the Dispersible Granular In Water Soluble 3. Electronically. You may submit subject line on the first page of your Packets. Herbicide. Active ingredient: your comments electronically by e-mail response. You may also provide the Flucarbazone-sodium, 4,5-dihydro-3- to: ‘‘[email protected],’’ or you can name, date, and Federal Register methoxy-4-methyl-5-oxo-N-[[2- submit a computer disk as described citation. (trifluoromethoxy)phenyl]sulfonyl]-1H- above. Do not submit any information 1,2,4-triazole-1-carboxamide, sodium II. Registration Applications electronically that you consider to be salt at 70%. Proposed classification/Use: CBI. Avoid the use of special characters EPA received applications as follows None. For post emergence control of and any form of encryption. Electronic to register pesticide products containing wild oat and green foxtail in all types of submissions will be accepted in active ingredients not included in any spring wheat. WordPerfect 6.1/8.0 or ASCII file previously registered products pursuant 6. File Symbol: 60063–RR. Applicant: format. All comments in electronic form to the provision of section 3(c)(4) of Sipcam Agro USA, Inc., 70 Mansell must be identified by docket control FIFRA. Notice of receipt of these Court, Suite 230, Roswell, GA 30076. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56502 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Product name: Tetraconazole Technical. ‘‘SUPPLEMENTARY INFORMATION’’ the Federal Register listings at http:// Fungicide. Active ingredient: section. To ensure proper receipt by www.epa.gov/fedrgstr/. Tetraconazole: [1-[2,(2,4- EPA, it is imperative that you identify 2. In person. The Agency has dichlorophenyl)-3-(1,1,2,2- docket control number PF–895 in the established an official record for this tetrafluoroethoxy)propyl]-1H-1,2,4 subject line on the first page of your action under docket control number PF– triazole] at 97.0%. Proposed response. 895. The official record consists of the classification/Use: None. Tetraconazole FOR FURTHER INFORMATION CONTACT: By documents specifically referenced in Technical is intended for the mail: Indira Gairola, Minor Use Inert’s, this action, any public comments formulation into end-use products for & Emergency Response Branch, received during an applicable comment use on sugar beets, peanuts, and turf. Registration Division (7505C), Office of period, and other information related to Type registration: Conditional. Pesticide Programs, Environmental this action, including any information 7. File Symbol: 60063–RE. Applicant: Protection Agency, 401 M St., SW., claimed as confidential business Sipcam Agro USA, Inc. Product name: Washington, DC 20460; telephone information (CBI). This official record Eminent 125SL Fungicide. Fungicide. number: (703) 308–6379; and e-mail includes the documents that are Active ingredient: Tetraconazole: [1- address: [email protected]. physically located in the docket, as well as the documents that are referenced in [2,(2,4-dichlorophenyl)-3-(1,1,2,2- SUPPLEMENTARY INFORMATION: tetrafluoroethoxy)propyl]-1H-1,2,4 those documents. The public version of triazole] at 11.6%. Proposed I. General Information the official record does not include any information claimed as CBI. The public classification/Use: None. Eminent A. Does this Action Apply to Me? 125SL is intended for the control of version of the official record, which Cercospora leaf spot and powdery You may be affected by this action if includes printed, paper versions of any mildew disease of sugar beets; early and you are an agricultural producer, food electronic comments submitted during late leaf spot, rust, web blotch, and manufacturer or pesticide manufacturer. an applicable comment period, is southern blight of peanuts and dollar Potentially affected categories and available for inspection in the Public spot, copper spot, rust, Southern blight, entities may include, but are not limited Information and Records Integrity brown patch, red thread, anthracnose, to: Branch (PIRIB), Rm. 119, Crystal Mall2, powdery mildew, etc. diseases of turf. 1921 Jefferson Davis Highway, Type registration: Conditional. Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal List of Subjects Cat- NAICS Examples of poten- holidays. The PIRIB telephone number Environmental protection, Pesticides egories tially affected entities is (703) 305–5805. and pest. Industry 111 Crop production C. How and to Whom Do I Submit Dated: September 29, 1999. 112 Animal production Comments? Peter Caulkins, 311 Food manufacturing You may submit comments through 32532 Pesticide manufac- the mail, in person, or electronically. To Acting Director, Registration Division, Office turing of Pesticide Programs. ensure proper receipt by EPA, it is imperative that you identify docket [FR Doc. 99–27394 Filed 10–19–99; 8:45 am] This listing is not intended to be control number PF–895 in the subject BILLING CODE 6560±50±F exhaustive, but rather provides a guide line on the first page of your response. for readers regarding entities likely to be 1. By mail. Submit your comments to: affected by this action. Other types of Public Information and Records ENVIRONMENTAL PROTECTION entities not listed in the table could also Integrity Branch (PIRIB), Information AGENCY be affected. The North American Resources and Services Division [PF±895; FRL±6386±9] Industrial Classification System (7502C), Office of Pesticide Programs (NAICS) codes have been provided to (OPP), Environmental Protection Notice of Filing a Pesticide Petition to assist you and others in determining Agency, 401 M St., SW., Washington, Establish a Tolerance for Certain whether or not this action might apply DC 20460. Pesticide Chemicals in or on Food to certain entities. If you have questions 2. In person or by courier. Deliver regarding the applicability of this action your comments to: Public Information AGENCY: Environmental Protection to a particular entity, consult the person and Records Integrity Branch (PIRIB), Agency (EPA). listed in the ‘‘FOR FURTHER Information Resources and Services ACTION: Notice. INFORMATION CONTACT’’ section. Division (7502C), Office of Pesticide Programs (OPP), Environmental B. How Can I Get Additional SUMMARY: This notice announces the Protection Agency, Rm. 119, Crystal Information, Including Copies of this initial filing of a pesticide petition Mall2, 1921 Jefferson Davis Highway, Document and Other Related proposing the establishment of Arlington, VA. The PIRIB is open from Documents? regulations for residues of certain 8:30 a.m. to 4 p.m., Monday through pesticide chemicals in or on various 1. Electronically. You may obtain Friday, excluding legal holidays. The food commodities. electronic copies of this document, and PIRIB telephone number is (703) 305– DATES: Comments, identified by docket certain other related documents that 5805. control number PF–895, must be might be available electronically, from 3. Electronically. You may submit received on or before November 19, the EPA Internet Home Page at http:// your comments electronically by E-mail 1999. www.epa.gov/. To access this to: ‘‘[email protected],’’ or you can ADDRESSES: Comments may be document, on the Home Page select submit a computer disk as described submitted by mail, electronically, or in ‘‘Laws and Regulations’’ and then look above. Do not submit any information person. Please follow the detailed up the entry for this document under electronically that you consider to be instructions for each method as the ‘‘Federal Register--Environmental CBI. Avoid the use of special characters provided in Unit I.C. of the Documents.’’ You can also go directly to and any form of encryption. Electronic VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56503 submissions will be accepted in section 408 of the Federal Food, Drug, A. Residue Chemistry Wordperfect 5.1/6.1 or ASCII file and Comestic Act (FFDCA), 21 U.S.C. 1. Plant metabolism. The metabolism format. All comments in electronic form 346a. EPA has determined that this in corn was studied with radiolabeled must be identified by docket control petition contains data or information furalizole in the green house and the number PF–895. Electronic comments regarding the elements set forth in field. Parent furilazole was not found in may also be filed online at many Federal section 408(d)(2); however, EPA has not any of the corn samples. Furilazole is Depository Libraries. fully evaluated the sufficiency of the rapidly and extensively metabolized to submitted data at this time or whether D. How Should I Handle CBI That I a large number of highly polar the data supports granting of the Want to Submit to the Agency? metabolites characterized as weak petition. Additional data may be needed organic acids or residues conjugated to Do not submit any information before EPA rules on the petition. natural sugars. No parent furilazole was electronically that you consider to be found in the plants at all. CBI. You may claim information that List of Subjects 2. Analytical method. Monsanto has you submit to EPA in response to this Environmental protection, developed an analytical method using document as CBI by marking any part or Agricultural commodities, Feed gas liquid chromatography with electron all of that information as CBI. additives, Food additives, Pesticides capture detection that has a verified Information so marked will not be and pests, Reporting and recordkeeping limit of quantitation (LOQ) of 0.01 ppm disclosed except in accordance with requirements. for parent MON 13,900 in corn grain, procedures set forth in 40 CFR part 2. forage, and fodder. This method has In addition to one complete version of Dated: October 7, 1999. been validated by the Agency. the comment that includes any 3. Magnitude of residues. Monsanto information claimed as CBI, a copy of James Jones, has conducted five residue field studies the comment that does not contain the Director, Registration Division, Office of with furilazole applied pre-emergence information claimed as CBI must be Pesticide Programs. to corn at rates up to 0.75 pound per submitted for inclusion in the public acre. Analysis of corn forage, silage, version of the official record. Summary of Petition fodder, and grain showed no residues Information not marked confidential The petitioner summary of the with an analytical method that is will be included in the public version pesticide petition is printed below as validated at the lower limit of 0.01 ppm. of the official record without prior required by section 408(d)(3) of the Three residue field studies with notice. If you have any questions about FFDCA. The summary of the petition furilazole applied pre-emergence to corn CBI or the procedures for claiming CBI, was prepared by the petitioner and at exaggerated rates up to 26 times the please consult the person identified in represents the views of the petitioner. proposed maximum use rate showed no the ‘‘FOR FURTHER INFORMATION EPA is publishing the petition summary measurable residues (< 0.01 ppm) in CONTACT’’ section. verbatim without editing it in any way. corn grain. Based on these results, it was E. What Should I Consider as I Prepare The petition summary announces the concluded that the potential for My Comments for EPA? availability of a description of the measurable concentration of furilazole analytical methods available to EPA for in processed commodities of corn was You may find the following the detection and measurement of the suggestions helpful for preparing your very low and that processing studies pesticide chemical residues or an were not required. comments: explanation of why no such method is 1. Explain your views as clearly as needed. B. Toxicological Profile possible. 1. Acute toxicity—i. An acute oral 2. Describe any assumptions that you Monsanto Company used. toxicity study in the rat with an LD50 of 3. Provide copies of any technical PP 1E4031 869 mg/kg. Toxicity Category III. information and/or data you used that ii. An acute dermal toxicity study in support your views. EPA has received a pesticide petition the rabbit with an LD50 of > 5,000 mg/ 4. If you estimate potential burden or (PP 1E4031) from Monsanto Company, kg. Toxicity Category IV. costs, explain how you arrived at the 700 14th St., NW., (1100), Washington, iii. An acute inhalation study in the estimate that you provide. DC 20005 proposing, pursuant to rat with a 4–hour inhalation LC50 of 2.3 5. Provide specific examples to section 408(d) of the Federal Food, milligrams per liter (mg/L), the highest illustrate your concerns. Drug, and Cosmetic Act (FFDCA), 21 attainable concentration. Toxicity 6. Make sure to submit your U.S.C. 346a(d), to amend 40 CFR part Category III. comments by the deadline in this 180 by establishing a tolerance for iv. A rabbit eye irritation study in notice. residues of 3-dichloroacetyl-5-(2- which furilazole is determined to be a 7. To ensure proper receipt by EPA, furanyl)-2,2-dimethyloxazolidine mild eye irritant. Toxicity Category III. be sure to identify the docket control (furilazole in or on the raw agricultural v. A rabbit primary dermal irritation number assigned to this action in the commodity (RAC) field corn grain, study indicating that furilazole is a subject line on the first page of your forage, and fodder at < 0.01 parts per negligible dermal irritant. Toxicity response. You may also provide the million (ppm). EPA has determined that Category IV. name, date, and Federal Register the petition contains data or information vi. A dermal sensitization study in citation. regarding the elements set forth in guinea pigs indicating that furilazole section 408(d)(2) of the FFDCA; does not produce delayed contact II. What Action is the Agency Taking? however, EPA has not fully evaluated hypersensitivity. EPA has received a pesticide petition the sufficiency of the submitted data at 2. Genotoxicty. Mutagenicity studies as follows proposing the establishment this time or whether the data supports including in vivo/in vitro unscheduled and/or amendment of regulations for granting of the petition. Additional data DNA synthesis (UDS) in rat hepatocytes, residues of certain pesticide chemical in may be needed before EPA rules on the gene mutation in cultured Chinese or on various food commodities under petition. hamster ovary cells (CHO/HGPRT), and VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56504 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices in vivo micronucleus assay were levels of parent safener, if any, retained advisory level for residues of furilazole negative. A Salmonella typhimurium/ in the tissues. The major route of in drinking water. mammalian microsome mutagenicity metabolism is typically glutathione 2. Non-dietary exposure. Furilazole is assay, with and without metabolic conjugation followed by formation of an used only as a safener or antidote to the activation, indicated that furilazole aldehyde intermediate which is then effects of acetochlor herbicide on corn induced a reproducible mutagenic either oxidized to an oxamic acid or seed or seedlings. It is sold only as part response, but only at a high and reduced to the corresponding alcohol. of acetochlor herbicide end-use precipitating dose. 7. Metabolite toxicology. The products which are classified as 3. Reproductive and developmental metabolism of furilazole is extensive Restricted Use by EPA which means toxicity—i. A rat developmental effects and results in a large number of polar they are used only by certified study with a no observed adverse effect metabolites each of which is present in applicators and are not available to the level (NOAEL) for maternal toxicity of soil or corn plants in very low general public. Herbicide products 10 milligrams/kilograms/day (mg/kg/ concentrations. These metabolites have containing furilazole are not registered day) and developmental toxicity of 10 not been identified as being of toxic for residential, home owner, or other mg/kg/day. concern. non-crop uses. They are thus not used ii. A 2-generation reproduction study Based on the available toxicity data, in parks, school grounds, public in rats fed diets containing 0, 15, 150, Monsanto believes the reference dose buildings, roadsides or rights-of-way or and 1,500 ppm furilazole. The NOAEL (RfD) for furilazole should be based on other public areas. Commercial for systemic toxicity was 150 ppm (9 to the NOAEL observed in the chronic rat cornfields are generally located well 11 mg/kg/day) for both parents and study, 0.26 mg/kg/day for males or 6 away from public areas where offspring. There were no treatment- mg/kg/day for females. Using an incidental contact could occur. related effects on reproductive uncertainty factor of 100, the RfD would Therefore, the general public is very performance or offspring survival at any be 0.0026 mg/kg/day. For cancer risk unlikely to have any non-dietary dose level; therefore, the NOAEL for assessment for furilazole, Monsanto exposure to furilazole. reproductive toxicity was 1,500 ppm or believes that margin of exposure (MOE) 101 mg/kg/day. D. Cumulative Effects 4. Subchronic toxicity—i. A 90–day assessment should be calculated using Monsanto has no reliable data or oral toxicity study in the rat with a the oncogenic NOAEL of 5 mg/kg/day information to suggest that furilazole NOAEL of 100 ppm, or 7 mg/kg/day. observed in the rat, which was the most has toxic effects that arise from toxic ii. A 90–day oral toxicity study in the sensitive species. mechanisms that are common to other dog with a NOAEL of 15 mg/kg/day. C. Aggregate Exposure substances. Therefore, a consideration iii. A 21–day repeated dose dermal of common toxic mechanism and toxicity study in rats with a NOAEL > 1. Food. Monsanto has used the cumulative effects with other substances 1,000 mg/kg/day. Theoretical Maximum Residue is not appropriate for furilazole, and 5. Chronic toxicity. A 24–month Contribution (TMRC) as a conservative Monsanto is considering only the chronic feeding and oncogenicity study estimate of the potential dietary potential effects of furilazole in this in the rat at doses of 0, 5, 100, 1,000, exposure for furilazole. This approach aggregate exposure assessment. and 2,000 (females)/2,500 (males) ppm. assumes that 100% of all RAC for which The liver, stomach, and testes were the tolerances have been established for E. Safety Determination main target organs. Oncogenic effects acetochlor, bear tolerance-level (0.01 1. U.S. population—i. Chronic risk. were seen in the stomach and liver of ppm) residues of furilazole. This over- The conservative estimate of aggregate females and in the stomach, liver, and estimate of actual dietary exposure chronic exposure is 3.0 x 10-6 mg/kg/ testes of males. The NOAEL for provides a quite conservative basis for day. This potential exposure represents oncogenic effects was 100 ppm (5.05 risk assessment. only 0.12% of the RfD of 0.0026 mg/kg/ mg/kg/day for males and 6.03 mg/kg/ i. Drinking water. Furilazole is day and provides a MOE of 1,666,667 day for females). The NOAEL for photolyzed rapidy with half-lives of 8 when compared to the 5 mg/kg/day chronic toxicity was 5 ppm (0.26 mg/kg/ hours in water in the presence of humic carcinogenic reference point. EPA day for males) and 100 ppm ( 6.03 mg/ acid, and 8 to 9 days in soil. The aerobic generally has no concern for exposures kg/day for females). An 18–month soil half-life is approximately 5 to 8 below 100% of the RfD and there are oncogenicity study in mice fed doses of weeks. Furilazole is stable to hydrolysis, adequate margins of safety for cancer. 0, 5, 40, 400, 1,250, and 2,500 (males)/ but its metabolites that have Monsanto concludes there is a 3,500 (females) ppm. The liver and the modifications to the dichloroacetyl reasonable certainty of no harm lung were the target organs. Oncogenic group are susceptible to hydrolyis as a resulting from exposure to furilazole. effects were observed in livers and lungs further step in degradation. In terrestrial 2. Infants and children. Employing of both sexes. The NOAEL for chronic field dissipation studies conducted with the same conservative TMRC estimates toxicity and for oncogenic effects was 40 application rates of 0.75 to 0.8 pounds of exposure used in the risk assessment ppm (5.93 mg/kg/day in males) and 400 per acre in eight sites with a range of for the general population, Monsanto ppm (92.0 mg/kg/day in females). soil types, furilazole dissipated readily has calculated that the aggregate 6. Animal metabolism. Because field with an average DT50 of about 13 days. exposures for nursing infants, non- trial residue data showed non-detectable This low persistence in the environment nursing infants, children age 1-6 and residues of furilazole in corn, neither combined with the low application rate children age 7-12 are less than 0.4% of animal metabolism nor residue transfer (maximum of 0.4 pound per acre) the RfD for each group. EPA generally studies with livestock were required. It indicates that furilazole is not likely to has no concern for exposures below is considered likely that metabolism be present in ground water. Based on 100% of the RfD. will be similar to that of other these considerations, Monsanto does not Monsanto notes the developmental dichloroacetamide safeners in mammals anticipate exposure to residues of toxicity NOAEL for rats (10 mg/kg/day) which are characterized by extensive furilazole in drinking water. EPA has is 38.5-fold higher than the NOAEL of metabolism and elimination of most of not established a Maximum 0.26 mg/kg/day in the chronic rat study the residue from the body with very low Concentration Level (MCL) or a health on which the RfD is based. This VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56505 indicates that the RfD is adequate for comment on all aspects of that letter and codified at 40 CFR part 132, requires the assessing risk to children. Also, the on EPA’s proposed course of action. Great Lakes States to adopt and submit developmental toxicity NOAEL of 10 DATES: Comments must be received in to EPA for approval water quality mg/kg/day is the same as the NOAEL for writing by December 6, 1999. criteria, methodologies, policies and maternal toxicity, indicating that ADDRESSES: Written comments may be procedures that are consistent with the offspring are not more sensitive than submitted to Joan M. Karnauskas, Chief, Guidance. 40 CFR 132.4 and 132.5. EPA parents. Standards and Applied Sciences Branch is required to approve of the State’s In the 2-generation rat reproduction (WT–15J), Water Division, U.S. submission within 90 days or notify the study, the NOAEL for reproductive Environmental Protection Agency, State that EPA has determined that all toxicity and offspring survival was 101 Region 5, 77 West Jackson Boulevard., or part of the submission is inconsistent mg/kg/day. This is 388-fold higher than Chicago, Illinois, 60604. In the with the Clean Water Act or the the NOAEL for chronic toxicity upon alternative, EPA will accept comments Guidance and identify any necessary which the RfD is based. The NOAEL for electronically. Comments should be sent changes to obtain EPA approval. If the pup toxicity was no higher than the to the following Internet E-mail address: State fails to make the necessary NOAEL for parental toxicity, indicating [email protected]. changes within 90 days, EPA must there is no unique sensitivity for Electronic comments must be submitted publish a notice in the Federal Register offspring to furilazole. in an ASCII file avoiding the use of identifying the approved and Monsanto believes that these data do special characters and any form of disapproved elements of the submission not indicate an increased prenatal or encryption. EPA will print electronic and a final rule identifying the postnatal sensitivity of children and comments in hard-copy paper form for provisions of Part 132 that shall apply infants to furilazole exposure and the official administrative record. EPA for discharges within the State. concludes that the 100-fold uncertainty will attempt to clarify electronic EPA reviewed the submission from factor used in the RfD is adequate to comments if there is an apparent error Minnesota for consistency with the protect infants and children. in transmission. Comments provided Guidance in accordance with 40 CFR F. International Tolerances electronically will be considered timely part 131 and 132.5. Based on its review if they are submitted electronically by to date, EPA believes that Minnesota has The Codex Alimentarius Commission 11:59 p.m. (Eastern time) December 6, adopted provisions that are consistent has not established a maximum residue 1999. with the Guidance. The basis for EPA’s level for furilazole. FOR FURTHER INFORMATION CONTACT: Joan belief is set forth in the September 28, [FR Doc. 99–27395 Filed 10–19–99; 8:45 am] M. Karnauskas, Standards and Applied 1999 letter. Today, EPA is soliciting BILLING CODE 6560±50±F Sciences Branch (WT–15J), Water public comment regarding all aspects of Division, U.S. Environmental Protection that letter and on EPA’s belief that Agency, Region 5, 77 West Jackson ENVIRONMENTAL PROTECTION Minnesota has adopted provisions that Boulevard, Chicago, Illinois 60604, or AGENCY are consistent with the Guidance. telephone her at (312) 886–6090. EPA intends to review any [FRL±6461±2] Copies of the September 28, 1999 information provided to it within the letter described above are available Notice of Availability of Letter From next 45 days before taking further action upon request by contacting Ms. pursuant to section 118(c) of the Clean EPA to the State of Minnesota Karnauskas. The September 28, 1999 Pursuant to Section 118 of the Clean Water Act and 40 CFR part 132 on letter and materials submitted by Minnesota’s submission. Water Act and the Water Quality Minnesota in support of its submission Elissa Speizman, Guidance for the Great Lakes System that EPA relied upon in preparing the letter (i.e., the docket) are available for Acting Regional Administrator, Region 5. AGENCY: Environmental Protection [FR Doc. 99–27385 Filed 10–19–99; 8:45 am] Agency (EPA). review by appointment at: EPA, Region 5, 77 W Jackson Boulevard, Chicago, BILLING CODE 6560±50±P ACTION: Notice of availability. Illinois (telephone 312–886–3717); and SUMMARY: Notice is hereby given that Minnesota Pollution Control Agency, Region 5 of the Environmental 520 Lafayette Road N., St. Paul, FEDERAL COMMUNICATIONS Protection Agency (EPA) proposes to Minnesota (telephone 651–296–3000). COMMISSION find that the State of Minnesota To access the docket material in (Minnesota) has fulfilled its obligation Chicago, call Ms. Mary Willis at (312) Sunshine Act Meeting under section 118(c) of the Clean Water 886–3717 between 8 a.m. and 4:30 p.m. Act and 40 CFR part 132 by adopting (central time) (Monday–Friday); in October 14, 1999. Minnesota, call Mr. Gary Kimball at provisions in its water quality standards Open Commission Meeting, Thursday, (651) 297–8221 between 8 a.m. and 4:30 and National Pollutant Discharge October 21, 1999 Elimination System (NPDES) permits p.m. (central time). program that EPA believes are SUPPLEMENTARY INFORMATION: On March The Federal Communications consistent with section 118(c) of the 23, 1995, EPA published the Final Commission will hold an Open Meeting Clean Water Act (CWA) and 40 CFR part Water Quality Guidance for the Great on the subjects listed below on 132. The basis for EPA’s belief and its Lakes System (Guidance) pursuant to Thursday, October 21, 1999, which is proposed course of action are described section 118(c)(2) of the Clean Water Act, scheduled to commence at 9:30 a.m. in in a September 28, 1999 letter from 33 U.S.C. 1268(c)(2). (March 23, 1995, Room TW–C305, at 445 12th Street, Region 5 to the State. EPA invites public 60 FR 15366). The Guidance, which was S.W., Washington, D.C. Item No. Bureau Subject 1 ...... Common Carrier ...... TITLE: Federal-State Joint Board on Universal Service (CC Docket No. 96±45). VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56506 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Item No. Bureau Subject SUMMARY: The Commission will consider reforming its high- cost universal service support mechanism for non-rural car- riers. 2 ...... Common Carrier ...... TITLE: Federal-State Joint Board on Universal Service (CC Docket No. 96±45); and Forward-Looking Mechanism for High Cost Support for Non-Rural LECs (CC Docket No. 97± 160). SUMMARY: The Commission will consider input values to be used in the forward-looking cost model to estimate universal service high-cost support for non-rural carriers. 3 ...... Mass Media and Office of Engineering and Technology ...... TITLE: Digital Audio Broadcasting Systems and Their Impact on the Terrestrial Radio Broadcast Service. SUMMARY: The Commission will consider a Notice of Pro- posed Rulemaking concerning the introduction of digital audio broadcasting. 4 ...... Engineering and Technology ...... TITLE: Amendment of Parts 2 and 90 of the Commission's Rules to Allocate the 5.850±5.925 GHz Band to the Mobile Service for Dedicated Short Range Communications of Intel- ligent Transportation Services (ET Docket No. 98±95, RM± 9096). SUMMARY: The Commission will consider a Report and Order to allocate the 5.850±5.925 GHz band for Intelligence Transportation Service. Additional information concerning FEDERAL ELECTION COMMISSION Administrative Matters. this meeting may be obtained from PERSON TO CONTACT FOR INFORMATION: Maureen Peratino or David Fiske, Office Sunshine Act Meeting Mr. Ron Harris, Press Officer, of Public Affairs, telephone number AGENCY: Federal Election Commission. Telephone: (202) 694–1220. (202) 418–0500; TTY (202) 418–2555. Mary W. Dove, DATE AND TIME: Tuesday, October 26, Copies of materials adopted at this 1999 at 10 a.m. Acting Secretary. meeting can be purchased from the [FR Doc. 99–27554 Filed 10–18–99; 2:35 pm] PLACE: 999 E Street, NW., Washington, FCC’s duplicating contractor, DC. BILLING CODE 6715±01±M International Transcription Services, STATUS: This meeting will be closed to Inc. (ITS, Inc.) at (202) 857–3800; fax the public. (202) 857–3805 and 857–3184; or TTY FEDERAL RESERVE SYSTEM (202) 293–8810. These copies are ITEMS TO BE DISCUSSED: available in paper format and alternative Compliance matters pursuant to 2 Federal Open Market Committee; media, including large print/type; U.S.C. 437g. Domestic Policy Directive of August digital disk; and audio tape. ITS may be Audits conducted pursuant to 2 U.S.C. 24, 1999. reached by e-mail: 437g, 438(b), and Title 26, U.S.C. In accordance with § 271.5 of its rules [email protected]. Their Internet Matters concerning participation in civil regarding availability of information (12 address is http://www.itsi.com. actions or proceedings or CFR part 271), there is set forth below arbitration. the domestic policy directive issued by This meeting can be viewed over Internal personnel rules and procedures George Mason University’s Capitol the Federal Open Market Committee at or matters affecting a particular its meeting held on August 24, 1999.1 Connection. The Capitol Connection employee. also will carry the meeting live via the The directive was issued to the Federal DATE AND TIME: Thursday, October 28, Internet. For information on these Reserve Bank of New York as follows: 1999 at 10 a.m. services call (703) 993–3100. The audio The information reviewed at this portion of the meeting will be broadcast PLACE: 999 E Street, NW., Washington, meeting suggests continued solid live on the Internet via the FCC’s DC (ninth floor). expansion of economic activity. Internet audio broadcast page at VerDate 12-OCT-99 19:05 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56507 remained robust. Available indicators or a decrease in the federal funds rate SUMMARY: Pursuant to the Federal suggest that the expansion in business operating objective during the Advisory Committee Act (FACA), as capital spending has slackened intermeeting period. amended (5 U.S.C. Appendix 2), the somewhat after a surge this spring. The By order of the Federal Open Market Department of Health and Human nominal deficit on U.S. trade in goods Committee, October 13, 1999. Services (DHHS) is announcing the and services widened substantially in Donald L. Kohn, establishment of the Secretary’s the second quarter. Consumer price Secretary, Federal Open Market Committee. Advisory Committee on inflation has been boosted in recent Xenotransplantation (SACX) and is [FR Doc. 99–27315 Filed 10–19–99; 8:45 am] months by an appreciable rise in energy soliciting nominations for qualified prices; against the background of very BILLING CODE 6210±01±F individuals to serve on the SACX. tight labor markets, increases in wages DATES: Nomination packages should be and total compensation have been FEDERAL RESERVE SYSTEM submitted to Dr. Mary Groesch, Office of somewhat larger. Biotechnology Activities, Office of Most interest rates are little changed Sunshine Act Meeting Science Policy, National Institutes of on balance since the meeting on June Health, 6000 Executive Boulevard, Suite 29-30, 1999. Key measures of share AGENCY HOLDING THE MEETING: Board of 302, Bethesda, Maryland 20892–7010 by prices in equity markets have posted Governors of the Federal Reserve December 6, 1999. mixed changes over the intermeeting System. FOR FURTHER INFORMATION CONTACT: Dr. period. In foreign exchange markets, the TIME AND DATE: 11:00 a.m., Monday, Mary Groesch, Office of Biotechnology trade-weighted value of the dollar has October 25, 1999. Activities, Office of Science Policy, declined slightly over the period in PLACE: Marriner S. Eccles Federal relation to the currencies of a broad National Institutes of Health, 6000 Reserve Board Building, 20th and C Executive Boulevard, Suite 302, group of important U.S. trading Streets, N.W., Washington, D.C. 20551. partners. Bethesda, Maryland 20892–7010, M2 and M3 have grown at a moderate STATUS: Closed. telephone 301–496–0785, facsimile pace in recent months. For the year MATTERS TO BE CONSIDERED: 301–496–9839, e-mail through July, M2 is estimated to have 1. Proposed Federal Reserve check [email protected]. increased at a rate somewhat above the automation strategy. SUPPLEMENTARY INFORMATION: 2. Personnel actions (appointments, Committee’s annual range and M3 at a Background rate approximating the upper end of its promotions, assignments, range. Total domestic nonfinancial debt reassignments, and salary actions) Xenotransplantation involves use of has continued to expand at a pace involving individual Federal Reserve live cells, tissues, or organs from a somewhat above the middle of its range. System employees. nonhuman animal source transplanted The Federal Open Market Committee 3. Any items carried forward from a or implanted into a human or used for seeks monetary and financial conditions previously announced meeting. ex vivo contact with human body fluids, that will foster price stability and CONTACT PERSON FOR MORE INFORMATION: cells, tissues or organs that are promote sustainable growth in output. Lynn S. Fox, Assistant to the Board; subsequently given to a human In furtherance of these objectives, the 202–452–3204. recipient. Interest in xenotransplantation has been renewed Committee reaffirmed at its meeting in SUPPLEMENTARY INFORMATION: You may June the ranges it had established in call 202–452–3206 beginning at by the continuing, critical shortage of February for growth of M2 and M3 of 1 approximately 5 p.m. two business days donated human organs and by advances to 5 percent and 2 to 6 percent before the meeting for a recorded in immunology and in the biology of respectively, measured from the fourth announcement of bank and bank organ and tissue rejection. quarter of 1998 to the fourth quarter of holding company applications Xenotransplantation holds potential for 1999. The range for growth of total scheduled for the meeting; or you may the treatment of a wide range of domestic nonfinancial debt was contact the Board’s Web site at http:// conditions and disorders, including maintained at 3 to 7 percent for the year. www.federalreserve.gov for an diabetes, Parkinson’s disease, For 2000, the Committee agreed on a electronic announcement that not only intractable pain, and other diseases tentative basis in June to retain the same lists applications, but also indicates involving tissue destruction and organ ranges for growth of the monetary procedural and other information about failure. However, xenotransplantation aggregates and debt, measured from the the meeting. research also poses certain challenges fourth quarter of 1999 to the fourth with respect to the potential for quarter of 2000. The behavior of the Dated: October 15, 1999. transmission of infectious agents from monetary aggregates will continue to be Robert deV. Frierson, animal donors to human recipients. evaluated in the light of progress toward Associate Secretary of the Board. Public awareness and understanding price level stability, movements in their [FR Doc. 99–27458 Filed 10–18–99; 10:41 am] of xenotransplantation is vital because velocities, and developments in the BILLING CODE 6210±01±P the infectious disease risks posed by economy and financial markets. xenotransplantation could extend To promote the Committee’s long-run beyond the individual patients to the objectives of price stability and DEPARTMENT OF HEALTH AND public at large. In addition to these sustainable economic growth, the HUMAN SERVICES safety issues, a number of individuals Committee in the immediate future and groups have raised concerns about seeks conditions in reserve markets Office of the Secretary, DHHS the implications of xenotransplantation consistent with increasing the federal for human rights, community interest funds rate to an average of around 5-1/ Request for Nominations for the and consent, social equity in access to 4 percent. In view of the evidence Secretary's Advisory Committee on novel biotechnologies, allocation of currently available, the Committee Xenotransplantation human allografts, and animal welfare. believes that prospective developments For all of these reasons, scientific ACTION: Notice. are equally likely to warrant an increase review of and public discourse on VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56508 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices xenotransplantation research are critical Secretary, or designee, from authorities members will have expertise in such and necessary. knowledgeable in such fields as fields as xenotransplantation, The Secretary, DHHS, has established xenotransplantation, epidemiology, epidemiology, virology, microbiology, the Secretary’s Advisory Committee on virology, microbiology, infectious infectious diseases, molecular biology, Xenotransplantation to provide a forum diseases, molecular biology, veterinary veterinary medicine, immunology, for the discussion of, and public input medicine, immunology, transplantation transplantation surgery, public health, on, these and other relevant issues. surgery, public health, applicable law, law, bioethics, social sciences, bioethics, social sciences, psychology, psychology, patient advocacy, and Abridged Committee Charter patient advocacy, and animal welfare. animal welfare. Individuals may Purpose Of the appointed members, at least one nominate themselves or other shall be a current member of the The DHHS has a vital role in individuals, and professional Xenotransplantation Subcommittee of safeguarding public health while associations and other organizations the Food and Drug Administration fostering the development of promising may nominate individuals. (FDA) Biologic Response Modifiers DHHS has a strong interest in strategies to treat tissue destruction, Advisory Committee and at least one ensuring that women, minority groups, organ failure and other public health shall be a current member of the Centers and physically challenged individuals needs. The Secretary’s Advisory for Disease Control and Prevention are adequately represented on the Committee on Xenotransplantation (CDC) Hospital Infection Control Committee and, therefore, encourages considers the full range of complex Practices Advisory Committee. nominations of qualified candidates scientific, medical, social, and ethical In addition, the Committee shall from these groups. DHHS also issues and the public health concerns include non-voting, ex officio members encourages geographic diversity in the raised by xenotransplantation, including from relevant DHHS components, composition of the Committee. ongoing and proposed protocols, and including the Office of the Secretary, A nomination package should include makes recommendations to the CDC, FDA, Health Resources and the following information for each Secretary on policy and procedures. The Services Administration, National nominee: (1) A letter of nomination recommendations of the Committee will Institutes of Health and others as stating the name, affiliation, and contact facilitate DHHS efforts to develop an deemed appropriate by the Secretary or information for the nominee, the basis integrated approach to addressing designee. As necessary, standing and ad for the nomination (i.e., what specific emerging public health issues in hoc subcommittees composed of attributes recommend him/her for xenotransplantation. members of the parent committee may service in this capacity), and the Function be established to perform specific nominee’s field(s) of expertise; (2) a functions within the Committee’s biographical sketch of the nominee and The Secretary’s Advisory Committee jurisdiction. a copy of his or her curriculum vitae; on Xenotransplantation shall advise the Members shall be invited to serve for and (3) the name, return address, and Secretary, through the Assistant overlapping four year terms; terms of daytime telephone number at which the Secretary for Health, on all aspects of more than two years are contingent nominator can be contacted. Optimally, the scientific development and clinical upon the renewal of the Committee by a nomination package would also application of xenotransplantation. The appropriate action prior to its include a statement by the nominee that Committee’s charge includes the termination. The Committee shall be he/she is willing to accept an following activities: able to call upon special consultants, appointment to Committee membership. • Advise the Department on the assemble ad hoc working groups and All nomination information should be current state of knowledge regarding convene conferences and workshops as provided in a single, complete package xenotransplantation. necessary to assist in the work of the within 45 days of the publication of this • Review current and proposed Committee. Management and support notice. The nomination letter should xenotransplantation clinical trials. services shall be provided by the Office bear an original signature; facsimile Identify and discuss the medical, of Science Policy, Office of the Director, transmissions or copies cannot be scientific, ethical, legal, and/or National Institutes of Health, with accepted. All nominations for socioeconomic issues raised by these direction and guidance from the membership should be sent to Dr. Mary clinical trials. Assistant Secretary for Health. Groesch at the address provided above. • Advise the Department on the potential for transmission of infectious Meetings Dated: October 13, 1999. diseases as a consequence of Meetings shall be held approximately David Satcher, xenotransplantation. three times per year at the call of the Assistant Secretary for Health and Surgeon • Recommend to the Department, as Chair with the advance approval of a General. needed, changes to the PHS Guideline Government official who shall also [FR Doc. 99–27306 Filed 10–19–99; 8:45 am] on Infectious Disease Issues in approve the agenda. A Government BILLING CODE 4140±01±M Xenotransplantation. official shall be present at all meetings. • Discuss additional scientific, Meetings shall be open to the public medical, public health, ethical, legal except as determined otherwise by the DEPARTMENT OF HEALTH AND and socioeconomic issues, including Secretary or designee; notice of all HUMAN SERVICES international policies and meetings shall be provided to the Administration for Children and developments, that are relevant to public. Meetings shall be conducted, Families xenotransplantation. and records of the proceedings kept, as Structure required by applicable laws and Submission for OMB Review; Departmental regulations. Comment Request The Committee shall consist of 15 voting members, including the Chair, Nominations Title: Online Interstate Referral Guide appointed by the Secretary or designee. DHHS will consider nominations of (IRG). Members shall be selected by the all qualified individuals. Committee OMB No.: New. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56509 Description: The IRG is an essential version of the IRG will provide States numerous discrete sources into a single reference maintained by the Federal with an effective and efficient way of centralized, automated repository. Office of Child Support Enforcement viewing and updating State profile, Respondents: State, Local or Tribal (OCSE) that provides State IV–D address, and FIPS code information by Governments. agenices with the information needed to consolidating data available through process interstate cases. The Online Annual Burden Estimates: Number of re- Average bur- Instrument Number of re- sponses per den hours per Total burden spondents respondent response hours Online IRG ...... 54 18 .3 292 Estimated Total Annual Burden Name of Committee: Pediatric In order to prepare presentations and Hours: 292. Advisory Subcommittee of the Anti– discussions for the meeting, the agency Infective Drugs Advisory Committee. is requesting interested persons to Additional Information General Function of the Committee: submit in writing data, information, and Copies of the proposed collection may To provide advice and views relevant to the agenda items. be requested by writing to the recommendations to the agency on These submissions should contain the Administration for Children and FDA’s regulatory issues. docket number 99N–4236 and be Families, Office of Information Services, Date and Time: The meeting will be submitted to the Dockets Management 370 L’Enfant Promenade, SW, held on November 15, 1999, from 8 a.m. Branch (address above). Washington, DC 20447, Attn: ACF to 5:30 p.m., and on November 16, 1999, Procedure: Interested persons may Reports Clearance Officer. from 8 a.m. to 1 p.m. Interested persons present data, information, or views, 9OMB comment and organizations may submit written orally or in writing, on issues pending comments by November 8, 1999, to the before the committee. Written OMB is required to make a decision Dockets Management Branch (address submissions may be made to the contact concerning the collection of information below). person by November 8, 1999. Oral between 30 to 60 days after publication Location and Addresses: Holiday Inn, presentations from the public will be of this document in the Federal scheduled between approximately 11 Register. Therefore, a comment is best Kennedy Grand Ballroom, 8777 Georgia Ave., Silver Spring, MD. a.m. and 12 noon on November 15, assured of having its full effect if OMB 1999, and between approximately 10:30 receives it within 30 days of Submit written comments to the Dockets Management Branch (HFA– a.m. and 11 a.m. on November 16, 1999. publication. Written comments and Time allotted for each presentation may recommendations for the proposed 305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, be limited. Those desiring to make information collection should be sent formal oral presentations should notify directly to the following: Office of MD 20852. Contact: Jayne E. Peterson, Center for the contact person before November 8, Management and Budget, Paperwork, 1999, and submit a brief statement of Reduction Project, 725 17th Street, NW, Drug Evaluation and Research (HFD– 21), Food and Drug Administration, the general nature of the evidence or Washington, DC 20503, Attn: ACF Desk arguments they wish to present, the Officer. 5600 Fishers Lane, Rockville, MD 20857, 301–827–6767, or FDA Advisory names and addresses of proposed Dated: October 14, 1999. Committee Information Line, 1–800– participants, and an indication of the Bob Sargis, 741–8138 (301–443–0572 in the approximate time requested to make Acting Reports Clearance Officer. Washington, DC area), code 12530. their presentation. [FR Doc. 99–27375 Filed 10–19–99; 8:45 am] Please call the Information Line for up- Notice of this meeting is given under the Federal Advisory Committee Act (5 BILLING CODE 4184±01±M to-date information on this meeting. U.S.C. app. 2). Agenda: The subcommittee will discuss broad pediatric issues as Dated: October 12, 1999. DEPARTMENT OF HEALTH AND recommended in the final rule entitled Linda A. Suydam, HUMAN SERVICES ‘‘Regulations Requiring Manufacturers Senior Associate Commissioner. to Assess the Safety and Effectiveness of Food and Drug Administration [FR Doc. 99–27419 Filed 10–19–99; 8:45 am] New Drugs and Biologic Products in BILLING CODE 4160±01±F [Docket No. 99N±4236] Pediatric Patients’’ (63 FR 66632, December 2, 1998). Pediatric Advisory Subcommittee of On November 15, 1999, the DEPARTMENT OF HEALTH AND the Anti-Infective Drugs Advisory subcommittee will discuss ethical HUMAN SERVICES Committee; Notice of Meeting; Request considerations in the conduct of for Comments pediatric clinical trials involving a drug Food and Drug Administration or biologic product, specifically the role AGENCY: Food and Drug Administration, Dermatologic and Ophthalmic Drugs of pediatric subjects/volunteers who do HHS. Advisory Committee; Notice of Meeting ACTION: Notice. not have the disease under study. On November 16, 1999, the AGENCY: Food and Drug Administration, This notice announces a forthcoming subcommittee will discuss whether or HHS. meeting of a public advisory committee not there is a public health need for the ACTION: Notice. of the Food and Drug Administration pharmaceutical industry to extend their (FDA). The meeting will be open to the drug development program for sleep This notice announces a forthcoming public. disorders into the pediatric population. meeting of a public advisory committee VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56510 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices of the Food and Drug Administration they wish to present, the names and Place: Double Tree Hotel, 1750 Rockville (FDA). At least one portion of the addresses of proposed participants, and Pike, Rockville, MD 20852. meeting will be closed to the public. an indication of the approximate time Contact Person: Lalita D. Palekar, Scientific Name of Committee: Dermatologic requested to make their presentation. Review Administrator, Special Review, and Ophthalmic Drugs Advisory Closed Committee Deliberations: On Referral and Resources Branch, Division of Extramural Activities, National Cancer Committee. November 5, 1999, from 8:30 a.m. to 1 Institute, National Institutes of Health, 6130 General Function of the Committee: p.m., the meeting will be closed to Executive Boulevard/EPN–622B, Rockville, To provide advice and permit discussion and review of trade MD 20892–7405, 301/496–7575. recommendations to the agency on secret and/or confidential information (Catalogue of Federal Domestic Assistance FDA’s regulatory issues. (5 U.S.C. 552b(c)(4)) regarding pending Program Nos. 93.392, Cancer Construction; Date and Time: The meeting will be NDA’s issues. 93.393, Cancer Cause and Prevention held on November 4 and 5, 1999, 8:30 Notice of this meeting is given under Research; 93.394, Cancer Detection and a.m. to 5:30 p.m. the Federal Advisory Committee Act (5 Diagnosis Research, 93.395, Cancer Location: Hilton Hotel, Salons A, B, U.S.C. app. 2). Treatment Research; 93.396, Cancer Biology and C, 620 Perry Pkwy., Gaithersburg, Research; 93.397, Cancer Centers Support; MD 20877, 301–977–8900. Dated: October 12, 1999. 93.398, Cancer Research Manpower; 93.399, Contact Person: Tracy Riley or Angie Linda A. Suydam, Cancer Control, National Institutes of Health, Whitacre, Center for Drug Evaluation Senior Associate Commissioner. HHS) and Research (HFD–21), Food and Drug [FR Doc. 99–27418 Filed 10–19–99; 8:45 am] Dated: October 13, 1999. Administration, 5600 Fishers Lane, BILLING CODE 4160±01±F LaVerne Y. Stringfield, Rockville, MD 20857, 301–827–7001, or Director, Office of Federal Advisory FDA Advisory Committee Information Committee Policy. Line, 1–800–741–8138 (301–443–0572 DEPARTMENT OF HEALTH AND [FR Doc. 99–27330 Filed 10–19–99; 8:45 am] in the Washington, DC area), code HUMAN SERVICES BILLING CODE 4140±01±M 12534. Please call the Information Line for up-to-date information on this National Institutes of Health meeting. Current information may also National Cancer Institute; Notice of DEPARTMENT OF HEALTH AND be accessed on the Internet FDA Closed Meetings HUMAN SERVICES Website at www.fda.gov. Agenda: On November 4, 1999, Pursuant to section 10(d) of the National Institutes of Health during the morning session, the Federal Advisory Committee Act, as committee will discuss new drug amended (5 U.S.C. Appendix 2), notice National Cancer Institute; Notice of application (NDA) 21–022, LoproxTM is hereby given of the following Closed Meeting (ciclopirox nail lacquer), Hoechst meetings. Pursuant to section 10(d) of the Marion Roussel, Inc., for treatment of The meetings will be closed to the Federal Advisory Committee Act, as onychomycosis. On November 4, 1999, public in accordance with the amended (5 U.S.C. Appendix 2), notice during the afternoon session, the provisions set forth in sections is hereby given of the following committee will participate in a scientific 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., meeting. discussion of clinical trial design as amended. The grant applications and The meeting will be closed to the questions for products intended for the the discussions could disclose public in accordance with the treatment of hand dermatitis. On confidential trade secrets or commercial provisions set forth in sections November 5, 1999, during the afternoon property such as patentable material, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., session, the committee will discuss and personal information concerning as amended. The grant applications and NDA 20–965, Levulan (aminolevulinic individuals associated with the grant the discussions could disclose acid HCL) KerastickTM for Topical applications, the disclosure of which confidential trade secrets or commercial Solution, 20 percent, Dusa would constitute a clearly unwarranted property such as patentable material, Pharmaceuticals, Inc., for use in the invasion of personal privacy. and personal information concerning treatment of multiple actinic keratoses Name of Committee: National Cancer individuals associated with the grant of the face and scalp. Institute Special Emphasis Panel In Vivo applications, the disclosure of which Procedure: On November 4, 1999, Cellular and Molecular Imaging Centers (Pre- would constitute a clearly unwarranted from 8:30 a.m. to 5:30 p.m. and on ICMICs/ICMICs). invasion of personal privacy. November 5, 1999, from 1 p.m. to 5:30 Date: November 8–10, 1999. p.m., the meeting will be open to the Time: 8:00 a.m. to 5:00 p.m. Name of Committee: National Cancer Agenda: To review and evaluate grant Institute Special Emphasis Panel, Special public. Interested persons may present Populations Networks for Cancer Awareness data, information, or views, orally or in applications. Place: Ramanda Inn Rockville, 1775 Research and Training. writing, on issues pending before the Rockville Pike, Rockville, MD 20852. Date: November 18–19, 1999. committee. Written submissions should Contact Person: Lalita D Palekar, Scientific Time: 8 am to 6 pm. be made to the contact person by Review Administrator, Special Review, Agenda: To review and evaluate grant October 29, 1999. Oral presentations Referral and Resources Branch, Division of applications. from the public will be scheduled Extramural Activities, National Cancer Place: Double Tree Hotel, 1750 Rockville between approximately 8:30 a.m. and 9 Institute, National Institutes of Health, 6130 Pike, Rockville, MD 20852. a.m. and between approximately 1 p.m. Executive Boulevard/EPN–622B, Rockville, Contact Person: Joyce C. Pegues, Scientific Review Administrator, Special Review, and 1:30 p.m. on November 4, 1999. MD 20892–7405, 301/496–7505. Name of Committee: National Cancer Referral, and Resources Branch, Division of Time allotted for each presentation may Extramural Activities, National Cancer be limited. Those desiring to make oral Institute Special Emphasis Panel Therapeutic Modulation of Angiogenesis in Disease. Institutes, 6130 Executive Boulevard, Room presentations should notify the contact Date: November 15–17, 1999. EPN–609, Bethesda, MD 20892, 301/496– person before October 29, 1999, and Time: 7:00 p.m. to 5:00 p.m. 2378. submit a brief statement of the general Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance nature of the evidence or arguments applications. Program Nos. 93.392, Cancer Construction; VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56511 93.393, Cancer Cause and Prevention Dated: October 13, 1999. DEPARTMENT OF HEALTH AND Research; 93.394, Cancer Detection and LaVerne Y. Stringfield, HUMAN SERVICES Diagnosis Research; 93.395, Cancer Director, Office of Federal Advisory Treatment Research ; 93.396, Cancer Biology Committee Policy. National Institutes of Health Research, 93.397, Cancer Centers Support; [FR Doc. 99–27341 Filed 10–19–99; 8:45 am] 93.398, Cancer Research Manpower; 93.399, National Cancer Institute; Notice of Cancer Control, National Institutes of Health, BILLING CODE 4140±01±M Meeting HHS) Dated: October 13, 1999. Pursuant to section 10(d) of the DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as LaVerne Y. Stringfield, HUMAN SERVICES amended (5 U.S.C. Appendix 2), notice Director, Office of Federal Advisory is hereby given of the meeting of the Committee Policy. National Institutes of Health National Cancer Institute Board of [FR Doc. 99–27340 Filed 10–19–99; 8:45 am] Scientific Advisors. BILLING CODE 4140±01±M National Cancer Institute; Notice of Closed Meeting The meeting will be open to the public as indicated below, with DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the attendance limited to space available. HUMAN SERVICES Federal Advisory Committee Act, as Individuals who plan to attend and amended (5 U.S.C. Appendix 2), notice need special assistance, such as sign National Institutes of Health is hereby given of the following language interpretation or other meeting. reasonable accommodations, should National Cancer Institute; Notice of notify the Contact Person listed below The meeting will be closed to the in advance of the meeting. Closed Meeting public in accordance with the provisions set forth in sections The meeting will be closed to the Pursuant to section 10(d) of the public in accordance with the provision 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Federal Advisory Committee Act, as set forth in sections 552b(c)(6) and as amended. The grant applications and amended (5 U.S.C. Appendix 2), notice 552b(c)(9)(B), Title 5 U.S.C. The the discussions could disclose is hereby given of the following discussions could reveal information of confidential trade secrets or commercial meeting. a personal nature where disclosure property such as patentable material, would constitute a clearly unwarranted The meeting will be closed to the and personal information concerning public in accordance with the invasion of personal privacy and the individuals associated with the grant premature disclosure of discussions provisions set forth in sections applications, the disclosure of which related to personnel and confidential 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., would constitute a clearly unwarranted administrative information would be as amended. The grant applications and invasion of personal privacy. likely to significantly frustrate the the discussions could disclose subsequent implementation of confidential trade secrets or commercial Name of Committee: National Cancer Institute Initial Review Group, Subcommittee recommendations. property such as patentable material, F—Manpower & Training. and personal information concerning Name of Committee: National Cancer Date: November 17–19, 1999. individuals associated with the grant Institute Board of Scientific Advisors. Time: November 17, 1999, 6:30 pm to 8 Date: November 8–9, 1999. applications, the disclosure of which pm. Open: November 8, 8:30 am to 5 pm; would constitute a clearly unwarranted Agenda: To review and evaluate grant November 9, 8:30 am to 12 pm. invasion of personal privacy. applications. Agenda: Report of the Director, NCI; Name of Committee: National Cancer Place: Georgetown Holiday Inn, 2101 Ongoing and New Business, Reports of Institute Special Emphasis Panel. Wisconsin Avenue, NW, Washington, DC Program Review Group(s), Budget Presentation, Reports of Special Initiatives, Date: November 17–19, 1999. 20007. and RFA Concept Reviews. Time: 7 pm to 12 pm. Contact Person: Mary Bell, Health Scientist Closed: November 8, 5 pm to 6 pm. Administrator, Division of Extramural Agenda: To review and evaluate grant Agenda: To review and evaluate personnel Activities, National Cancer Institute, National applications. and programmatic issues. Place: Hilton Gaithersburg, 620 Perry Institutes of Health, PHS, DHHS, Rockville, Place: National Cancer Institutes, 9000 Parkway, Gaithersburg, MD 20877. MD 20892. Rockville Pike, Building 31, C Wing, 6 Floor, Contact Person: Sherwood Githens, (Catalogue of Federal Domestic Assistance Conference Room 10, Bethesda, MD 20892. Scientific Review Administrator, National Program Nos. 93.392, Cancer Construction; Contact Person: Paulette S. Gray, Executive Institutes of Health, National Cancer 93.393, Cancer Cause and Prevention Secretary, Deputy Director, Division of Institute, Special Review, Referral and Research; 93.394, Cancer Detection and Extramural Activities, National Cancer Resources Branch, Executive Plaza North, Diagnosis Research; 93.395, Cancer Institute, National Institutes of Health, 6130 Executive Boulevard, Bethesda, MD Treatment Research; 93/396. Cancer Biology Executive Plaza North, Suite 600, 6130 20892, 301/435–9050. Research; 93.397, Cancer Centers Support; Executive Boulevard, Rockville, MD 20892, (301) 496–4218. (Catalogue of Federal Domestic Assistance 93.398, Cancer Research Manpower; 93.399, Program Nos. 93.392, Cancer Construction; Cancer Control, National Institutes of Health, (Catalogue of Federal Domestic Assistance Program Nos. 93.392, Cancer Construction; 93.393, Cancer Cause and Prevention HHS) 93.393, Cancer Cause and Prevention Research; 93.394, Cancer Detection and Dated: October 13, 1999. Research; 93.394, Cancer Detection and Diagnosis Research; 93.395, Cancer LaVerne Y. Stringfield, Diagnosis Research; 93.395, Cancer Treatment Research; 93.396, Cancer Biology Director, Office of Federal Advisory Treatment Research; 93.396, Cancer Biology Research; 93.397, Cancer Centers Support; Committee Policy. Research; 93.397, Cancer Centers Support; 93.398, Cancer Research Manpower; 93.399, [FR Doc. 99–27342 Filed 10–19–99; 8:45 am] 93.398, Cancer Research Manpower; 93.399, Cancer Control, National Institutes of Health, Cancer Control, National Institutes of Health, HHS) BILLING CODE 4140±01±M HHS) VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56512 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Dated: October 13, 1999. DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice LaVerne Y. Stringfield, HUMAN SERVICES is hereby given of the following Director, Office of Federal Advisory meeting. Committee Policy, NIH. National Institutes of Health The meeting will be closed to the [FR Doc. 99–27343 Filed 10–19–99; 8:45 am] public in accordance with the National Institute of Neurological provisions set forth in sections BILLING CODE 4140±01±M Disorders and Stroke; Notice of Closed 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Meeting as amended. The grant applications and DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the the discussions could disclose confidential trade secrets or commercial HUMAN SERVICES Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice property such as patentable material, National Institutes of Health is hereby given of the following and personal information concerning meeting. individuals associated with the grant National Heart, Lung, and Blood The meeting will be closed to the applications, the disclosure of which Institute; Notice of Closed Meeting public in accordance with the would constitute a clearly unwarranted provisions set forth in sections invasion of personal privacy. Pursuant to section 10(d) of the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Institute on Federal Advisory Committee Act, as as amended. The contract proposals and Drug Abuse Special Emphasis Panel, amended (5 U.S.C. Appendix 2), notice the discussions could disclose Minority Institutions Drug Abuse Research is hereby given of the following confidential trade secrets or commercial Development Program. Date: November 1, 1999. meeting. property such as patentable material, and personal information concerning Time: 10 am to 1 pm. The meeting will be closed to the Agenda: To review and evaluate grant individuals associated with the contract applications. public in accordance with the proposals, the disclosure of which provisions set forth in sections Place: Neuroscience Center, National would constitute a clearly unwarranted Institutes of Health, 6001 Executive Blvd., 552b(c)(4) and 552b(c)(6), title 5 U.S.C., invasion of personal privacy. Bethesda, MD 20892. as amended. The grant applications and Contact Person: Marina L. Volkov, Special the discussions could disclose Name of Committee: National Institute of Neurological Disorders and Stroke Special Expert, Office of Extramural Program Review, confidential trade secrets or commercial Emphasis Panel. National Institute on Drug Abuse, National property such as patentable material, Date: November 3, 1999. Institutes of Health, DHHS, 6001 Executive and personal information concerning Time: 1 pm to 3 pm. Boulevard, Room 3158, MSC 9547, Bethesda, individuals associated with the grant Agenda: To Review and evaluate contract MD 20892–9547, (301) 435–1433. applications, the disclosure of which proposals (Catalogue of Federal Domestic Assistance Program Nos. 93.277, Drug Abuse Scientist would constitute a clearly unwarranted Place: Neuroscience Center, National Institutes of Health, 6001 Executive Blvd., Development Award for Clinicians, Scientist invasion of personal privacy. Bethesda, MD 20892 (Telephone Conference Development Awards, and Research Scientist Name of Committee: Heart, Lung, and Call). Awards; 93.278, Drug Abuse National Blood Program Project Review Committee. Contact Person: Phillip F. Wiethorn, Research Service Awards for Research Training; 93.279, Drug Abuse Research Date: December 2, 1999. Scientific Review Administrator, Scientific Review Branch, NINDS/NIH/DHHS, Programs, National Institutes of Health, HHS) Time: 8 am to 4 pm. Neuroscience Center, 6001 Executive Blvd, Agenda: To review and evaluate grant Dated: October 13, 1999. Suite 3208, MSC 9529, Bethesda, MD 20892– LaVerne Y. Stringfield, applications. 9529, 301–496–9223. Place: Holiday Inn—Silver Spring, 8777 This notice is being published less than 15 Director, Office of Federal Advisory Georgia Avenue, Silver Spring, MD 20910. days prior to the meeting due to the timing Committee Policy. Contact Person: Jeffrey H. Hurst, Scientific limitations imposed by the review and [FR Doc. 99–27332 Filed 10–19–99; 8:45 am] Review Administrator, Review Branch, funding cycle. BILLING CODE 4140±01±M National Heart, Lung, and Blood Institute, (Catalogue of Federal Domestic Assistance National Institutes of Health, 6701 Rockledge Program Nos. 93.853, Clinical Research Drive, Room 7208, Bethesda, MD 20892, 301/ Related to Neurological Disorders; 93.854, DEPARTMENT OF HEALTH AND 435–0303. Biological Basis Research in the HUMAN SERVICES Neurosciences, National Institutes of Health, (Catalogue of Federal Domestic Assistance HHS) National Institutes of Health Program Nos. 93.233, National Center for Dated: October 13, 1999. Sleep Disorders Research; 93.837, Heart and LaVerne Y. Stringfield, National Institute on Drug Abuse; Vascular Diseases Research; 93.838, Lung Notice of Closed Meeting Diseases Research; 93.839, Blood Diseases Director, Office of Federal Advisory and Resources Research, National Institutes Committee Policy. Pursuant to section 10(d) of the of Health, HHS) [FR Doc. 99–27331 Filed 10–19–99; 8:45 am] Federal Advisory Committee Act, as Dated: October 13, 1999. BILLING CODE 4140±01±M amended (5 U.S.C. Appendix 2), notice LaVerne Y. Stringfield, is hereby given of the following meeting. Director, Office of Federal Advisory DEPARTMENT OF HEALTH AND The meeting will be closed to the Committee Policy. HUMAN SERVICES public in accordance with the [FR Doc. 99–27339 Filed 10–19–99; 8:45 am] provisions set forth in sections BILLING CODE 4140±01±M National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., National Institute on Drug Abuse; as amended. The contract proposals and Notice of Closed Meeting the discussions could disclose confidential trade secrets or commercial Pursuant to section 10(d) of the property such as patentable material, Federal Advisory Committee Act, as and personal information concerning VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56513 individuals associated with the contract Dated: October 13, 1999. DEPARTMENT OF HEALTH AND proposals, the disclosure of which LaVerne Y. Stringfield, HUMAN SERVICES would constitute a clearly unwarranted Director, Office of Federal Advisory invasion of personal privacy. Committee Policy. National Institutes of Health [FR Doc. 99–27335 Filed 10–19–99; 8:45 am] Name of Committee: National Institute on Office of the Director, National BILLING CODE 4140±01±M Drug Abuse Special Emphasis Panel, Institutes of Health; Notice of Meeting ‘‘Technical and Logistical Support Assistance to the Center on AIDS and Other Medical Pursuant to section 10(a) of the Consequences of Drug Abuse (CAMCODA)’’. DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as Date: October 21, 1999. HUMAN SERVICES amended (5 U.S.C. Appendix 2), notice Time: 9:30 am to 11 am. Agenda: To review and evaluate contract National Institutes of Health is hereby given of a meeting of the proposals. Advisory Committee on Research on National Institute of Diabetes and Women’s Health. Place: Neuroscience Center, National Digestive and Kidney Diseases; Institutes of Health, 6001 Executive Blvd., Amended Notice of Meeting The meeting will be open to the Bethesda, MD 20892. public, with attendance limited to space Contact Person: Eric Zatman, Contract Notice is hereby given of a change in available. Individuals who plan to Review Specialist, Office of Extramural the meeting of the Kidney, Urologic and attend and need special assistance, such Program Review, National Institute on Drug Hematologic Diseases D Subcommittee, as sign language interpretation or other Abuse, National Institutes of Health, DHHS, October 29, 1999, 8 am to October 29, reasonable accommodations, should 6001 Executive Boulevard, Room 3158, MSC 1999, 5 pm, Double Tree Hotel, 1750 notify the Contact Person listed below 9547, Bethesda, MD 20892–9547, (301) 435– in advance of the meeting. 1438. Rockville Pike, Rockville, MD, 20852 This notice is being published less than 15 which was published in the Federal Name of Committee: Advisory Committee days prior to the meeting due to the timing Register on September 14, 1999, 64 FR on Research on Women’s Health. limitations imposed by the review and 49815. Date: November 15, 1999. funding cycle. The meeting is being amended to add Time: 8:30 am to 5 pm. (Catalogue of Federal Domestic Assistance the Open Session. The meeting will Agenda: To provide advice on appropriate Program Nos. 93.277, Drug Abuse Scientist have an Open Session on October 28, research activities with respect to women’s Development Award for Clinicians, Scientist 1999 from 5:30 p.m. until 7:00 p.m. The health and related studies to be undertaken Development Awards, and Research Scientist meeting is partially Closed to the public. by the national research institutes, to provide recommendations regarding ORWH Awards; 93.278, Drug Abuse National Dated: October 13, 1999. activities, and to assist in monitoring Research Service Awards for Research LaVerne Y. Stringfield, Training; 93.279, Drug Abuse Research compliance regarding the inclusion of Director, Office of Federal Advisory Programs, National Institutes of Health, HHS) women in clinical research. Committee Policy. Place: National Institutes of Health, Dated: October 13, 1999. [FR Doc. 99–27336 Filed 10–19–99; 8:45 am] Building 31, Conference Room 10, Bethesda, LaVerne Y. Stringfield, BILLING CODE 4140±01±M MD 20892. Director, Office of Federal Advisory Contact Person: Joyce Rudick, Director, Committee Policy. Programs & Management, Office of Research [FR Doc. 99–27334 Filed 10–19–99; 8:45 am] DEPARTMENT OF HEALTH AND on Women’s Health, Office of the Director, BILLING CODE 4140±01±M HUMAN SERVICES National Institutes of Health, Building 1, Room 201, Bethesda, MD 20892, 301/402– National Institutes of Health 1770. DEPARTMENT OF HEALTH AND National Institute of Diabetes and (Catalogue of Federal Domestic Assistance HUMAN SERVICES Digestive and Kidney Diseases; Program Nos. 93.14, Intramural Research Amended Notice of Meeting Training Award; 93.187, Undergraduate National Institutes of Health Scholarship Program for Individuals from Notice is hereby given of a change in Disadvantaged Backgrounds; 93.22, Clinical National Institute of Diabetes and Research Loan Repayment Program for the meeting of the Digestive Diseases Digestive and Kidney Diseases; Individuals from Disadvantaged and Nutrition C. Subcommittee, October Amended Notice of Meeting Backgrounds; 93.232, Loan Repayment 29, 1999, 8 am to October 29, 1999, 5 Program for Research Generally; 93.39, pm, Double Tree Hotel, 1750 Rockville Notice is hereby given of a change in Academic Research Enhancement Award; Pike, Rockville, MD 20852 which was the meeting of the Diabetes, 93.936, NIH Acquired Immunodeficiency published in the Federal Register on Endocrinology and Metabolic Diseases B Syndrome Research Loan Repayment September 14, 1999, 64FR49815. Subcommittee, October 29, 1999, 8 am Program, National Institutes of Health, HHS) to October 29, 1999, 5 pm, Double Tree The meeting is being amended to add Dated: October 13, 1999. Hotel, 1750 Rockville Pike, Rockville, the Open Session. The meeting will LaVerne Y. Stringfield, have an Open Session on October 28, MD, 20852 which was published in the Director, Office of Federal Advisory Federal Register on September 14, 1999, 1999 from 5:30 p.m. until 7:00 p.m. The meeting is partially Closed to the public. Committee Policy. 64 FR 49815. [FR Doc. 99–27338 Filed 10–19–99; 8:45 am] Dated: October 13, 1999. The meeting is being amended to add BILLING CODE 4140±01±M the Open Session. The meeting will LaVerne Y. Stringfield, have an Open Session on October 28, Director, Office of Federal Advisory 1999 from 5:30 p.m. until 7:00 p.m. the Committee Policy. meeting is partially Closed to the public. [FR Doc. 99–27337 Filed 10–19–99; 8:45 am] BILLING CODE 4140±01±M VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56514 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices DEPARTMENT OF THE INTERIOR ACTION: Notice of meeting. comment on the submission. Comments are being solicited on the need for the Bureau of Land Management SUMMARY: The next meeting of the information, its practical utility, the Northwest Colorado Resource Advisory [NV±065±1640±00] accuracy of the Agency’s burden Council will be held on Friday, estimate, and on ways to minimize the Notice of Emergency Closure of Public December 3, 1999, at the Garfield reporting burden, including automated Lands; Nye County, NV County Courthouse in Glenwood collection techniques and uses of other Springs, Colorado. forms of technology. The proposed form AGENCY: Bureau of Land Management, DATES: Friday, December 3, 1999. under review is summarized below. Interior. ADDRESSES: For further information, DATES: Comments must be received by SUMMARY: Notice is hereby given that contact Lynn Barclay, Bureau of Land December 20, 1999. certain public lands in the vicinity of Management (BLM), 455 Emerson ADDRESSES: Copies of the subject form Tybo Canyon, Nye County Nevada, are Street, Craig, Colorado 81625; and the request for review prepared for temporarily closed to the public. The Telephone (970) 826–5096. submission to OMB may be obtained closure includes entry upon the subject SUPPLEMENTARY INFORMATION: The from the Agency Submitting Officer. lands for the purposes of mineral Northwest Resource Advisory Council Comments on the form should be exploration and staking. This closure is will meet on Friday, December 3, 1999, submitted to the Agency Submitting necessary to provide for public safety at the Garfield County Courthouse, Suite Officer. due to the discovery of hazardous 302, 109 8th Street, Glenwood Springs, FOR FURTHER INFORMATION CONTACT: materials within the following described Colorado. The meeting will start at 9 OPIC Agency Submitting Officer: Carol public lands: a.m. and include election of officials Brock, Records Manager, Overseas T. 6 N., R. 50 E. and goal setting for the Northwest Private Investment Corporation, 1100 Sec. 17, SE 1⁄4; Colorado Resource Advisory Council; New York Avenue, NW., Washington, 1 1 Sec. 16, NE ⁄4 NW ⁄4; and discussions of the proposed DC 20527; 202/336–8563. Sec. 9, SE1⁄4 NE1⁄4; NE1⁄4 SE1⁄4; SW1⁄4 SE1⁄4; 1 1 statewide recreation guidelines, SUMMARY OF FORM UNDER REVIEW: Sec. 10, N ⁄2 N ⁄2; Kremmling Field Office Planning Type of Request: Approval of a Containing 520 acres, more or less. Amendments, and Craig Field Office revised form combining two forms, one EFFECTIVE DATES: This closure goes into Fire Management Planning. for U.S. and one for foreign sponsors, effect on October 7, 1999, and will The meeting is open to the public. OPIC–129 (OMB 3420–0018), which remain in effect until the Assistant Field Interested persons may make oral expires 10/31/99 and OPIC–130 (OMB Manager, Tonopah Field Station, statements at the meetings or submit 3420–0017) which expires 11/30/99, determines the closure is no longer written statements at the meeting. Per- respectively. Three months expiration needed. person time limits for oral statements date extensions are being processed. FOR FURTHER INFORMATION CONTACT: may be set to allow all interested Title: Sponsor Disclosure Report. Terry Neumann, Tonopah Field Station, persons an opportunity to speak. Form Number: OPIC–129. 1553 South Main Street, Tonopah, NV Summary minutes of council Frequency of Use: Once per 89049. Telephone (775) 482–7800. meetings are maintained at the Bureau significant investor per project. of Land Management Offices in Grand Type of Respondents: Business or Authority: The authority for this closure is Junction and Craig, Colorado. They are other institutions and individuals. 43 CFR 8364.1. Any person who fails to Standard Industrial Classification comply with a closure order is subject to available for public inspection and arrest and fines and/or imprisonment not to reproduction during regular business Codes: All. exceed 12 months in accordance with hours within thirty (30) days following Description of Affected Public: U.S. applicable provisions of 18 USC 3571. This the meeting. companies or citizens investing overseas. closure applies to all persons excluding (1) Dated: October 13, 1999. public officials and emergency and law Reporting Hours: 6 hours per project. enforcement personnel engaged in official Mark T. Morse, Number of Responses: 122.5 per year. business and (2) any person expressly Center Manager, Northwest Center. Federal Cost: $9,800 per year. authorized in writing by the Assistant Field [FR Doc. 99–27413 Filed 10–19–99; 8:45 am] Authority for Information Collection: Manager, Tonopah, to enter the closed area. BILLING CODE 4310±70±P Sections 231, 234 (b) and (c) of the The closure area is posted and a map of the Foreign Assistance Act of 1961, as closure area is posted in the Tonopah Post amended. Office. OVERSEAS PRIVATE INVESTMENT Abstract (Needs and Uses): The Dated: October 7, 1999. CORPORATION Sponsor Disclosure Report is the W. Craig MacKinnon, principal document used by OPIC to Assistant Field Manager, Tonopah. Submission for OMB Review; gather information from project [FR Doc. 99–27310 Filed 10–19–99; 8:45 am] Comment Request sponsors on whether a project might BILLING CODE 4310±HC±P harm the U.S., and describes sponsor AGENCY: Overseas Private Investment activities with the U.S. Government and Corporation. other information for the underwriting DEPARTMENT OF THE INTERIOR ACTION: Request for comments. and analysis of a project. It also provides notification of credit Bureau of Land Management SUMMARY: Under the provisions of the investigations that will be performed. Paperwork Reduction Act (44 U.S.C. [CO±010±07±1020±00±241A] Chapter 35), agencies are required to Dated: October 14, 1999. James R. Offutt, Northwest Colorado Resource publish a Notice in the Federal Register Assistant General Counsel for Administrative Advisory Council Meeting notifying the public that the Agency is preparing an information collection Affairs, Department of Legal Affairs. AGENCY: Bureau of Land Management, request for OMB review and approval [FR Doc. 99–27406 Filed 10–19–99; 8:45 am] Interior. and to request public review and BILLING CODE 3210±01±P VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56515 INTERNATIONAL TRADE except those who have been granted High Tech, Inc.; Ningbo Konit COMMISSION access to BPI under a Commission Industries, Inc.; and Tridus administrative protective order (APO) International, Inc. (‘‘respondents’’) on [Investigation No. 731±TA±811 (Final)] and are included on the Commission’s the basis of a consent order. The order Drams of One Megabit and Above APO service list in this investigation. provided that respondents shall not sell From Taiwan; Notice of Commission See 19 CFR 201.35(b)(1), (2). The time for importation into the United States, Determination To Conduct a Portion of for the parties’ presentations and import into the United States, or sell in the Hearing in Camera rebuttals in the in camera session will the United States after importation be taken from their respective overall neodymium-iron-boron magnets that AGENCY: U.S. International Trade allotments for the hearing. All persons infringe any of claims 1–3 of U.S. Commission. planning to attend the in camera Letters Patent 4,588,439, (the ‘‘ ‘439 ACTION: Closure of a portion of a portions of the hearing should be patent’’), except under consent or Commission hearing. prepared to present proper license from the complainant. identification. On March 6, 1996, complainant SUMMARY: Upon request of respondent Authority: The General Counsel has alleged that respondents were in Taiwan Semiconductor Industry certified, pursuant to Commission Rule violation of the consent order. The Association (‘‘TSIA’’) and its member 201.39 (19 CFR 201.39) that, in her opinion, matter was referred to the companies, the Commission has a portion of the Commission’s hearing in administrative law judge (‘‘ALJ’’) who determined to conduct a portion of its DRAMs of One Megabit and Above from presided over the original investigation, hearing in the above-captioned Taiwan, Inv. No. 731–TA–811 (Final), may be and on December 24, 1996, the ALJ investigation scheduled for October 19, closed to the public to prevent the disclosure of BPI. issued a recommended determination 1999, in camera. See Commission rules (‘‘RD’’) that respondents had violated Issued: October 15, 1999. 207.24(d), 201.13(m) and 201.36(b)(4) the consent order, and that a civil (19 CFR §§ 207.24(d), 201.13(m) and By order of the Commission. penalty of $1.625 million should be 201.36(b)(4)). The remainder of the Donna R. Koehnke, levied. hearing will be open to the public. The Secretary. On September 26, 1997, the Commission has determined that the [FR Doc. 99–27401 Filed 10–19–99; 8:45 am] Commission determined that seven-day advance notice of the change BILLING CODE 7020±02±P respondents had violated the consent to a meeting was not possible. See order and assessed a civil penalty of Commission rule 201.35(a), (c)(1) (19 $1.55 million. CFR 201.35(a), (c)(1)). INTERNATIONAL TRADE On June 8, 1999, complainant’s FOR FURTHER INFORMATION CONTACT: COMMISSION successor in interest, YBM Magnex, Inc., Shara L. Aranoff, Office of the General [Inv. No. 337-TA±372 (Enforcement and respondents executed an agreement Counsel, U.S. International Trade Proceeding)] providing a license for respondents to Commission, telephone 202–205–3090, manufacture, import, and sell magnets e-mail [email protected]. Hearing- Certain Neodymium-Iron-Boron covered by the ’439 patent. On June 17, impaired individuals are advised that Magnets, Magnet Alloys, and Articles 1999, the parties filed a Joint Motion to information on this matter may be Containing Same; Notice of Vacate the Commission’s Civil Penalty obtained by contacting the Commission Decision Vacating an Order. On June 29, 1999, the Commission’s TDD terminal on 202– Order Imposing a Civil Penalty for Commission’s Office of Unfair Import 205–3105. Violation of a Consent Order and Investigations (‘‘OUII’’) filed its SUPPLEMENTARY INFORMATION: The Dismissing Formal Enforcement response to the joint motion. On July 9, Commission believes that TSIA has Proceeding 1999, respondents filed their Motion for justified the need for a closed session. Leave to File a Reply to OUII’s Response TSIA seeks a closed session to allow for AGENCY: International Trade Commission. to Joint Motion to Vacate the a discussion of market share data; Commission’s Civil Penalty Order, and ACTION: Notice. financial performance data of individual attached the reply to the motion. domestic producers including the SUMMARY: This action is taken under the petitioner, Micron; market trends data; Notice is hereby given that authority of section 337 of the Tariff Act and data regarding product the Commission has vacated its of 1930 (19 U.S.C. 1337) and section differentiation and market segmentation September 26, 1997, order imposing a 210.76 of the Commission’s Rules of on a company-specific basis. In making civil penalty in the amount of Practice and Procedure (19 CFR 210.76). this decision, the Commission $1,550,000 on San Huan New Materials nevertheless reaffirms its belief that High Tech, Inc.; Ningbo Konit Copies of the Commission’s order and whenever possible its business should Industries, Inc.; and Tridus all other nonconfidential documents be conducted in public. International, Inc. for violation of the filed in connection with this proceeding The hearing will begin with public consent order issued on October 11, are or will be available for inspection presentations by the petitioner Micron 1995, and that the Commission has during official business hours (8:45 a.m. Technology, Inc. and respondents, with dismissed the formal enforcement to 5:15 p.m.) in the Office of the questions from the Commission. In proceeding instituted on May 16, 1996. Secretary, U.S. International Trade addition, the hearing will include a 15- FOR FURTHER INFORMATION CONTACT: Commission, 500 E Street SW., minute in camera session for a Michael Diehl, Office of the General Washington, DC 20436, telephone 202– confidential presentation by TSIA and Counsel, U.S. International Trade 205–2000. Hearing-impaired persons are for questions from the Commission Commission, telephone 202–205–3095. advised that information on the matter relating to the BPI, followed by a 15- SUPPLEMENTARY INFORMATION: On can be obtained by contacting the minute in camera rebuttal presentation October 11, 1995, the Commission Commission’s TDD terminal at 202– by petitioner. For any in camera session terminated this investigation as to 205–1810. the room will be cleared of all persons respondents San Huan New Materials Issued: October 13, 1999. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56516 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices By order of the Commission. wishing to address the DAB must notify Reduction Act of 1995 (Pub. L. 104–13, Donna R. Koehnke, the Designated Federal Employee (DFE) 44 U.S.C. Chapter 35). A copy of each Secretary. in writing at least twenty-four hours individual ICR, with applicable [FR Doc. 99–27400 Filed 10–10–99; 8:45 am] before the DAB meeting. The supporting documentation, may be BILLING CODE 7020±02±P notification must include the requestor’s obtained by calling the Department of name, organizational affiliation, a short Labor, Departmental Clearance Officer, statement describing the topic to be Ira Mills ((202) 219–5096 ext. 143) or by DEPARTMENT OF JUSTICE addressed, and the amount of time E-Mail to [email protected]. requested. Oral statements to the DAB Comments should be sent to Office of Federal Bureau of Investigation will be limited to five minutes and Information and Regulatory Affairs, limited to subject matter directly related Attn: OMB Desk Officer for BLS, DM, DNA Advisory Board Meeting to the DAB’s agenda, unless otherwise ESA, ETA, MSHA, OSHA, PWBA, or permitted by the Chairman. VETS, Officer of Management and Pursuant to the provisions of the Any member of the public may file a Budget, Room 10235, Washington, DC Federal Advisory Committee Act, notice written statement for the record 20503 ((202) 395–7316) on or before is hereby given that the DNA Advisory concerning the DAB and its work before November 19, 1999. Board (DAB) Statistics Subcommittee or after the meeting. Written statements The OMB is particularly interested in will meet on November 16, 1999, from for the record will be furnished to each comments which: 1 pm until 4 pm at The Double Tree DAB member for their consideration • Evaluate whether the proposed Hotel, 300 Army Navy Drive, Arlington, and will be included in the official collection of information is necessary Virginia, 22202. The DAB will meet on minutes of a DAB meeting. Written for the proper performance of the November 17, 1999, from 10 am until 4 statements must be type-written on 81⁄2′′ functions of the agency, including pm at the Double Tree Hotel, 300 Army × 11′′ xerographic weight paper, one whether the information will have Navy Drive, Arlington, Virginia 22202. side only, and bound only by a paper practical utility; All attendees will be admitted only after clip (not stapled). All pages must be • Evaluate the accuracy of the displaying personal identification numbered. Statements should include agency’s estimate of the burden of the which bears a photograph of the the Name, Organizational Affiliation, proposed collection of information, attendee. Address, and Telephone number of the including the validity of the The DAB’s scope of authority is: To author(s). Written statements for the methodology and assumptions used; develop, and if appropriate, periodically record will be included in minutes of • Enhance the quality, utility, and revise, recommended standards for the meeting immediately following the clarity of the information to be quality assurance to the Director of the receipt of the written statement, unless collected; and FBI, including standards for testing the the statement is received within three • Minimize the burden of the proficiency of forensic laboratories, and weeks of the meeting. Under this collection of information on those who forensic analysts, in conducting analysis circumstance, the written statement will are to respond, including through the of DNA; To recommend standards to the be included with the minutes of the use of appropriate automated, Director of the FBI which specify following meeting. Written statements electronic, mechanical, or other criteria for quality assurance and for the record should be submitted to technological collection techniques or proficiency tests to be applied to the the DFE. other forms of information technology, various types of DNA analysis used by Inquiries may be addressed to the e.g., permitting electronic submission of forensic laboratories, including DFE, Dr. Dwight E. Adams, Chief, responses. statistical and population genetics Scientific Analysis Section, Laboratory Agency: Bureau of Labor Statistics. issues affecting the evaluation of the Division—Room 3266, Federal Bureau Title: Point of Purchase Survey. frequency of occurrence of DNA profiles of Investigation, 935 Pennsylvania OMB Number: 1220–0044. calculated from pertinent population Avenue, NW, Washington, DC 20535– Frequency: Quarterly. database(s); To recommend standards 0001, (202) 324–4416, FAX (202) 324– Affected Public: Individuals or for acceptance of DNA profiles in the 1462. households. Number of Respondents: 17,827. FBI’s Combined DNA Index System Dated: October 14, 1999. (CODIS) which take account of relevant Estimated Time Per respondent: 11 Dwight E. Adams, privacy, law enforcement and technical minutes. issues; and, To make recommendations Chief, Scientific Analysis Section, Federal Total Burden Hours: 12,320. Bureau of Investigation. for a system for grading proficiency Total Annualized capital/startup testing performance to determine [FR Doc. 99–27309 Filed 10–19–99; 8:45 am] costs: $0. BILLING CODE 4410±02±P Total annual costs (operating/ whether a laboratory is performing maintaining systems or purchasing acceptably. The topics to be discussed at the DAB services): $0. Descripton: The purpose of this Statistics Subcommittee meeting DEPARTMENT OF LABOR collection is to develop and maintain a include mixtures, parentage and Office of the Secretary timely list of retail, wholesale, and uniqueness. The topics to be discussed service establishments at which people at the DAB meeting include: a review of Submission for OMB Review; shop for specific consumers items. The minutes from the April 23, 1999, Comment Request information collected is used to select meeting; development of an audit establishments for pricing market basket document for the quality assurance October 13, 1999. items as needed for the Consumer Price standards, a discussion concerning The Department of Labor (DOL) has Index. privacy issues and a report and submitted the following public discussion of the statistics information collection requests (ICRs) to Ira L. Mills, subcommittee meeting. the Office of Management and Budget Departmental Clearance Officer. The meeting is open to the public on (OMB) review and approval in [FR Doc. 99–27384 Filed 10–19–99; 8:45 am] a first-come, first seated basis. Anyone accordance with the Paperwork BILLING CODE 4510±24±M VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56517 NATIONAL ARCHIVES AND RECORDS memorandums concerning a proposed Routine administrative records common ADMINISTRATION schedule. These, too, may be requested. to most agencies are approved for Requesters will be given 30 days to disposal in the General Records Records Schedules for Electronic submit comments. Schedules (GRS), which are disposition Copies Previously Covered by General Some schedules submitted in schedules issued by NARA that apply Records Schedule 20; Availability and accordance with NARA Bulletin 99–04 Government-wide. Request for Comments group records by program, function, or In the past, NARA approved the organizational element. These schedules disposal of electronic copies of records AGENCY: National Archives and Records do not include descriptions at the file created using electronic mail and word Administration, Office of Records series level, but, instead, provide processing via General Records Services—Washington, DC. citations to previously approved Schedule 20, Items 13 (word processing ACTION: Notice of availability of schedules or agency records disposition documents) and 14 (electronic mail). proposed records schedules; request for manuals (see SUPPLEMENTARY However, NARA has determined that a comments. INFORMATION section of this notice). To different approach to the disposition of electronic copies is needed. In 1998, the SUMMARY: The National Archives and facilitate review of such disposition Records Administration (NARA) requests, previously approved schedules Archivist of the United States publishes notice at least once monthly or manuals that are cited may be established an interagency Electronic Records Work Group to address this of certain Federal agency requests for requested in addition to schedules for issue and pursuant to its records disposition authority (records the electronic copies. NARA will recommendations, decided that agencies schedules). Once approved by NARA, provide the first 100 pages at no cost. must submit schedules for the electronic records schedules provide mandatory NARA may charge $.20 per page for copies of program records and instructions on what happens to records additional copies. These materials also administrative records not covered by when no longer needed for current may be examined at no cost at the the GRS. On March 25, 1999, the Government business. They authorize National Archives at College Park (8601 Archivist issued NARA Bulletin 99–04, the preservation of records of Adelphi Road, College Park, MD). which tells agencies what they must do continuing value in the National ADDRESSES: To request a copy of any records schedule identified in this to schedule electronic copies associated Archives of the United States and the with previously scheduled program destruction, after a specified period, of notice, write to the Life Cycle Management Division (NWML), records and certain administrative records lacking administrative, legal, records that were previously scheduled research, or other value. Notice is National Archives and Records Administration (NARA), 8601 Adelphi under GRS 20, Items 13 and 14. published for records schedules in Schedules submitted in accordance Road, College Park, MD 20740–6001. which agencies propose to destroy with NARA Bulletin 99–04 only cover Requests also may be transmitted by records not previously authorized for the electronic copies associated with FAX to 301–713–6852 or by e-mail to disposal or reduce the retention period previously scheduled series. Agencies [email protected]. of records already authorized for that wish to schedule hitherto Requesters must cite the control disposal. unscheduled series must submit number, which appears in parentheses This request for comments pertains separate SF 115s that cover both after the name of the agency which solely to schedules for electronic copies recordkeeping copies and electronic submitted the schedule, and must of records created using word copies used to create them. processing and electronic mail where provide a mailing address. Those who In developing SF 115s for the the recordkeeping copies are already desire appraisal reports and/or copies of electronic copies of scheduled records, scheduled. (Electronic copies are previously approved schedules or agencies may use either of two records created using word processing manuals should so indicate in their scheduling models. They may add an or electronic mail software that remain request. appropriate disposition for the in storage on the computer system after FOR FURTHER INFORMATION CONTACT: electronic copies formerly covered by the recordkeeping copies are produced.) Marie Allen, Director, Life Cycle GRS 20, Items 13 and 14, to every item These records were previously Management Division (NWML), in their manuals or records schedules approved for disposal under General National Archives and Records where the recordkeeping copy has been Records Schedule 20, Items 13 and 14. Administration, 8601 Adelphi Road, created with a word processing or Pursuant to NARA Bulletin 99–04, College Park, MD 20740–6001. electronic mail application. This agencies must submit schedules for the Telephone: (301) 713–7110. E-mail: approach is described as Model 1 in electronic copies associated with [email protected]. Bulletin 99–04. Alternatively, agencies program records and administrative SUPPLEMENTARY INFORMATION: Each year may group records by program, records not covered by the General Federal agencies create billions of function, or organizational component Records Schedules. NARA invites records on paper, film, magnetic tape, and propose disposition instructions for public comments on such records and other media. To control this the electronic copies associated with schedules, as required by 44 U.S.C. accumulation, agency records managers each grouping. This approach is 3303a(a). To facilitate review of these prepare schedules proposing retention described as Model 2 in the Bulletin. schedules, their availability for periods for records and submit these Schedules that follow Model 2 do not comment is announced in Federal schedules for NARA approval, using the describe records at the series level. Register notices separate from those Standard Form (SF) 115, Request for For each schedule covered by this used for other records disposition Records Disposition Authority. These notice the following information is schedules. schedules provide for the timely transfer provided: name of the Federal agency DATES: Requests for copies must be into the National Archives of and any subdivisions requesting received in writing on or before historically valuable records and disposition authority; the organizational December 6, 1999. On request, NARA authorize the disposal of all other unit(s) accumulating the records or a will send a copy of the schedule. NARA records after the agency no longer needs statement that the schedule has agency- staff usually prepare appraisal the records to conduct its business. wide applicability in the case of VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56518 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices schedules that cover records that may be TIME/DATE: 9–12 p.m. on Friday, d. Discussion accumulated throughout an agency; the November 5, 1999. VI. Outcomes-based Evaluation: control number assigned to each STATUS: Open. Agency-wide Initiatives schedule; the total number of schedule ADDRESS: The Board Room of American Dated: October 14, 1999. items; the number of temporary items Society of Association Executives, 1575 Linda Bell, (the record series proposed for I Street, NW., Washington, DC 20005– destruction); a brief description of the Director of Policy, Planning and Budget, 1168, (202) 626–2723. National Foundation on the Arts and temporary electronic copies; and Humanities, Institute of Museum and Library citations to previously approved SF FOR FURTHER INFORMATION CONTACT: Elizabeth Lyons, Special Assistant to the Services. 115s or printed disposition manuals that [FR Doc. 99–27518 Filed 10–18–99; 1:07 am] scheduled the recordkeeping copies Director, Institute of Museum and associated with the electronic copies Library Services, 1100 Pennsylvania BILLING CODE 7036±01±M covered by the pending schedule. If a Avenue, NW, Room 510, Washington, cited manual or schedule is available DC 20506, (202) 606–4649. from the Government Printing Office or SUPPLEMENTARY INFORMATION: The NORTHEAST DAIRY COMPACT has been posted to a publicly available National Museum Services Board is COMMISSION established under the Museum Services Web site, this too is noted. Notice of Meeting Further information about the Act, Title II of the Arts, Humanities, and disposition process is available on Cultural Affairs Act of 1976, Public Law AGENCY: Northeast Dairy Compact request. 94–462. The Board has responsibility for Commission. the general policies with respect to the Schedule Pending ACTION: Notice of meeting. powers, duties, and authorities vested in 1. Department of Labor, Women’s the Institute under the Museum Services SUMMARY: The Compact Commission Bureau (N9–86–00–1, 5 items, 5 Act. will hold its monthly meeting to temporary items). Electronic copies of The United States National consider matters relating to records created using electronic mail Commission on Libraries and administration and enforcement of the and word processing that relate to Information Science (NCLIS) is price regulation, including the reports agency publications, speeches made by established under Public Law 91–345 as and recommendations of the the Director or other designated staff amended, The National Commission on Commission’s standing Committees. members, informational releases, annual Libraries and Information Science Act. The Commission will also hold its reports, and such issuances as In accordance with section 5(b) of the deliberative meeting to consider organization charts and directives. This Act, the Commission has the whether to implement a supply schedule follows Model 1 as described responsibility for advising the Director management program. The deliberative in the SUPPLEMENTARY INFORMATION of the Institute of Museum and Library meeting was postponed at the section of this notice. Recordkeeping Services on general policies relating to September 1, 1999 and October 6, 1999 copies of these files are included in library services. meetings. Disposition Job No. N1–86–90–1. The meeting on Friday, November 5, DATES: The meeting is scheduled for Dated: October 12, 1999. 1999 will be open to the public. If you 10:00 a.m. on Wednesday, November Michael J. Kurtz, need special accommodations due to a 10, 1999. Assistant Archivist for Record Services— disability, please contact: Institute of ADDRESSES: The meeting will be held at Washington, DC. Museum and Library Services, 1100 The Centennial Inn, Armenia White [FR Doc. 99–27373 Filed 10–19–99; 8:45 am] Pennsylvania Avenue, NW, Washington, Room, 96 Pleasant Street, Concord, New BILLING CODE 7515±01±P DC 20506—(202) 606–8536—TDD (202) Hampshire (I–93 Exit 14). 606–8636 at least seven (7) days prior to FOR FURTHER INFORMATION CONTACT: the meeting date. Kenneth M. Becker, Executive Director, NATIONAL FOUNDATION ON THE Agenda—3rd Annual Meeting of the Northeast Dairy Compact Commission, ARTS AND THE HUMANITIES National Museum Services Board and 34 Barre Street, Suite 2, Montpelier, VT the National Commission on Libraries 05602. Telephone (802) 229–1941. Sunshine Act Meeting; Meeting of the and Information Science at The Board National Museum Services Board and Authority: 7 U.S.C. 7256. Room of American Society of the National Commission on Libraries Dated: October 14, 1999. Association Executives 1575 I Street, and Information Science NW. Washington, DC 20005–1168 on Kenneth M. Becker, Executive Director. AGENCY: Institute of Museum and Friday, November 5, 1999 [FR Doc. 99–27323 Filed 10–19–99; 8:45 am] Library Services. 9 a.m.–12 p.m. ACTION: Notice of meeting. BILLING CODE 1650±01±P I. Chairmen’s Welcome SUMMARY: This notice sets forth the II. Museums and Libraries and the 21st agenda of a forthcoming meeting of the Century Learner NUCLEAR REGULATORY National Museum Services Board and III. National Award for Library Service/ COMMISSION the National Commission on Libraries National Award for Museum [Docket No. 50±410] and Information Science. This notice Service also describes the function of the IV. Digital Library for Education Niagara Mohawk Power Corporation; boards. Notice of this meeting is a. White House Initiative Notice of Consideration of Issuance of required under the Government through b. IMLS Response Amendment to Facility Operating the Sunshine Act (Public Law 94–409) V. National Leadership Grants License and Opportunity for a Hearing and regulations of the Institute of a. Presentation–RISD Museum and Library Services, 45 CFR b. Panel Observers The U.S. Nuclear Regulatory 1180.84. c. Advisory Committee Reports Commission (the Commission or NRC) VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56519 is considering issuance of an bracketed information (information that requirements will not alter the operation amendment to Facility Operating must be supplied on a plant-specific of process variables, structures, systems, License No. NPF–69, issued to the basis, and which may change from plant and components described in the safety Niagara Mohawk Power Corporation to plant), (b) identifying plant-specific analyses. For each requirement in the (NMPC or the licensee), for operation of wording for system names, etc., and (c) STS that is more restrictive than the the Nine Mile Point Nuclear Station, changing NUREG–1433 and NUREG– CTS that the licensee proposes to adopt Unit No. 2 (NMP2), located in Oswego 1434 section wording to conform to in the ITS, the licensee has provided an County, New York. existing licensee practices. Such explanation as to why it has concluded The proposed amendment, requested changes are administrative in nature that adopting the more restrictive by the licensee in a letter dated October and do not impact initiators of analyzed requirement is desirable to ensure safe 16, 1998, was supplemented by letters events or assumed mitigation of operation of the facility because of dated December 30, 1998, May 10, June accident or transient events. specific design features of the plant. 15, July 30, August 2, 11, 16, 19, 27, Relocated changes are those involving Less restrictive changes are those September 10, and 30, 1999. The relocation of requirements and where CTS requirements are relaxed or application requests a full conversion surveillances for structures, systems, eliminated, or new plant operational from the current Technical components, or variables that do not flexibility is provided. The more Specifications (CTS) to a set of meet the criteria for inclusion in TS. significant ‘‘less restrictive’’ improved Technical Specifications (ITS) Relocated changes are those current TS requirements are justified on a case-by- based on NUREG–1433 and NUREG– requirements that do not satisfy or fall case basis. When requirements have 1434, ‘‘Standard Technical within any of the four criteria specified been shown to provide little or no safety Specifications (STS) for General Electric in 10 CFR 50.36(c)(2)(ii) and may be benefit, their removal from the TS may Plants, BWR/4 and BWR/6,’’ Revision 1, relocated to appropriate licensee- be appropriate. In most cases, dated April 1995. NUREG–1433 and controlled documents. relaxations previously granted to NUREG–1434 have been developed by The licensee’s application of the individual plants on a plant-specific the Commission’s staff through working screening criteria is described in basis were the result of (a) generic NRC groups composed of both NRC staff Attachment 1 of the licensee’s October actions, (b) new NRC staff positions that members and industry representatives, 16, 1998, submittal, which is entitled, have evolved from technological and have been endorsed by the NRC ‘‘Application of Selection Criteria to advancements and operating staff as part of an industry-wide NMP2 Technical Specifications’’ (Split experience, or (c) resolution of the initiative to standardize and improve Report) in Volume 1 of the submittal. Owners Groups’ comments on the the Technical Specifications (TS) for The affected structures, systems, Improved Standard Technical nuclear power plants. As part of this components or variables are not Specifications (ISTS). Generic submittal, the licensee has applied the assumed to be initiators of analyzed relaxations contained in NUREG–1433 criteria contained in the Commission’s events and are not assumed to mitigate and NUREG–1434 were reviewed by the ‘‘Final Policy Statement on Technical accident or transient events. The NRC staff and found to be acceptable Specification Improvements for Nuclear requirements and surveillances for these because they are consistent with current Power Reactors (Final Policy affected structures, systems, licensing practices and NRC regulations. Statement),’’ published in the Federal components, or variables will be The licensee’s design is being reviewed Register on July 22, 1993 (58 FR 39132), relocated from the TS to to determine if the specific design bases to the CTS, and, using NUREG–1433 administratively controlled documents and licensing bases are consistent with and NUREG–1434 as a basis, proposed such as the quality assurance program, the technical bases for the model an ITS for NMP2. The criteria in the the final safety analysis report (FSAR), requirements in NUREG–1433 and Final Policy Statement were the ITS BASES, the Technical NUREG–1434, thus providing a basis for subsequently added to 10 CFR 50.36, Requirements Manual (TRM) that is these revised TS, or if relaxation of the ‘‘Technical Specifications,’’ in a rule incorporated by reference in the FSAR, requirements in the CTS is warranted change that was published in the the Core Operating Limits Report based on the justification provided by Federal Register on July 19, 1995 (60 FR (COLR), the Offsite Dose Calculation the licensee. 36953) and became effective on August Manual (ODCM), the Inservice Testing These administrative, relocated, more 18, 1995. (IST) Program, or other licensee- restrictive, and less restrictive changes The licensee has categorized the controlled documents. Changes made to to the requirements of the CTS do not proposed changes to the CTS into four these documents will be made pursuant result in operations that will alter general groupings. These groupings are to 10 CFR 50.59 or other appropriate assumptions relative to mitigation of an characterized as administrative changes, control mechanisms, and may be made analyzed accident or transient event. relocated changes, more restrictive without prior NRC review and approval. In addition to the proposed changes changes, and less restrictive changes. In addition, the affected structures, solely involving the conversion, there Administrative changes are those that systems, components, or variables are are also proposed changes that are involve restructuring, renumbering, addressed in existing surveillance different from the requirements in both rewording, interpretation and complex procedures that are also subject to 10 the CTS and the STS (NUREG–1433 and rearranging of requirements, and other CFR 50.59. These proposed changes will NUREG–1434). These proposed beyond- changes not affecting technical content not impose or eliminate any scope issues to the ITS conversion are or substantially revising an operating requirements. as follows: requirement. The reformatting, More restrictive changes are those 1. ITS 3.1.8, changing the Scram renumbering and rewording process involving more stringent requirements Discharge Volume Vent and Drain Valve reflect the attributes of NUREG–1433 compared to the CTS for operation of ACTIONS to allow continued operation and NUREG–1434 and does not involve the facility. These more stringent with one valve in a line inoperable by technical changes to the existing TS. requirements do not result in operation isolating the penetration within 7 days The proposed changes include (a) that will alter assumptions relative to (ACTION A) and to allow continued providing the appropriate numbers, etc., the mitigation of an accident or operation with two valves in a line by for NUREG–1433 and NUREG–1434 transient event. The more restrictive isolating the penetration within 8 hours VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56520 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices (ACTION B). The ISTS requires the channels of degraded voltage and loss of Specifications to include: (a) More valves(s) to be restored to Operable voltage in lieu of three channels. restrictive upper and lower voltage status within 7 days. 10. ITS SR 3.4.1.1 requiring limits for various diesel generator (DG) 2. ITS 3.3.1.1, ITS 3.3.6.1, ITS 3.5.1, verification every 12 hours that Surveillances; (b) increasing the and ITS 3.5.2, adding a Note to the operation is in the ‘‘Unrestricted Zone’’ killowatt (KW) value for the single Reactor Protection System (RPS) of ITS Figure 3.4.1–1. This will ensure largest load surveillance requirement (Functions 3 and 4) and Isolation (Main that entry into a region where potential (SR) for the Division 3 DG; (c) relaxing Steam Line Isolation Valve (MSIV) instabilities can occur will not go the load range values for the 24-hour DG Functions) Instrumentation undetected. run to be consistent with Regulatory Specifications exempting the sensors 11. ITS 3.4.1, changing from 2 hours Guide (RG) 1.9 Reference 3 (ISTS Bases from response time testing and a Note to 8 hours the frequency for determining says 100% for 22 hours and 110% for to the Emergency Core Cooling System the Average Power Range Monitors 2 hours is consistent with RG 1.9 (ECCS)—Operating and—Shutdown (APRM) and Low Power Range Monitors Reference 3, but it isn’t); (d) increasing Specifications exempting the (LPRM) baseline noise level the first the DG start time in the event of a Loss instrumentation from response time time the unit is in the Restricted Zone. of Voltage signal from 13 seconds to testing. 12. ITS 3.4.5, changing the frequency 13.12 seconds; (e) adding a Note which 3. ITS 3.3.2.2, allowing the feedwater for monitoring the floor drain leakage exempts Surveillances pertaining to a pump to be removed from service in rate from 8 hours to 12 hours, and DG starting on a loss-of-coolant accident lieu of shutting down the unit to < 25% changing the airborne radioactivity (LOCA) signal and a LOCA/loss of Rated Thermal Power (RTP) when the monitoring Surveillance to be every 8 offsite power (LOOP) signal while in feedwater and main turbine high water hours. Modes 4 and 5 and during handling of level channel is inoperable and 13. ITS 3.5.1, changing the current irradiated fuel in the Secondary untripped. number of Automatic Depression Containment when the ECCS 4. ITS 3.3.3.1, ITS 3.3.3.2, ITS 3.3.8.2, System (ADS) valves required to operate subsystems are not required to be ITS 3.3.8.3 and ITS 3.4.7, adding a Note from seven to six. Operable; and (f) increasing the fuel oil 14. ITS 3.5.1, modifying the current to allow 6 hours to do Surveillance storage tank limits for the Division 1 requirement of manually opening the testing of the Post Accident Monitoring, and 2 DGs as well as the 6-day limits for ADS valves to only require the ADS Remote Shutdown System, RPS logic all three DGs. actuators to be cycled. bus Electrical Power Assemblies (EPAs), 21. ITS 3.8.4, changing the DC 15. ITS 3.6.1.3, changing the current RPS scram solenoid bus EPAs and Leak Sources—Operating Specification by: (a) requirement that each excess flow check Detection System, instrumentation revising of the battery load profile to be valve (EFCV) must ‘‘check flow’’ to channels prior to entering Actions. consistent with the load profile requiring each EFCV to actuate to its 5. ITS 3.3.4.2, adding an allowance to specified in the Updated Safety isolation position on an actual or Analysis Report (USAR); and (b) only remove the associated (Anticipated simulated instrument line break signal. Transient Without Scram ATWS)— addition of an allowance to perform a 16. ITS 3.6.1.3, changing the modified performance discharge test recirculating pump trip (RPT) breaker evolution to suspend the purging and (fast speed or slow speed, as applicable) every cycle in lieu of a service test. venting Limited Condition Operation 22. ITS 3.8.7, requiring that the from service, in lieu of removing the (LCO) Actions to within 1 hour, when inverters be capable of being powered entire pump from service. Standby Gas Treatment (SGT) from an uninterruptible power supply 6. ITS 3.3.5.1, ITS 3.3.8.1, ITS 3.3.8.2 subsystem(s) are inoperable. (direct current (DC) sources). Currently, and ITS 3.3.8.3, changing the Allowable 17. ITS 3.6.1.6, ITS 3.6.2.3 and ITS this is not required; this is a more Values for (a) the Low Pressure Cooling 3.5.2.4, deleting the current restrictive change. Injection (LPCI) and High Pressure Core requirements to verify position of 23. ITS 3.3.8.3, specifying an Spray (HPCS) minimum flow valves ‘‘automatic’’ valves in the RHR Drywell allowable value in the ITS for the time instrumentation; (b) the HPCS Spray, RHR Suppression Cooling, and delay setting of the RPS EPA—solenoid suppression pool water level swap over RHR Suppression Pool Spray Systems. instrumentation. instrumentation; (c) the Loss of Voltage 18. ITS 3.6.1.6 and ITS 3.6.2.4, 24. ITS 3.3.8.1, deleting a requirement and Degraded Voltage Functions, deleting the current requirement that in the STS for performing a channel including time delays; (d) the drywell spray and suppression pool check on undervoltage relays; the status Undervoltage, Overvoltage, and spray flows be through the heat of relays are continuously monitored. Underfrequency Functions for the RPS exchanger. 25. ITS 3.3.8.2, specifying allowances Logic Bus EPAs ; and (e) the 19. ITS 3.7.2 and ITS 3.7.3, allowing in allowable values for the time delay Undervoltage, Overvoltage, and a 7-day restoration time when both settings of the RPS EPA logic Underfrequency Functions for the RPS Control Room Envelope Filtration instrumentation. Scram Solonoid Bus EPAs. (CREF) subsystems are inoperable and a 26. ITS 3.3.4.2, adding additional 7. ITS 3.3.6.1, deleting the MODE 1 30-day restoration time when both verification of ATWS trip function and 2 requirements for certain control room envelope alternating bypass and time delays. Shutdown Cooling Isolation Functions current (AC) subsystems are inoperable, 27. ITS 3.3.8.1, The STS allows a 2- (residual heat removal (RHR) Equipment provided the remaining components of hour delay from entering into the Area temperature, Reactor Building Pipe the CREF System or Control Room associated Conditions and Required Chase Temperature, Reactor Building Envelope AC System maintains the Actions for a channel placed in an Temperature, and Reactor Vessel Water CREF System or Control Room Envelope inoperable status solely for the Level—Low, Level 3.) AC System safety function, as performance of required surveillances, 8. ITS 3.3.8.1 and ITS 3.3.5.1, deleting applicable. provided the associated function the Group 4 valves from isolation 20. ITS 3.8.1, ITS 3.8.2, and ITS 3.8.3, maintains DG initiation capability. This instrumentation requirements. changing AC Sources—Operating, AC is changed in the ITS ‘‘provided the 9. ITS 3.3.8.1, changing the Sources—Shutdown and Diesel Fuel Associated Function maintains loss of requirement to only requiring 2 Oil, Lube Oil, and Starting Air power (LOP) initiation capability.’’ VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56521 28. ITS 5.5.9.1.a, adding ‘‘specific 39. ITS 3.3.1.1, deleting the MSL Licensing Board Panel, will rule on the gravity’’ to the acceptability of new fuel radiation monitor reactor trip request and/or petition; and the oil prior to the addition to the DG fuel requirement and surveillance Secretary or the designated Atomic tanks. requirement based on the application of Safety and Licensing Board will issue a 29. ITS SR 3.6.3.1.2, adding a NEDO–31400A. notice of hearing or an appropriate description of an additional requirement 40. ITS 3.7.2 SR 3.7.2.1, deleting the order. in the Bases SR 3.6.3.1.2 regarding when staggered testing requirement for the As required by 10 CFR 2.714, a to perform the surveillance (‘‘within 30 CREF subsystem. petition for leave to intervene shall set minutes following heatup of the system 41. ITS 3.3.1.2, adding a note to ITS forth with particularity the interest of to normal operating temperature.’’) SR 3.3.1.2.5 that defers determination of the petitioner in the proceeding, and 30. ITS SR 3.3.1.1.16, modifying the the signal-to-noise ratio in Mode 5 if how that interest may be affected by the Response Time Testing requirement for less than or equal to four fuel assemblies results of the proceeding. The petition Function 9, Turbine Control Valve Fast are adjacent to the source range should specifically explain the reasons Closure, Trip Oil Pressure—Low by monitors (SRM) and no fuel is in the why intervention should be permitted stating that the response time is quadrant. with particular reference to the measured from the start of the control 42. ITS 3.3.1.2, changing the STS following factors: (1) The nature of the valve fast closure, not when the sensor Action to ‘‘initiate action to insert all petitioner’s right under the Act to be (oil pressure sensor) exceeds its insertable control rods. * * *’’ to made a party to the proceeding; (2) the setpoint. ‘‘Initiate action to ‘‘fully’’ insert all nature and extent of the petitioner’s 31. ITS 3.3.5.1, specifying an ADS insertable control rods. * * *’’ property, financial, or other interest in 43. ITS 3.3.5.1, ITS Table 3.3.5.1–1, pressure setpoint of 150 psig, the proceeding; and (3) the possible changing footnote (a) from the STS to implementing Topical Report NEDC– effect of any order which may be include a citation of LCO 3.5.2. 32291 and making other changes entered in the proceeding on the 44. ITS 5.5.2.b, adding a note that the associated with moving Group 4 petitioner’s interest. The petition should provisions of SR 3.0.2 apply to isolation valves into the ECCS TS in the also identify the specific aspect(s) of the integrated leak tests at 24 months. ITS. subject matter of the proceeding as to 45. ITS 3.8.8, incorporating changes to which petitioner wishes to intervene. 32. ITS 3.3.5.1, Table 3.3.5.1–1, Condition A, B and C of the STS specifying an ADS pressure setpoint for Any person who has filed a petition for applicable to ‘‘one or more’’ Divisions leave to intervene or who has been low pressure core spray (LPCS) pump and to ‘‘one or both.’’ discharge pressure—high to be 150 psig admitted as a party may amend the 46. ITS 3.6.4.1, incorporating wording petition without requesting leave of the based on implementation of Topical changes that alter the meaning of Board up to 15 days prior to the first Report NEDC–32291. containment operability with respect to prehearing conference scheduled in the 33. ITS 3.3.2.1, deleting operational meeting surveillance requirements. proceeding, but such an amended details in CTS Table 3.3.6–2 not Before issuance of the proposed petition must satisfy the specificity required to be in TS, and providing license amendments, the Commission requirements described above. allowable values based on NEDO–2411. will have made findings required by the Not later than 15 days prior to the first 34. ITS 3.3.6.1, deleting the reactor Atomic Energy Act of 1954, as amended prehearing conference scheduled in the core isolation reactor core isolation (the Act) and the Commission’s proceeding, a petitioner shall file a cooling (RCIC) drywell pressure high regulations. supplement to the petition to intervene isolation functions, providing new By November 19, 1999, the licensee which must include a list of the RCIC/RHR Steam Flow Timer and SGT may file a request for a hearing with contentions which are sought to be Exhaust Radiation High isolation respect to issuance of the amendment to litigated in the matter. Each contention functional allowable values, and the NMP2 operating license and any must consist of a specific statement of deleting the main steam line (MSL) person whose interest may be affected the issue of law or fact to be raised or radiation high isolation function. by this proceeding and who wishes to controverted. In addition, the petitioner 35. ITS 3.6.1.2, changing the participate as a party in the proceeding shall provide a brief explanation of the requirement to verify that the air lock must file a written request for a hearing bases of the contention and a concise door seal leakage rate is within limit and a petition for leave to intervene. statement of the alleged facts or expert from ‘‘once per 7 days’’ to ‘‘once in 30 Requests for a hearing and a petition for opinion which support the contention days.’’ leave to intervene shall be filed in and on which the petitioner intends to 36. ITS 3.6.1.7, adding a note to allow accordance with the Commission’s rely in proving the contention at the separate condition entry for each ‘‘Rules of Practice for Domestic hearing. The petitioner must also suppression chamber-to-drywell Licensing Proceedings’’ in 10 CFR part provide references to those specific vacuum breaker. 2. Interested persons should consult a sources and documents of which the 37. ITS 3.6.1.7, changing the ACTION current copy of 10 CFR 2.714 which is petitioner is aware and on which the statement into two ACTION statements: available at the Commission’s Public petitioner intends to rely to establish ITS 3.6.1.7 ACTION B addresses the Document Room, the Gelman Building, those facts or expert opinion. Petitioner closing of the open vacuum breaker 2120 L Street, NW., Washington, DC, must provide sufficient information to within 72 hours, while ITS 3.6.1.7 and at the local public document room show that a genuine dispute exists with ACTION C addresses the verification/ located at the Reference and Documents the applicant on a material issue of law closing of the other vacuum breaker in Department, Penfield Library, State or fact. Contentions shall be limited to the line within 2 hours. However, both University of New York, Oswego, New matters within the scope of the ITS 3.6.1.7 Conditions B and C have York 13126. If a request for a hearing or amendment under consideration. The been modified such that the words ‘‘One petition for leave to intervene is filed by contention must be one which, if or more lines with’’ have been added. the above date, the Commission or an proven, would entitle the petitioner to 38. ITS 3.4.4, increasing the lift Atomic Safety and Licensing Board, relief. A petitioner who fails to file such setpoint tolerance for the safety relief designated by the Commission or by the a supplement which satisfies these valves to 3%. Chairman of the Atomic Safety and requirements with respect to at least one VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56522 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices contention will not be permitted to For the Nuclear Regulatory Commission. provides a 12 to 36 month window to participate as a party. Darl S. Hood, Sr., schedule full-participation exercises Those permitted to intervene become Project Manager, Section 1, Project while still meeting the biennial parties to the proceeding, subject to any Directorate I, Division of Licensing Project requirement specified in the regulations. Management, Office of Nuclear Reactor Conducting the Millstone full- limitations in the order granting leave to Regulation. participation exercise in calendar year intervene, and have the opportunity to [FR Doc. 99–27364 Filed 10–19–99; 8:45 am] 2000 places the exercise past the participate fully in the conduct of the BILLING CODE 7590±01±P previously scheduled biennial calendar hearing, including the opportunity to year of 1999. This one-time change in present evidence and cross-examine the exercise schedule would increase witnesses. NUCLEAR REGULATORY the interval between full-participation A request for a hearing or a petition COMMISSION exercises in this one instance from the for leave to intervene must be filed with [Docket Nos. 50±245, 50±336 and 50±423] previously scheduled 25 months to 31 the Secretary of the Commission, U.S. months, which is within the time span Nuclear Regulatory Commission, Northeast Nuclear Energy Company, et normally accepted for biennial Washington, DC 20555–0001, Attention: al. (Millstone Nuclear Power Station, exercises. Rulemakings and Adjudications Staff, or Unit Nos. 1, 2, and 3); Exemption The Commission, pursuant to 10 CFR may be delivered to the Commission’s 50.12(a)(1), may grant exemptions from I the requirements of 10 CFR part 50 that Public Document Room, the Gelman Northeast Nuclear Energy Company, are authorized by law, will not present Building, 2120 L Street, NW., et al. (NNECO or the licensee) is the an undue risk to public health and Washington, DC, by the above date. A holder of Facility Operating License safety, and are consistent with the copy of the petition should also be sent Nos. DPR–21, NPF–65, and NPF–49, common defense and security. The to the Office of the General Counsel, which authorize operation of the Commission, however, pursuant to 10 U.S. Nuclear Regulatory Commission, Millstone Nuclear Power Station, Units CFR 50.12(a)(2), will not consider Washington, DC 20555–0001, and to Mr. 1, 2, and 3 (Millstone or the facilities). granting an exemption unless special Mark J. Wetterhahn, attorney for the The facilities consist of two pressurized- circumstances are present. Under 10 licensee. water reactors (Units 2 and 3) licensed CFR 50.12(a)(2)(ii), special Nontimely filings of petitions for for operation and one boiling-water circumstances are present when leave to intervene, amended petitions, reactor (Unit 1) that is being application of the regulation in the supplemental petitions and/or requests decommissioned, located at the particular circumstances would not for hearing will not be entertained licensee’s site in New London County, serve the underlying purpose of the rule absent a determination by the Connecticut. The licenses provide, or is not necessary to achieve the underlying purpose of the rule. Under Commission, the presiding officer or the among other things, that the licensee is subject to all rules, regulations, and 10 CFR 50.12(a)(2)(v), special presiding Atomic Safety and Licensing orders of the U.S. Nuclear Regulatory circumstances are present whenever the Board that the petition and/or request Commission (NRC or the Commission) exemption would provide only should be granted based upon a now or hereafter in effect. temporary relief from the applicable balancing of the factors specified in 10 regulation and the licensee or applicant CFR 2.714(a)(1)(I)–(v) and 2.714(d). II has made good faith efforts to comply If a request for a hearing is received, Section IV.F.2.c of Appendix E to 10 with the regulation. CFR part 50 requires each licensee at the Commission’s staff may issue the III amendment after it completes its each site to conduct an exercise of technical review and prior to the offsite emergency plans biennially with The staff has completed its evaluation completion of any required hearing if it full participation by each offsite of NNECO’s request for an exemption and proposed compensatory measures publishes a further notice for public authority having a role under the plan. During such biennial full-participation that will be taken to maintain the level comment of its proposed finding of no exercises, the NRC evaluates onsite and of emergency preparedness at Millstone significant hazards consideration in the Federal Emergency Management between September 1999 and March accordance with 10 CFR 50.91 and Agency (FEMA) evaluates offsite 2000. Compensatory measures include 50.92. emergency preparedness activities. the conduct of a self-evaluated drill in For further details with respect to this NNECO successfully conducted a full- September 1999 in accordance with 10 action, see the application for participation exercise during the week CFR part 50, appendix E, section amendment dated October 16, 1998, as of August 21, 1997. By letter dated IV.F.2.b of the onsite emergency plan to supplemented by letters dated August 3, 1999, the licensee requested which offsite agencies in Connecticut December 30, 1998; May 10, June 15, an exemption from Sections IV.F.2.c of and New York have been invited to July 30, August 2, 11, 16, 19, 27, Appendix E regarding the conduct of a participate as a training activity for their September 10, and 30, 1999, which are full-participation exercise in September responders. Further, the licensee plans available for public inspection at the 1999. The licensee will conduct the an additional drill in October 1999 for Commission’s Public Document Room, Federally observed full-participation State and local responders. The the Gelman Building, 2120 L Street, emergency exercise before the end of underlying purpose for conducting a March 2000 rather than September biennial full-participation exercise is to NW., Washington, DC, and at the local 1999. Future full-participation exercises ensure that emergency organization public document room located at the will be scheduled biennially from the personnel are familiar with their duties Reference and Documents Department, year 2000. The NRC has provided and to test the adequacy of emergency Penfield Library, State University of flexibility in scheduling these exercises plans. The intent of this requirement New York, Oswego, New York 13126. by allowing licensees to schedule full- will be met by conducting these two Dated at Rockville, Maryland, this 14th day participation exercises at any time scheduled drills, one of which is of October, 1999. during the biennial calendar year. This specifically for offsite response VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56523 organizations. These drills are in excess licensee has made good faith efforts to a. Revisions to the index to reflect of what the regulation requires and comply with the regulation. Therefore, correct page numbers of corresponding provide a benefit by allowing more the Commission hereby grants the sections, opportunities for training of response exemption from Section IV.F.2.c of b. Revisions to the section titles used personnel. The staff considers that these Appendix E to 10 CFR part 50. in the TS sections, Bases, and Tables, as measures are adequate to maintain an Pursuant to 10 CFR 51.32, the well as the correction and addition of acceptable level of emergency Commission has determined that the subtitles to obtain standardization preparedness during this period, granting of this exemption will have no between both Salem units’ TSs, satisfying the underlying purpose of the significant impact on the quality of the c. Revision to the TS references that rule. Therefore, the special human environment (64 FR 50840). refer to other TS sections and tables to circumstances of 10 CFR 50.12(a)(2)(ii) This exemption is effective upon either provide the correct reference or to are satisfied. issuance. provide more specificity by reference to Only temporary relief from the actual subsections, Dated at Rockville, Maryland, this 14th day regulation is provided by the requested of October, 1999. d. Spelling and grammatical schedular exemption since an exercise corrections such as elimination of For the Nuclear Regulatory Commission. will be conducted at a future date. The duplicate or extraneous words, proper licensee has made a good faith effort to John A. Zwolinski, pluralization, more standard comply with the regulation. The Director, Division of Licensing Project abbreviations, exemption is being sought by the Management, Office of Nuclear Reactor e. Renumbering of TS Tables, licensee in voluntary response to a Regulation. f. Capitalize terms found in TS 1.0 request by the NRC to accommodate an [FR Doc. 99–27365 Filed 10–19–99; 8:45 am] when used in other TS sections, adjustment in exercise scheduling that BILLING CODE 7590±01±P g. Add units of measure that were affects multiple agencies, as discussed missing from acceptance criterion, during the annual NRC Region I and h. Other administrative changes. FEMA (Regions I, II, and III) exercise NUCLEAR REGULATORY The proposed action would also scheduling meeting held in White COMMISSION revise various surveillance requirements Plains, New York, in December 1998. At for instrumentation such as including this meeting, representatives of the [Docket Nos. 50±272 and 50±311] the correct operational mode States of Connecticut and New York applicability and adding channel concurred with rescheduling the NRC/ Public Service Electric and Gas functional tests and channel checks that FEMA evaluated exercise for the Company, Salem Nuclear Generating should have been incorporated when Millstone site. The revised exercise Station, Unit Nos. 1 and 2; prior amendments were issued. schedule allows for better balance in the Environmental Assessment and Finding of No Significant Impact Environmental Impacts of the Proposed use of federal resources. The exercise Action will be conducted in a time frame that The U.S. Nuclear Regulatory is within generally accepted policy. In The Commission has completed its Commission (the Commission) is evaluation of the proposed action and FEMA’s letter to the NRC dated July 14, considering issuance of amendments to 1999, FEMA Region I and FEMA concludes that the administrative and Facility Operating License Nos. DRP–70 editorial changes correct errors that Headquarters concurred with the change and DRP–75, issued to Public Service in exercise date. Also, NRC Region I, currently exist in the TSs and add Electric and Gas Company (the licensee) surveillance requirements that should who would be involved in evaluating for operation of the Salem Nuclear the onsite activities during these have been included in prior Generating Station, Unit Nos. 1 and 2, amendments. The proposed action does exercises, supported the schedule located in Salem County, New Jersey. change due to the need to relieve not modify the facility or affect the resource demands. The staff, having Environmental Assessment manner in which the facility is operated. Further, the addition of considered the schedule and resource Identification of the Proposed Action issues within FEMA and the NRC, and missing surveillance requirements the proposed licensee compensatory The proposed action would make would better demonstrate the measures, believes that the exemption administrative and editorial changes to operability of the affected plant request meets the special circumstances correct errors in the Technical components. of 10 CFR 50.12(a)(2)(v) and should be Specifications (TSs) that have either The proposed action will not increase granted. existed since initial issuance or were the probability or consequences of introduced during subsequent changes. accidents, no changes are being made in IV In addition, surveillance requirements the types of any effluents that may be The Commission has determined that, would be added that should have been released off site, and there is no pursuant to 10 CFR part 50, appendix E, incorporated within the TSs when the significant increase in occupational or this exemption is authorized by law, applicable amendment to the TSs was public radiation exposure. Therefore, will not endanger life or property or the approved by the NRC. there are no significant radiological common defense and security, and is The proposed action is in accordance environmental impacts associated with otherwise in the public interest. Further, with the licensee’s application for the proposed action. the Commission has determined, amendment dated November 14, 1997, With regard to potential non- pursuant to 10 CFR 50.12(a), that special as supplemented by letter dated August radiological impacts, the proposed circumstances of 10 CFR 50.12(a)(2)(ii) 25, 1999. action does not involve any historic and 10 CFR 50.12(a)(2)(v) are applicable sites. It does not affect non-radiological in that application of the regulation is The Need for the Proposed Action plant effluents and has no other not necessary to achieve the underlying The proposed action would correct environmental impact. Therefore, there purpose of the rule, and the exemption administrative and editorial errors in are no significant non-radiological would provide only temporary relief the TSs. These changes can generally be environmental impacts associated with from the applicable regulation and the described as: the proposed action. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56524 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Accordingly, the Commission NUCLEAR REGULATORY web site at http://www.nrc.gov/NRC/ concludes that there are no significant COMMISSION COMMISSION/SECYS/1998–101scy), environmental impacts associated with the staff discussed several issues the proposed action. Public Workshop On Revising The relevant to changing the Safety Goal Reactor Safety Goal Policy Policy Statement. The descriptions of Alternatives to the Proposed Action these issues are provided below. The AGENCY: Nuclear Regulatory As an alternative to the proposed NRC is soliciting feedback regarding Commission. action, the staff considered denial of the these issues, specifically with respect to: proposed action (i.e., the ‘‘no-action’’ ACTION: Notice of public workshop. • Should the policy statement be revised to address these issues? alternative). Denial of the application SUMMARY: The Nuclear Regulatory • What are the benefits of such would result in no change in current Commission (NRC) is considering environmental impacts. The revisions? modifying the reactor Safety Goal Policy • environmental impacts of the proposed What are the detriments of such Statement that was issued in 1986. revisions? action and the alternative action are Modifications are being considered for • similar. What alternatives should be three reasons: (1) To change or add to considered to address these issues? Alternative Use of Resources the basic policy established in the Other specific questions will be made statement; (2) to clarify the role of safety available on the NRC web site at (http: This action does not involve the use goals in the NRC’s regulatory process; of any resources not previously //www.nrc.gov/NRC/wwwforms.html) and (3) to make the policy statement two weeks prior to the workshop. considered in the Final Environmental consistent with our current agency Statement for the Salem Nuclear practices. NRC is soliciting public Changes or Additions to Basic Policy Generating Station dated April 1973. comments on modifications that are Established in the Statement Agencies and Persons Consulted being considered. 1. Core damage frequency is now considered a subsidiary objective to the In accordance with its stated policy, SUPPLEMENTARY INFORMATION: NRC’s Safety Goal Policy Statement was quantitative health objectives (QHOs). It on September 14, 1999, the staff may be appropriate to elevate it to a consulted with the New Jersey State originally published in 1986 after several years of consideration. The fundamental safety goal. official, Mr. Dennis Zannoni, Chief of 2. The second qualitative goal and the Bureau of Nuclear Engineering, Commission provided additional guidance in a Staff Requirements QHO deal with societal risk. However, regarding the environmental impact of these measures of societal risk differ in the proposed action. The State official Memorandum issued June 15, 1990. The current Safety Goal Policy contains two two key respects from the societal risk had no comments with respect to the calculations performed in other areas: environmental impact of the proposed qualitative safety goals defined as • follows: The policy statement defines a 10- action. However, the State commented • mile radius for calculating societal that certain proposed corrections were Individual members of the public should be provided a level of protection impacts, while the Regulatory Analysis no longer relevant due to previous Guidelines and environmental impact amendments. from the consequences of nuclear power plant operation such that individuals analyses use a 50 mile radius. • The calculational process used by Finding of No Significant Impact bear no significant additional risk to life the staff for comparison with the QHO and health. On the basis of the environmental is an average-individual risk, while the • Societal risks to life and health from assessment, the Commission concludes Regulatory Analysis Guidelines and nuclear power plant operation should that the proposed action will not have environmental analyses use a summed be comparable to or less than the risks a significant effect on the quality of the risk (over all individuals). human environment. Accordingly, the from generating electricity by viable Should the Safety Goal Policy be Commission has determined not to competing technologies and should not revised to better reflect societal risk? prepare an environmental impact be a significant addition to other 3. The goals and QHOs are described statement for the proposed action. societal risks. in terms of health risks; no goal has Two quantitative health objectives For further details with respect to the been established with respect to (QHOs) associated with the qualitative proposed action, see the licensee’s letter potential land contamination or other goals are also provided and are defined dated November 14, 1997, as environmental impacts. As evidenced as: supplemented by letter dated August 25, by the Chernobyl accident, this can be • The risk to an average individual in 1999, which are available for public a major societal impact of accidents the vicinity of a nuclear power plant of inspection at the Commission’s Public involving core damage and containment prompt fatalities that might result from Document Room, The Gelman Building, failure. Should such a goal be added? reactor accidents should not exceed 2120 L Street, NW., Washington, DC, 4. The QHOs are expressed in terms one-tenth of one percent (0.1 percent) of and at the local public document room of annual average frequencies. It may be the sum of prompt fatality risks located at the Salem Free Public Library, appropriate to also provide a resulting from other accidents to which 112 West Broadway, Salem, NJ 08079. quantitative goal on risks during members of the U.S. population are temporary plant configurations such as For the Nuclear Regulatory Commission. generally exposed. during PWR mid-loop operations, where Dated at Rockville, Maryland, this 14th day • The risk to the population in the risk can be substantially higher for a of October, 1999. area near a nuclear power plant of short period of time. Should such a goal Patrick D. Milano, Sr., cancer fatalities that might result from be included in the Safety Goal Policy Project Manager, Section 2, Project nuclear power plant operation should Statement? Directorate I, Division of Licensing Project not exceed one-tenth of one percent (0.1 Management, Office of Nuclear Reactor percent) of the sum of cancer fatality Clarifications on the Role of Safety Regulation. risks resulting from all other causes. Goals in NRC’s Regulatory Process [FR Doc. 99–27361 Filed 10–19–99; 8:45 am] In the document SECY–98–101 dated 5. In a June 15, 1990, SRM, the BILLING CODE 7590±01±P May 4, 1998 (available from the NRC Commission provided guidance to the VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56525 staff that the safety goals were to be Regulatory Research, MS–T10 F12, U.S. study’’). The modal study looked at used to define ‘‘how safe is safe Nuclear Regulatory Commission, possible rail and highway accidents and enough.’’ (In that SRM, the Commission Washington, DC, 20555–0001, (301– concluded that spent nuclear fuel cask characterized ‘‘how safe is safe enough’’ 415–5670), email: [email protected] designs would survive nearly all as ‘‘how far [the staff] should go when Date: November 9, 1999. transportation accidents without proposing safety enhancements, Agenda: Preliminary agenda is as releasing radioactive material to the including those to be considered under follows (a final agenda will be available environment. Over the next few years the Backfit Rule.’’) The policy statement at the workshop): NRC will revisit the conclusions of the itself does not include this guidance. 9:00 a.m. Introduction 1987 modal study to assure their Should it be added? 9:30–10:15 Overview of issues continued validity. Risk insights 6. Recognizing recent progress in risk- 10:15–10:30 Break obtained using modern analysis informed regulatory activities, should 10:30–12:00 Discussion of specific techniques, physical testing, and discussion of the relationship between questions through interaction with stakeholders the safety goals and these activities be 12:00–1:00 Lunch break and the public, will support NRC’s considered for inclusion in the policy 1:00–2:30 Discussion of specific ongoing efforts to assure that its statement? questions (continued) regulatory actions are risk-informed and 7. The Advisory Committee on 2:30–2:45 Break effective. Ongoing public interactions Reactor Safeguards (ACRS) discussed 2:45–4:00 Discussion of specific throughout this project will help ensure the potential use of safety goals to questions (continued) that public concerns are effectively define the adequate protection concept. 4:00–5:00 Wrap-up discussion identified and understood, and that the Should such a definition be pursued? Location: Doubletree Hotel, 1750 project is designed considering these 8. The policy statement mentions Rockville Pike, Rockville Maryland issues. defense-in-depth but does not define it. 20852, (301–468–1100). As the first step, NRC will conduct Should the policy be expanded to Registration: No registration fee for public meetings with the general public provide more guidance on the extent workshop; however, notification of with the goal of having open, and nature of defense-in-depth? attendance is requested so that adequate constructive discussions by space, etc., for the workshop can be stakeholders so that the NRC can listen Changes To Make the Statement arranged. Notification of attendance to and better understand any public Consistent With Current Practices should be directed to Joseph Murphy, concerns regarding spent nuclear fuel 9. Two issues were identified in the Office of Nuclear Regulatory Research, transport package safety. Francis X. staff’s recent risk-informed regulatory MS: T10–F12, U. S. Nuclear Regulatory Cameron, Special Counsel for Public guidance development activities, and Commission, Washington, DC, 20555– Liaison, in the Commission’s Office of discussed as policy issues in SECY–96– 0001, (301) 415–5670, email: the General Counsel, will be the 218, dated October 11, 1996, and SECY– [email protected] convenor and facilitator for the 97–287, dated December 12, 1997: FOR FURTHER INFORMATION CONTACT: meetings. • Plant-specific application of safety Joseph Murphy, Office of Nuclear DATES: Two public meetings will be goals, including a containment Regulatory Research, MS: T10 F12, U. S. held. The first will be held in Bethesda, performance guideline derived from the Nuclear Regulatory Commission, MD, on November 17, 1999, from 8:00 QHOs (and defined in terms of a large Washington, DC, 20555–0001, (301) a.m. to 6:00 p.m. The second will be early release frequency (LERF)). 415–5670, email: [email protected] held in Henderson, NV, on December 8, • Treatment of uncertainties in plant- Dated this 14th day of October 1999. 1999, from 8:00 a.m. to 4:30 p.m. with specific, risk-informed decisionmaking. For the Nuclear Regulatory Commission. an evening session from 6:30 p.m. to It may be appropriate to discuss the 10:00 p.m. resolution of these issues in the Safety Thomas L. King, ADDRESSES: The location of the first Goal Policy Statement. Director, Division of Risk Analysis and 10. The current policy statement Applications, Office of Nuclear Regulatory meeting is the Bethesda Hyatt Hotel, contains a proposed general plant Research. One Bethesda Metro (7400 Wisconsin performance guideline of 10¥6 per [FR Doc. 99–27363 Filed 10–19–99; 8:45 am] Avenue), Bethesda, MD. The second reactor year for a large release of BILLING CODE 7590±01±P meeting will be held at the Henderson radioactive material. In SECY–93–138 Convention Center, 200 Water Street, the staff documented its conclusion that Henderson, NV. such a guideline would be significantly NUCLEAR REGULATORY INFORMATION: Contact Francis X. more restrictive than the QHOs. The COMMISSION Cameron, Special Counsel for Public staff further recommended that work to Liaison, Office of the General Counsel, NRC To Hold Public Meetings on Spent Nuclear Regulatory Commission, develop such a guideline be terminated. Fuel Shipping Cask Accident Studies The Commission approved this Washington DC, 20555–0001, recommendation in a June 10, 1993, AGENCY: Nuclear Regulatory Telephone: 301–415–1642. SRM. Therefore, removal of this general Commission. SUPPLEMENTARY INFORMATION: The risk of plant performance guideline from the ACTION: Notice of public meeting on transporting highly radioactive spent policy statement should be considered. spent nuclear fuel transportation nuclear fuel from nuclear power plants studies. to a centralized storage facility or to an Workshop Meeting Information underground repository is an issue that The Commission intends to conduct a SUMMARY: The U.S. Nuclear Regulatory has recently received increased NRC workshop to solicit information related Commission is initiating a study on and public attention because of the to the revising the reactor safety goal. spent nuclear fuel cask responses to increase in the number of shipments Persons other than NRC staff and NRC severe transportation accidents. NRC that will occur if and when such contractors interested in making a previously studied this issue in the facilities begin operating. Risk to the presentation at the workshop should 1980s (see NUREG/CR–4829 and public from transportation accidents notify Joseph Murphy, Office of Nuclear NUREG/BR–0111, called the ‘‘modal depends on accident rates, number of VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56526 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices shipments, and the likely consequences Discussion of Issues Week of November 8—Tentative and severity of the accidents. About Participants and Audience Tuesday, November 9 1300 shipments of spent nuclear fuel Summary and Closing Remarks have been made in NRC-certified 9:00 a.m. Meeting on NRC Interactions Dated at Rockville, Maryland, this 14th day with Stakeholders on Nuclear packages, with an exceptional safety of October, 1999. record of no releases from accidents. Materials and Waste Activities For the Nuclear Regulatory Commission. Despite the previous studies and safety (Public Meeting) Susan F. Shankman, record, some stakeholders may have Wednesday, November 10 questions or concerns regarding spent Deputy Director, Licensing and Inspection nuclear fuel transport package safety. Directorate, Spent Fuel Project Office, Office 9:25 a.m. Affirmation Session (Public of Nuclear Material Safety and Safeguards. Several groups have criticized NRC’s Meeting) (if needed) cask standards and the modal study as [FR Doc. 99–27362 Filed 10–19–99; 8:45 am] 9:30 a.m. Briefing on Draft Maintenance being insufficient to adequately BILLING CODE 7590±01±P Regulatory Guide (Public Meeting) demonstrate safety during severe (Contact: Richard Correia, 301–415– transportation accidents. 1009) NUCLEAR REGULATORY The objective of the public meetings COMMISSION * The schedule for commission meetings is is to bring together representatives of subject to change on short notice. To verify the interests affected by the study to Sunshine Act Meeting the status of meetings call (recording)—(301) discuss their views on the issues in a 415–1292. Contact person for more ‘‘roundtable’’ format. In order to have a AGENCY HOLDING THE MEETING: Nuclear information: Bill Hill (301) 415–1661. manageable discussion, the number of Regulatory Commission. * * * * * The NRC Commission Meeting participants around the table will, of DATE: Weeks of October 18, 25, necessity, be limited. The Commission, November 1, and 8, 1999. Schedule can be found on the Internet through the facilitator for the meeting, at: will attempt to ensure participation by PLACE: Commissioners’ Conference http://www.nrc.gov/SECY/smj/ the broad spectrum of interests at the Room, 11555 Rockville Pike, Rockville, schedule.htm Maryland. meetings, including citizen and * * * * * environmental groups, nuclear industry STATUS: Public and Closed. This notice is distributed by mail to interests, state, tribal, and local MATTERS TO BE CONSIDERED: several hundred subscribers; if you no governments, experts from academia, or longer wish to receive it, or would like other agencies. Other members of the Week of October 18 to be added to it, please contact the public are welcome to attend, and the Wednesday, October 20 Office of the Secretary, Attn: Operations public will have the opportunity to Branch, Washington, DC 20555 (301– 9:25 a.m. Affirmation Session (Public comment on each of the agenda items 415–1661). In addition, distribution of meeting) (if needed) slated for discussion by the roundtable this meeting notice over the Internet participants. Questions about 9:30 a.m. Meeting with Organization of system is available. If you are interested participation may be directed to the Agreement States (OAS) and in receiving this Commission meeting facilitator, Francis X. Cameron. Conference of Radiation Control schedule electronically, please send an The meetings will have a pre-defined Program Directors (CRCPD) (Public electronic message to [email protected] or scope and agenda focused on the major meeting) (Contact: Paul Lohaus, [email protected]. technical issues in regard to spent 301–415–3340) Dated: October 15, 1999. nuclear fuel cask performance during Thursday, October 21 transportation accidents. However, the William M. Hill, Jr., meeting format will be sufficiently 9:30 a.m. Briefing on Part 35—Rule on SECY Tracking Officer, Office of the flexible to allow for the introduction of Medical Use of Byproduct Material Secretary. additional related issues that the (Public Meeting) (Contact: Cathy [FR Doc. 99–27459 Filed 10–18–99; 10:46 participants may wish to raise. The Haney, 301–415–6825) (SECY–99– am] purpose of the meetings is to hear the 201, Draft Final Rule—10 CFR Part BILLING CODE 7590±01±M views of the participants on the issues 35, Medical Use of Byproduct and options to resolve the issues for the Material, is available in the NRC NUCLEAR REGULATORY forthcoming study. The agenda for the Public Document Room or on NRC COMMISSION meetings is set forth below. web site at: ‘‘www.nrc.gov/NRC/ COMMISSION/SECYS/index.html’’ Biweekly Notice; Applications and Agenda Download the zipped version to Amendments to Facility Operating obtain all attachments.) Introductions and Welcome Licenses Involving No Significant E. William Brach, Director, Spent Fuel Week of October 25—Tentative Hazards Considerations Project Office, NRC Susan F. Shankman, Deputy Director, There are no meetings scheduled for the I. Background Spent Fuel Project Office, NRC Week of October 25. Ground Rules, Agenda Overview, Pursuant to Public Law 97–415, the Introduction of Participants Week of November 1—Tentative U.S. Nuclear Regulatory Commission Francis X. Cameron, Facilitator Thursday, November 4 (the Commission or NRC staff) is Overview of NRC Studies on publishing this regular biweekly notice. Transportation Risk 9:25 a.m. Affirmation Session (Public Public Law 97–415 revised section 189 NRC Staff Meeting) (if needed) of the Atomic Energy Act of 1954, as NRC Plans for the Modal Study Update 9:30 a.m. Meeting with Advisory amended (the Act), to require the Robert Lewis, NRC Committee on Reactor Safeguards Commission to publish notice of any General Overview of the Study Updates (ACRS) (Public Meeting) (Contact: amendments issued, or proposed to be Sandia National Laboratories John Larkins, 301–415–7360) issued, under a new provision of section VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56527 189 of the Act. This provision grants the expects that the need to take this action the proceeding; and (3) the possible Commission the authority to issue and will occur very infrequently. effect of any order which may be make immediately effective any Written comments may be submitted entered in the proceeding on the amendment to an operating license by mail to the Chief, Rules and petitioner’s interest. The petition should upon a determination by the Directives Branch, Division of also identify the specific aspect(s) of the Commission that such amendment Administration Services, Office of subject matter of the proceeding as to involves no significant hazards Administration, U.S. Nuclear Regulatory which petitioner wishes to intervene. consideration, notwithstanding the Commission, Washington, DC 20555– Any person who has filed a petition for pendency before the Commission of a 0001, and should cite the publication leave to intervene or who has been request for a hearing from any person. date and page number of this Federal admitted as a party may amend the This biweekly notice includes all Register notice. Written comments may petition without requesting leave of the notices of amendments issued, or also be delivered to Room 6D22, Two Board up to 15 days prior to the first proposed to be issued from September White Flint North, 11545 Rockville prehearing conference scheduled in the 25, 1999, through October 7, 1999. The Pike, Rockville, Maryland from 7:30 proceeding, but such an amended last biweekly notice was published on a.m. to 4:15 p.m. Federal workdays. petition must satisfy the specificity October 6, 1999 (64 FR 54370). Copies of written comments received requirements described above. may be examined at the NRC Public Not later than 15 days prior to the first Notice of Consideration of Issuance of Document Room, the Gelman Building, prehearing conference scheduled in the Amendments to Facility Operating 2120 L Street, NW., Washington, DC. proceeding, a petitioner shall file a Licenses, Proposed No Significant The filing of requests for a hearing and supplement to the petition to intervene Hazards Consideration Determination, petitions for leave to intervene is which must include a list of the and Opportunity for a Hearing discussed below. contentions which are sought to be The Commission has made a By November 19, 1999, the licensee litigated in the matter. Each contention proposed determination that the may file a request for a hearing with must consist of a specific statement of following amendment requests involve respect to issuance of the amendment to the issue of law or fact to be raised or the subject facility operating license and no significant hazards consideration. controverted. In addition, the petitioner any person whose interest may be Under the Commission’s regulations in shall provide a brief explanation of the affected by this proceeding and who 10 CFR 50.92, this means that operation bases of the contention and a concise wishes to participate as a party in the of the facility in accordance with the statement of the alleged facts or expert proceeding must file a written request proposed amendment would not (1) opinion which support the contention for a hearing and a petition for leave to involve a significant increase in the and on which the petitioner intends to intervene. Requests for a hearing and a probability or consequences of an rely in proving the contention at the petition for leave to intervene shall be hearing. The petitioner must also accident previously evaluated; or (2) filed in accordance with the provide references to those specific create the possibility of a new or Commission’s ‘‘Rules of Practice for sources and documents of which the different kind of accident from any Domestic Licensing Proceedings’’ in 10 petitioner is aware and on which the accident previously evaluated; or (3) CFR part 2. Interested persons should petitioner intends to rely to establish involve a significant reduction in a consult a current copy of 10 CFR 2.714 those facts or expert opinion. Petitioner margin of safety. The basis for this which is available at the Commission’s must provide sufficient information to proposed determination for each Public Document Room, the Gelman show that a genuine dispute exists with amendment request is shown below. Building, 2120 L Street, NW., the applicant on a material issue of law The Commission is seeking public Washington, DC and at the local public or fact. Contentions shall be limited to comments on this proposed document room for the particular matters within the scope of the determination. Any comments received facility involved. If a request for a amendment under consideration. The within 30 days after the date of hearing or petition for leave to intervene contention must be one which, if publication of this notice will be is filed by the above date, the proven, would entitle the petitioner to considered in making any final Commission or an Atomic Safety and relief. A petitioner who fails to file such determination. Licensing Board, designated by the a supplement which satisfies these Normally, the Commission will not Commission or by the Chairman of the requirements with respect to at least one issue the amendment until the Atomic Safety and Licensing Board contention will not be permitted to expiration of the 30-day notice period. Panel, will rule on the request and/or participate as a party. However, should circumstances change petition; and the Secretary or the Those permitted to intervene become during the notice period such that designated Atomic Safety and Licensing parties to the proceeding, subject to any failure to act in a timely way would Board will issue a notice of a hearing or limitations in the order granting leave to result, for example, in derating or an appropriate order. intervene, and have the opportunity to shutdown of the facility, the As required by 10 CFR 2.714, a participate fully in the conduct of the Commission may issue the license petition for leave to intervene shall set hearing, including the opportunity to amendment before the expiration of the forth with particularity the interest of present evidence and cross-examine 30-day notice period, provided that its the petitioner in the proceeding, and witnesses. final determination is that the how that interest may be affected by the If a hearing is requested, the amendment involves no significant results of the proceeding. The petition Commission will make a final hazards consideration. The final should specifically explain the reasons determination on the issue of no determination will consider all public why intervention should be permitted significant hazards consideration. The and State comments received before with particular reference to the final determination will serve to decide action is taken. Should the Commission following factors: (1) The nature of the when the hearing is held. take this action, it will publish in the petitioner’s right under the Act to be If the final determination is that the Federal Register a notice of issuance made a party to the proceeding; (2) the amendment request involves no and provide for opportunity for a nature and extent of the petitioner’s significant hazards consideration, the hearing after issuance. The Commission property, financial, or other interest in Commission may issue the amendment VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56528 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices and make it immediately effective, Annual Radiological Environmental plant and no changes in the functional notwithstanding the request for a Operating Report, that states: ‘‘[t]he requirements of any system. This hearing. Any hearing held would take report shall identify the TLD administrative change would simply clarify place after issuance of the amendment. [thermoluminescence dosimeter] results TS 5.5.2, since the PASS return piping is not If the final determination is that the that represent collocated dosimeters in part of the waste gas or liquid radwaste systems. amendment request involves a relation to the NRC TLD program and significant hazards consideration, any the exposure period associated with Standard 3—Does the proposed change hearing held would take place before each result.’’ involve a significant reduction in a margin of the issuance of any amendment. Basis for proposed no significant safety? A request for a hearing or a petition hazards consideration determination: As No—This proposed administrative change for leave to intervene must be filed with required by 10 CFR 50.91(a), the does not involve a significant reduction in a the Secretary of the Commission, U.S. licensee has provided its analysis of the margin of safety. There is no margin of safety Nuclear Regulatory Commission, issue of no significant hazards associated with this proposed administrative Washington, DC 20555–0001, Attention: change to Technical Specification 5.5.2. Leak consideration, which is presented testing requirements of the PASS return Rulemakings and Adjudications Staff, or below: may be delivered to the Commission’s piping are implicitly included in the TS 5.5.2 Request No. 1 requirements that are not being changed. The Public Document Room, the Gelman appropriate PASS piping, including return Building, 2120 L Street, NW., Standard 1—Does the proposed change involve a significant increase in the piping, is leak tested per the prescribed Washington DC, by the above date. A requirements in TS 5.5.2. This administrative copy of the petition should also be sent probability or consequences of an accident previously evaluated? change would involve no change to the to the Office of the General Counsel, design or maintenance of the plant and no U.S. Nuclear Regulatory Commission, No—This proposed administrative change changes in the functional requirements of to Technical Specification (TS) 5.5.2 to delete any system. This administrative change Washington, DC 20555-0001, and to the references to the radioactive waste gas system would simply clarify TS 5.5.2, since the attorney for the licensee. and liquid radwaste system in the context of PASS return piping is not part of the waste Nontimely filings of petitions for the post accident sampling system (PASS) leave to intervene, amended petitions, does not involve a significant increase in the gas or liquid radwaste systems. supplemental petitions and/or requests probability or consequences of an accident Request No. 2 previously evaluated. Leak testing for a hearing will not be entertained Standard 1—Does the proposed change absent a determination by the requirements of the PASS return piping are included in the TS 5.5.2 requirements that involve a significant increase in the Commission, the presiding officer or the probability or consequences of an accident Atomic Safety and Licensing Board that are not being changed. The appropriate PASS piping, including return piping, is leak tested previously evaluated? the petition and/or request should be per the prescribed requirements in TS 5.5.2. No—This proposed administrative change granted based upon a balancing of This administrative change would simply to Technical Specification (TS) 5.6.2 does not factors specified in 10 CFR clarify TS 5.5.2, since the PASS return piping involve a significant increase in the 2.714(a)(1)(i)–(v) and 2.714(d). is not part of the waste gas or liquid radwaste probability or consequences of an accident For further details with respect to this systems. There is no physical connection previously evaluated. This proposed TS action, see the application for between the PASS piping and the radioactive amendment would delete the administrative amendment which is available for waste gas or liquid radwaste systems. The requirement in TS 5.6.2, Annual Radiological public inspection at the Commission’s radioactive waste gas system and the liquid Environmental Operating Report, that states: Public Document Room, the Gelman radwaste system are not part of PASS and ‘‘[t]he report shall identify the TLD results would not contain highly radioactive fluids that represent collocated dosimeters in Building, 2120 L Street, NW., during a serious transient or accident to be Washington, DC, and at the local public relation to the NRC TLD program and the subject to TS 5.5.2. This administrative exposure period associated with each result.’’ document room for the particular change would involve no change to the The NRC ended their TLD program at the end facility involved. design or maintenance of the plant and no of 1997. The requirements of TS 5.6.2 and the changes in the functional requirements of changes being made with this request are Arizona Public Service Company, et al., any system. Docket Nos. STN 50–528, STN 50–529, purely administrative reporting requirements Standard 2—Does the proposed change create that have no effect on the design, operation, and STN 50–530, Palo Verde Nuclear the possibility of a new or different kind of Generating Station, Units 1, 2, and 3, or maintenance of the plant. Since there is no accident from any accident previously effect on the design, operation, or Maricopa County, Arizona evaluated? maintenance of the plant, this change does Date of amendments request: No—This proposed administrative change not involve a significant increase in the September 14, 1999 to delete references to the radioactive waste probability or consequences of an accident Description of amendments request: gas system and liquid radwaste system in the previously evaluated. Request No. 1: The proposed context of PASS does not create the Standard 2—Does the proposed change create administrative change to Technical possibility of a new or different kind of the possibility of a new or different kind of Specification (TS) 5.5.2, Primary accident from any accident previously accident from any accident previously evaluated. Leak testing requirements of the evaluated? Coolant Sources Outside Containment, PASS return piping are implicitly included would delete the references to the post- in the TS 5.5.2 requirements that are not No—This proposed administrative change accident sampling return piping of the being changed. The appropriate PASS piping, to TS 5.6.2 does not create the possibility of radioactive waste gas system and the including return piping, is leak tested per the a new or different kind of accident from any post-accident sampling return piping of prescribed requirements in TS 5.5.2. There is accident previously evaluated. This change the liquid radwaste system because the no physical connection between the PASS only affects administrative reporting Palo Verde post-accident sampling piping and the radioactive waste gas or liquid requirement and has no effect on the design, operation, or maintenance of the plant. Since system does not have return lines to the radwaste systems. The radioactive waste gas system and the liquid radwaste system are this proposed change is purely radioactive waste gas or liquid radwaste not part of PASS and would not contain administrative and would have no effect on systems. highly radioactive fluids during a serious the design, operation, or maintenance of the Request No. 2: This proposed TS transient or accident to be subject to TS 5.5.2. plant, this change will not create possibility amendment would also delete the This administrative change would involve no of a new or different type of accident than administrative requirement in TS 5.6.2, change to the design or maintenance of the any previously evaluated. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56529 Standard 3—Does the proposed change amendment would not: (1) Involve a Duke Energy Corporation, et al., Docket involve a significant reduction in a margin of significant increase in the probability or Nos. 50–413 and 50–414, Catawba safety? consequences of an accident previously Nuclear Station, Units 1 and 2, York No—This proposed administrative change evaluated; or (2) create the possibility of County, South Carolina to TS 5.6.2 does not involve a significant a new or different kind of accident from reduction in a margin of safety. This TS Date of amendment request: establishes requirements for reporting any accident previously evaluated; or September 16, 1999. radiological monitoring information to the (3) involve a significant reduction in the Description of amendment request: NRC. Since TS 5.6.2 contains an margin of safety. The amendments would revise administrative reporting requirement, and The staff agrees with the licensee’s no Surveillance Requirements (SRs) 3.8.4.8 this proposed change would simply delete an significant hazards consideration and 3.8.4.9 of the Technical administrative requirement associated with a determination submitted on September Specifications and Bases SR 3.8.4.8 to discontinued NRC monitoring program, there allow testing of the direct current (DC) is no margin of safety associated [with] this 7, 1999, for the following reason: TS or with the proposed changes to the channel batteries with the units on line. In order to complete the The proposed change to SR 3.8.4.8 requirements of TS 5.6.2. Also, since this decommissioning of the WTR facility as involves only administrative reporting, this would also prohibit the diesel generator change has no [e]ffect on any other margin described in the Decommissioning Plan, (DG) batteries from being service tested of safety. CBS has established contractual while the units are on line. agreements with the Westinghouse The NRC staff has reviewed the Basis for proposed no significant Electric Company to supply continued licensee’s analysis and, based on that hazards consideration determination: review, it appears that the three site support and services to the As required by 10 CFR 50.91(a), the standards of 50.92(c) are satisfied. Westinghouse Test Reactor Facility. CBS licensee has provided its analysis of the Therefore, the NRC staff proposes to has also entered into contracts with issue of no significant hazards determine that the request for other third party organizations as consideration, which is presented amendments involves no significant described in the Decommissioning Plan. below: hazards consideration. These contracts will remain in place First Standard between CBS and each respective third Local Public Document Room Implementation of this amendment would location: Phoenix Public Library, 1221 party so that there will be no effective not involve a significant increase in the N. Central Avenue, Phoenix, Arizona change in the personnel associated with probability or consequences of an accident 85004 the on-going decommissioning project previously evaluated. Approval of this Attorney for licensee: Nancy C. Loftin, under the TR–2 License. CBS continues amendment will have no significant effect on Esq., Corporate Secretary and Counsel, to retain full responsibility for the accident probabilities or consequences. The Arizona Public Service Company, P.O. project. 125 Volt DC Vital Instrumentation and Box 53999, Mail Station 9068, Phoenix, Control Power System is not an accident The only change being made is that Arizona 85072–3999 initiating system; therefore, there will be no NRC Section Chief: Stephen Dembek the responsibilities of the Westinghouse impact on any accident probabilities by the Electric Company Site Manager, as it approval of this amendment. The design of CBS Corporation (Licensee), pertains to the WTR and the TR–2 the system is not being modified by this Westinghouse Test Reactor, Waltz Mill License, has been assigned to the TR–2 proposed amendment. It has been shown that the required battery testing can be performed Site, Westmoreland, Pennsylvania, Decommissioning Project Director, who Docket No. 50–22, License No. TR–2 safely with the unit on line well within the works for CBS. The Westinghouse allowed outage time for an inoperable DC Date of amendment request: Electric Company personnel who channel. Both safety trains would continue to September 7, 1999, as supplemented on reported to the Site Manager will now be capable of performing their required October 1, 1999 report directly to CBS through the design functions in the event of an accident. Description of amendment request: contract. Therefore, there will be no impact on any CBS Corporation is the licensee for the accident consequences. Therefore, the proposed amendment Westinghouse Test Reactor (WTR) at does not involve a significant increase Second Standard Waltz Mill, Pennsylvania. The licensee Implementation of this amendment would is authorized to only possess the reactor in the probability or consequences of an accident previously evaluated. not create the possibility of a new or different and a decommissioning plan has been kind of accident from any accident approved. The licensee is planning to The proposed amendment does not previously evaluated. No new accident revise the decommissioning plan by modify the WTR facility configuration causal mechanisms are created as a result of reassigning the responsibilities of the or licensed activities. Thus no new NRC approval of this amendment request. No Site Manager, who works for the accident initiators are introduced. changes are being made to the plant which Westinghouse Electric Company (a will introduce any new accident causal Therefore, the proposed amendment mechanisms. This amendment request does contractor to CBS) to the TR–2 does not create the possibility of a new not impact any plant systems that are Decommissioning Project Director who or different kind of accident from any accident initiators. works for CBS. accident previously evaluated, and does Third Standard Basis for proposed no significant not involve a significant reduction in hazards consideration determination: the margin of safety. Implementation of this amendment would As required by 10 CFR 50.91(a), the not involve a significant reduction in a licensee has provided its analysis of the The NRC staff has reviewed the margin of safety. Margin of safety is related issue of no significant hazards licensee’s analysis and, based on this to the confidence in the ability of the fission consideration, which is presented review, it appears that the three product barriers to perform their design standards of 10 CFR 50.92(c) are functions during and following an accident below: situation. These barriers include the fuel The proposed amendment to a license satisfied. Therefore, the NRC staff cladding, the reactor coolant system, and the of a facility involves no significant proposes to determine that the containment system. The performance of hazards consideration if operation of the amendment request involves no these fission product barriers will not be facility in accordance with the proposed significant hazards consideration. impacted by implementation of this proposed VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56530 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices amendment. It has already been shown that letter], Category 1 neutron flux monitoring monitoring instrumentation does not prevent both safety trains of the 125 Volt DC Vital instrumentation is not needed for existing plant operators from determining the Instrumentation and Control Power System BWRs to cope with Loss-of-Coolant Accident shutdown condition of the reactor. Sufficient will continue to be able to perform their (LOCA), Anticipated Transient Without information is available to the operator to accident mitigation functions should they be SCRAM (ATWS), or other accidents that do make operational decisions and to conclude required. In addition, the probabilistic risk not result in severe core damage conditions. that reactivity control has been analysis conducted for this proposed Instrumentation to monitor the progression of accomplished. The proposed changes will amendment demonstrated that there is no core melt accidents would best be addressed not impact the basis for any Technical appreciable increase in overall plant risk by the current severe accident management Specification related to the establishment or incurred by its implementation. No safety program. Also, WRM is not included in the maintenance of nuclear safety margins. margins will be impacted. WNP–2 IPE/PSA models and WRM is not Therefore, operation of the facility in relied upon for operator actions in the accordance with the proposed amendment The NRC staff has reviewed the Emergency Operating Procedures (EOPs) or does not involve a reduction in a margin of licensee’s analysis and, based on this actions accounted for in Severe Accident safety. review, it appears that the three Management. Therefore, no individual standards of 10 CFR 50.92(c) are precursors of an accident are affected and the The NRC staff has reviewed the satisfied. Therefore, the NRC staff elimination of the WRM does not impact or licensee’s analysis and, based on this proposes to determine that the change the probabilities of accidents review, it appears that the three amendment request involves no previously evaluated. In addition, since the standards of 50.92(c) are satisfied. significant hazards consideration. operability of plant systems designed to Therefore, the NRC staff proposes to mitigate accident consequence has not determine that the amendment request Local Public Document Room changed, the consequences of an accident location: York County Library, 138 East involves no significant hazards previously evaluated are not expected to consideration. Black Street, Rock Hill, South Carolina. increase. Attorney for licensee: Ms. Lisa F. 2. The proposed change does not create the Local Public Document Room Vaughn , Legal Department (PB05E), possibility of a new or different kind of location: Richland Public Library, 955 Duke Energy Corporation, 422 South accident from any accident previously Northgate Street, Richland, Washington Church Street, Charlotte, North evaluated. 99352. Carolina. Creation of the possibility of a new or Attorney for licensee: Perry D. NRC Section Chief: Richard L. Emch, different kind of accident would require the Robinson, Esq., Winston & Strawn, 1400 creation of one or more new precursors of Jr. L Street, N.W., Washington, D.C. 20005– that accident. New accident precursors may 3502. Energy Northwest, Docket No. 50–397, be created by modifications of the plant NRC Section Chief: Stephen Dembek. WNP–2, Benton County, Washington configuration, including changes in procedures that may create the potential for Florida Power Corporation, et al., Date of amendment request: July 29, new or different personnel errors. The Docket No. 50–302, Crystal River Unit 1999, as supplemented by letter dated elimination of the WRM system does not No. 3 Nuclear Generating Plant, Citrus August 30, 1999. create the possibility of a new or different County, Florida Description of amendment request: kind of accident because plant crews are The proposed amendment would delete trained to use the Neutron Monitoring Date of application for amendment: a license condition that required System (NMS) in normal evolutions and February 19, 1999. under emergency conditions according to installation of a neutron flux monitoring Description of amendment request: EOP guidance. In addition, NEDO–31558–A The proposed amendment would revise system, in the form of excore wide range concludes that the failure of all neutron flux monitors (WRM), in conformance with the Crystal River Unit 3 Improved monitoring instrumentation does not prevent Technical Specifications Sections Regulatory Guide 1.97, the operator from determining the shutdown ‘‘Instrumentation for Light-Water- condition of the reactor. Sufficient 5.6.2.7, 5.6.2.8, and 5.7.2.b, related to Cooled Nuclear Power Plants to Assess information is available on which to base the Containment Tendon Surveillance Plant and Environs Conditions During operational decisions and to conclude that Program. The proposed changes are a and Following an Accident.’’ WNP–2 reactivity control has been accomplished. For result of revisions to 10 CFR 50.55a installed the WRM system in the spring example, Rod Position Information System which are required to be fully (RPIS) is powered from an uninterruptible of 1989. Removal of the license implemented by September 9, 2001. source and remains available even during These revised requirements affect the condition would allow WNP–2 to Station Blackout (SBO) conditions to provide deactivate the WRM system. Basis for surveillance methods for the full core control rod position information as containment tendons and the conduct of proposed no significant hazards a backup reactor power indicator based on consideration determination: As calculations of rod worth and shutdown containment visual inspections, and the required by 10 CFR 50.91(a), the margin. The proposed change does not methods of reporting the results of the licensee has provided its analysis of the introduce any new modes of operation or required inspections to the NRC. issue of no significant hazards alter system setpoints which could create a Basis for proposed no significant consideration, which is presented new or different kind of accident. Therefore, hazards consideration determination: no new precursors of an accident and no new below: As required by 10 CFR 50.91(a), the or different kinds of accidents are created. licensee has provided its analysis of the 1. The proposed change does not involve 3. The proposed change does not involve issue of no significant hazards a significant increase in the probability or a significant reduction in a margin of safety. consideration, which is presented consequences of an accident previously The elimination of the WRM system does evaluated. not result in a reduction of the margin of below. The probability of an evaluated accident is safety. The neutron power indications 1. Involve a significant increase in the derived from the probabilities of the necessary for operator response to ATWS are probability or consequences of an accident individual precursors to that accident. The provided by the NMS not WRM. Based on a previously evaluated? consequences of an evaluated accident are WNP–2 specific evaluation against the No. The proposed change to the Crystal determined by the operability of plant alternate criteria specified in NEDO–31558– River Unit 3 (CR–3) Improved Technical systems designed to mitigate those A, there is sufficient confidence that the Specifications (ITS) replaces the previous consequences. As stated in the NRC safety instrumentation would still be available to programmatic commitment to implement a evaluation approving NEDO–31558–A confirm that the reactor is shutdown. In Containment Tendon Surveillance Program (Reference 2) [in licensee’s August 30,1999 addition, failure of the existing neutron flux based on Regulatory Guide 1.35, Revision 3, VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56531 with a Containment Inspection Program that The NRC staff has reviewed the 2. The proposed TS change does not create complies with the current requirements of 10 licensee’s analysis and, based on this the possibility of a new or different kind of CFR 50.55a. Effective September 9, 1996, 10 review, it appears that the three accident from any accident previously CFR 50.55a requires licensees to implement standards of 50.92(c) are satisfied. evaluated. a Containment Inspection Program in Therefore, the NRC staff proposes to The proposed surveillance interval change compliance with the 1992 Edition with the does not alter the actual surveillance 1992 Addenda of Subsection IWE, determine that the amendment request requirements, nor does it alter the limits and ‘‘Requirements for Class MC and Metallic involves no significant hazards restrictions on plant operations. Assurance of Liners of Class CC Components of Light- consideration. system and equipment availability is Water Cooled Power Plants,’’ and with Local Public Document Room maintained. The proposed change does not Subsection IWL, ‘‘Requirements for Class CC location: Coastal Region Library, 8619 alter any system or equipment configuration Concrete Components of Light-Water Cooled W. Crystal Street, Crystal River, Florida nor does it introduce any new mechanisms Power Plants,’’ of Section XI, Division 1, of 34428. which could contribute to the creation of a the American Society of Mechanical Attorney for licensee: R. Alexander new or different kind of accident than Engineers Boiler and Pressure Vessel Code Glenn, General Counsel (MAC–BT15A), previously evaluated. (ASME Code) with additional modifications 3. The proposed TS changes do not involve and limitations as stated in 10 CFR Florida Power Corporation, P. O. Box 14042, St. Petersburg, Florida 33733– a significant reduction in a margin of safety. 50.55a(b)(2)(ix). Florida Power Corporation The proposed change extends the (FPC) is implementing a Containment 4042. surveillance interval for verifying the Inspection Program to comply with these NRC Section Chief: Sheri R. Peterson. operability of the specified pumps and valves new regulatory requirements. The final rule from once per month to once per three specifies requirements to assure that the GPU Nuclear, Inc. et al., Docket No. 50– months. The proposed change does not alter critical areas of the containment structure are 219, Oyster Creek Nuclear Generating the actual surveillance requirements, the routinely inspected to detect and take Station, Ocean County, New Jersey limits and restriction on plant operations nor corrective action for defects that could Date of amendment request: July 7, compromise structural integrity. This the design, function or manner of operation proposed ITS change is requested to update 1999. of any structures, systems or components. the ITS to these latest 10 CFR 50.55a Description of amendment request: System availability and reliability are regulatory requirements. The proposed amendment would revise maintained. Accordingly, the proposed TS By complying with the regulatory the Technical Specifications (TSs) to change does not involve a significant requirements described in 10 CFR 50.55a, the change the component surveillance reduction in a margin of safety. probability of a loss of containment structural frequencies for the following TSs to The NRC staff has reviewed the integrity is maintained as low as reasonably indicate a frequency of once per 3 licensee’s analysis and, based on this achievable. Maintaining containment months: Core Spray System TS 4.4.A.1 review, it appears that the three structural integrity is independent of the and 4.4.A.2, Containment Cooling operation of the reactor coolant system (RCS), standards of 10 CFR 50.92(c) are and independent of the reactor protection System TS 4.4.C.1, Emergency Service satisfied. Therefore, the NRC staff system (RPS) and emergency core cooling Water System TS 4.4.D.1, Fire proposes to determine that the system (ECCS). The Containment Inspection Protection System TS 4.4.F (isolation amendment request involves no Program ensures that the containment will valves only), and Pressure Suppression significant hazards consideration. function as designed to provide an acceptable Chamber—Drywell Vacuum Breakers TS Local Public Document Room barrier to release of radioactive materials to 4.5.F.5.a. The TSs currently stipulate a location: Ocean County Library, the environment. By assuring the component surveillance frequency of Reference Department, 101 Washington effectiveness of this barrier through once per month. Also, the amendment appropriate inspection, and by implementing Street, Toms River, NJ 08753. corrective actions for any degradation would revise TS pages 4.4–1 and 4.4–2 Attorney for licensee: Ernest L. Blake, discovered during these inspections that to incorporate editorial format changes Jr., Esquire, Shaw, Pittman, Potts & might lead to containment structural failures, and TS page 4.4–3 to accommodate the Trowbridge, 2300 N Street, NW., the probability or consequences of accidents expanded text. Washington, DC 20037. will not be greater than that previously Basis for proposed no significant NRC Section Chief: S. Singh Bajwa. evaluated. hazards consideration determination: 2. Create the possibility of a new or As required by 10 CFR 50.91(a), the Indiana Michigan Power Company, different kind of accident from previously licensee has provided its analysis of the Docket Nos. 50–315 and 50–316, Donald evaluated accidents? issue of no significant hazards C. Cook Nuclear Plant, Units 1 and 2, No. Maintaining containment structural Berrien County, Michigan integrity is independent of the operation of consideration, which is presented the RCS, and independent of the RPS and below: Date of amendment requests: ECCS. By implementing corrective actions for 1. The proposed TS change does not September 17, 1999. any degradation discovered during the involve a significant increase in the Description of amendment requests: required inspections of the containment, the probability or consequences of an accident The proposed amendments would allow possibility of a new or different kind of previously evaluated. credit in the applicable subcriticality accident will not be created. The proposed surveillance interval change analysis for the negative reactivity 3. Involve a significant reduction in a does not alter the actual surveillance provided by insertion of the rod cluster margin of safety? requirements, nor does it alter the limits and control assemblies (RCCAs) during No. The margin of safety as defined by the restrictions on plant operations. The CR–3 ITS has not been reduced. By reliability of systems and components relied realignment from a cold leg complying with the regulatory requirements upon to prevent or mitigate the consequences recirculation to a hot leg recirculation described in 10 CFR 50.55a, the probability of accidents previously evaluated is not configuration. This realignment, which of a loss of containment structural integrity degraded by the proposed change to the is referred to as hot leg switchover, is is maintained as low as reasonably surveillance interval. Assurance of system performed following a loss-of-coolant achievable. The Containment Inspection and equipment availability is maintained. accident. This methodology change, Program ensures that the containment will The proposed change does not alter any when evaluated in accordance with 10 function as designed to provide an acceptable system or equipment configuration. barrier to release of radioactive materials to Based on the above, the proposed change CFR 59.59, resulted in an unreviewed the environment. By implementing the does not significantly increase the probability safety question that will require prior Containment Inspection Program, the or consequences of an accident previously approval by the NRC staff in accordance existing margin of safety is preserved. evaluated. with the provisions of 10 CFR 50.90 VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56532 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices prior to implementation. The proposed HLSO subcriticality analysis, or mechanisms 3. Does the change involve a significant change would also affect the Bases for that could initiate a LOCA. Taking credit for reduction in a margin of safety? Technical Specification (T/S) 3/4.5.5, the negative reactivity available from No. Presently, no credit is taken for RCCA ‘‘Refueling Water Storage Tank,’’ and insertion of the RCCAs, which is currently insertion in the analysis to demonstrate post- assumed for various accident analyses within cold leg LOCA subcriticality at the time of several sections of the Updated Final the CNP licensing basis (e.g., small break HLSO. The current subcriticality analysis for Safety Analysis Report (UFSAR). LOCA, main steamline break, feedline break, this scenario relies only on the boron Basis for proposed no significant steam generator tube rupture), does not affect provided by the RWST [refueling water hazards consideration determination: equipment malfunction probability directly storage tank] and the accumulators. Thus, As required by 10 CFR 50.91(a), the or indirectly. Therefore, crediting the RCCAs RCCA insertion provides another source of licensee has provided its analysis of the as a source of negative reactivity for post- negative reactivity (margin of safety). issue of no significant hazards LOCA criticality control at the time of HLSO Revising the post-cold leg LBLOCA HLSO does not significantly increase the probability subcriticality analysis to credit the negative consideration, which is presented of an accident previously evaluated. below: reactivity associated with the RCCAs is a Furthermore, the traditional conservative means to offset the sump dilution associated 1. Does the change involve a significant assumption that the most reactive RCCA is with the effects of the inactive regions of the increase in the probability of occurrence or stuck fully out of the core is being CNP containment sump. The incorporation of consequences of an accident previously maintained. A malfunction that results in one this ‘‘defense-in-depth’’ source of negative evaluated? RCCA to fail to insert is a credible scenario, reactivity in the HLSO subcriticality analysis No. I&M [Indiana Michigan Power and is being considered for the post-LOCA has been conservatively determined to cause subcriticality analysis following a cold leg Company] proposes to credit RCCA insertion a reduction in the margin of safety. 10 CFR LBLOCA. There will be sufficient negative of negative reactivity for criticality control 50, Appendix K, I.A.2., states, in part, that reactivity, even with the most reactive RCCA during the core cooling flow path ‘‘[r]od trip and insertion may be assumed if stuck fully out of the core, to assure core realignment from cold leg recirculation to hot they are calculated to occur,’’ and provides subcriticality post-LOCA, as supported by the leg recirculation following the postulated for crediting RCCA insertion as an acceptable cold leg LBLOCA [large-break loss-of-coolant subcriticality analysis that is confirmed each and every fuel cycle as part of the reload feature of emergency core cooling system accident]. No physical modifications will be (ECCS) evaluation models. The proposed made to plant systems, structures, or documentation (i.e., the Reload Safety Evaluations). The core is shown to remain change is based upon an analysis for CNP components. that demonstrates that the control rods will Credit for RCCAs is only being applied to subcritical during the post-LOCA long-term cooling period, specifically while HLSO is indeed insert and the resulting negative demonstrate core subcriticality upon hot leg performed. Thus, no additional radiological reactivity can be credited for post-LOCA switchover (HLSO) following a cold leg source terms are generated, and the criticality control. LBLOCA. The performance criteria codified consequences of an accident previously The proposed change would ensure that in 10 CFR 50.46 continue to be met. The evaluated in the UFSAR will not be post-LOCA subcriticality is maintained ability of the RCCAs to insert under LOCA significantly increased. during HLSO. Subsequently, there would not and seismic conditions was a function 2. Does the change create the possibility of be a challenge to long-term core cooling due important to safety as part of the original a new or different kind of accident from any to a return to a critical condition. This being CNP [Cook Nuclear Plant] design basis. This accident previously evaluated? the case, the requirements of 10 CFR is supported by the conclusion presented in No. The proposed change involves 50.46(b)(5) that, ‘‘* * * the calculated core NRC (at the time, the Atomic Energy crediting the negative reactivity that is temperature shall be maintained at an Commission) Safety Evaluation Report (SER), available from the RCCAs for an analysis acceptably low value and decay heat shall be Section 3.3, ‘‘Mechanical Design of Reactor applicable several hours after the initiation of removed for the extended period of Internals,’’ dated January 14, 1969. The SER a cold leg LBLOCA. As such, this change time* * *’’ continues to be satisfied and the includes the statements that, ‘‘[t]he control involves post-LOCA recovery actions several margin of safety in the CNP licensing basis rod guide tubes are designed so that each hours after the break has occurred and does is preserved. Therefore, the proposed change finger of each control rod assembly is always not involve accident initiation. As discussed does not involve a significant reduction in a partially inserted in the guide tube. above, the original design requirements for margin of safety. Deflection limits on the guide tubes have the CNP reactor internals, core fuel been chosen so that deflections caused by The NRC staff has reviewed the assemblies, and RCCAs were based upon licensee’s analysis and, based on this blow-down forces during a loss-of-coolant assuring the ability of the RCCAs to insert accident will not prevent control rod following a double-ended rupture LOCA with review, it appears that the three insertion,’’ and that the ‘‘* * * mechanical seismic loadings. Thus, the safety functions standards of 10 CFR 50.92(c) are design of internals, fuel assemblies, and of safety related systems and components satisfied. Therefore, the NRC staff control elements is acceptable.’’ However, have not been altered by this change. proposes to determine that the the licensing basis safety analyses for the Crediting the negative reactivity that is amendment requests involve no LBLOCA scenario have conservatively not available from the RCCAs for the post-LOCA significant hazards consideration. taken credit for insertion of the RCCAs. subcriticality analysis upon HLSO does not Local Public Document Room No physical modifications will be made to cause the initiation of any accident, nor does location: Maud Preston Palenske plant systems, structures, or components in the proposed activity create any new credible order to implement the proposed limiting single failure. Crediting the insertion Memorial Library, 500 Market Street, St. methodology change. The safety functions of of RCCAs does not result in any event Joseph, MI 49085. the safety related systems and components, previously deemed incredible being made Attorney for licensee: Jeremy J. Euto, which are related to accident mitigation, credible nor is there any introduction of any Esq., 500 Circle Drive, Buchanan, MI have not been altered. Therefore, the new failure mechanisms that are not 49107. reliability of RCCA insertion is not affected. currently considered in the design basis NRC Section Chief: Claudia M. Craig. As such, taking credit for RCCA insertion LOCA. There are no changes introduced by does not alter the probability of an LBLOCA this amendment concerning how safety Power Authority of the State of New (the design basis accident at issue). The related equipment is designed to operate York, Docket No. 50–333, James A. Westinghouse analyses provided as under normal or design basis accident FitzPatrick Nuclear Power Plant, Attachments 6 and 7 [to the licensee’s conditions since the calculations supporting Oswego County, New York application] demonstrate that RCCA insertion RCCA insertion following a cold leg LBLOCA will occur, with substantial margin, have assumed design basis break sizes in Date of amendment request: following a design basis cold leg LBLOCA conjunction with seismic loadings. September 29, 1999. combined with a seismic event. Crediting Therefore, the possibility of an accident of a Description of amendment request: RCCA insertion does not affect mechanisms different type than already evaluated in the The proposed amendment requests a for a malfunction that could impact the UFSAR is not created. Technical Specification change that VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56533 would extend the allowed out-of-service The NRC staff has reviewed the on any safety-related system and do not time for the residual heat removal licensee’s analysis and, based on this challenge the performance or integrity of any service water system (RHRSW) from 7 review, it appears that the three safety-related system. Therefore, these days to 11 days on a one-time basis standards of 50.92(c) are satisfied. changes do not create the possibility of a new or different kind of accident from any while modifications are made on the Therefore, the NRC staff proposes to accident previously evaluated. RHRSW ‘‘A’’ strainer. determine that the amendment request 3. The proposed technical specification Basis for proposed no significant involves no significant hazards changes do not involve a significant hazards consideration determination: consideration. reduction in a margin of safety. All As required by 10 CFR 50.91(a), the Local Public Document Room applicable analyses supporting the [steam licensee has provided its analysis of the location: Reference and Documents generator] SG replacement reflect these issue of no significant hazards Department, Penfield Library, State proposed values. All acceptance criteria consideration, which is presented University of New York, Oswego, New (including LOCA peak clad temperature, below: York 13126. [departure from nucleate boiling] DNB, containment temperature and pressure, and Operation of the FitzPatrick plant in Attorney for licensee: Mr. David E. Blabey, 1633 Broadway, New York, New dose limits) continue to be met. Therefore, accordance with the proposed amendment the proposed changes do not involve a would not involve a significant hazards York 10019. significant reduction in the margin of safety. consideration as defined in 10 CFR 50.92 NRC Section Chief: S. Singh Bajwa. The NRC staff has reviewed Southern since it would not: Southern Nuclear Operating Company, Involve an increase in the probability or Nuclear Company’s analysis, and based consequences of an accident previously Inc, Docket Nos. 50–348 and 50–364, on this review, it appears that the three evaluated. Joseph M. Farley Nuclear Plant, Units 1 standards of 10 CFR 50.92(c) are The Conditional Core Damage Probability and 2, Houston County, Alabama satisfied. Therefore, the NRC staff due to this proposed change is calculated to Date of amendment request: proposes to determine that the be 6.4 E–8. This value falls below the December 1, 1998, as supplemented by amendment request involves no threshold probability of 1 E–6 for risk letters of April 21, 1999, and July 19, significant hazards consideration. significance of temporary changes to the Local Public Document Room plant configuration in the EPRI PSA [Electric 1999. Power Research Institute Probability Description of amendment request: location: Houston-Love Memorial Assessment] Applications Guide (Reference The proposed amendments would Library, 212 W. Burdeshaw Street, Post 3) [see application dated September 29, revise the Technical Specifications to Office Box 1369, Dothan, Alabama 1999]. reflect replacing the current Model 51 36302. This proposed change does not increase steam generators with Westinghouse Attorney for licensee: M. Stanford the consequences of an accident previously Model 54F steam generators. The Blanton, Esq., Balch and Bingham, Post evaluated because all relevant accidents replacement program includes re- Office Box 306, 1710 Sixth Avenue (LOCA) [loss-of-coolant accident] would analyzing and evaluating loss-of- North, Birmingham, Alabama. result in the transfer of decay heat to the coolant-accident (LOCA) and non-LOCA NRC Section Chief: Richard L. Emch, suppression pool. For this scenario, the same Jr. complement of equipment will be available mass and energy releases, containment to achieve and maintain cold shutdown as is and sub-compartment pressure and Tennessee Valley Authority, Docket required by the current Technical temperature responses, dose analyses, Nos. 50–327 and 50–328, Sequoyah Specification LCO [limiting condition for and the effects on nuclear steam supply Nuclear Plant, (SQN), Units 1 and 2, operation]. and balance of plant systems. Hamilton County, Tennessee Create the possibility of a new or different Basis for proposed no significant kind of accident from any accident hazards consideration determination: Date of application for amendments: previously evaluated. As required by 10 CFR 50.91(a), the June 30, 1999 (TS 98–10). The proposed change does not physically licensee has provided its analysis of the Description of amendment requests: alter the plant. As such, no new or different issue of no significant hazards The proposed amendments would types of equipment will be installed. The change the Sequoyah (SQN) Operating new design for the RHRSW strainer packing consideration, which is presented below: Licenses DPR–77 (Unit 1) and DPR– gland will be evaluated under a separate 10 79(Unit 2) by updating the current CFR 50.59 evaluation and is considered to be 1. The proposed changes do not Technical Specification requirements functionally equivalent for the purposes of significantly increase the probability or this one-time-only proposed Technical consequences of an accident previously for reactor coolant system leakage Specification change. evaluated in the [Final Safety Analysis detection and operational leakage The implementation and use of the Report] FSAR. The comprehensive specifications. contingency plan for achieving limited engineering effort performed to support Basis for proposed no significant containment heat removal in the event the B [steam generator] SG replacement has hazards consideration determination: division of RHRSW is rendered inoperable included evaluations or re-analysis of all As required by 10 CFR 50.91(a), has will be evaluated under the Authority’s 10 accident analyses including all dose related provided its analysis of the issue of no CFR 50.59 program. events. All dose consequences have been significant hazards consideration, which Involve a significant reduction in a margin analyzed or evaluated with respect to these is presented below: of safety. proposed changes, and all acceptance criteria The Conditional Core Damage Probability continue to be met. Therefore, these changes A. The proposed amendment does not due to this proposed change is calculated to do not involve a significant increase in the involve a significant increase in the be 6.4 E–8. This value falls below the probability or consequences of an accident probability or consequences of an accident threshold probability of 1 E–6 for risk previously evaluated. previously evaluated. significance of temporary changes to the 2. The proposed changes do not create the The proposed revisions enhance the plant configuration in the EPRI PSA possibility of a new or different kind of Technical specification (TS) requirements to Applications Guide (Reference 3). accident than any accident already evaluated provide greater consistency with the standard The consequences of a postulated accident in the FSAR. No new accident scenarios, TS in NUREG–1431. This revision proposes occurring during the extended allowable out- failure mechanisms or limiting single failures changes to the requirements for reactor service time are bounded by existing analyses are introduced as a result of the proposed coolant system (RCS) leak detection and RCS therefore there is no significant reduction in changes. The proposed technical operational leakage in Specifications 3.4.6.1 a margin of safety. specification changes have no adverse effects and 3.4.6.2, respectively. New Specifications VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56534 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 3.4.6.3 and 3.5.6 for RCS pressure isolation parameters that will ensure that the amount allowed time intervals that have been valves and emergency core cooling system of seal injection flow does not degrade the developed by the industry and NRC and (ECCS) seal injection flow have been added ECCS functions. recommended in NUREG–1431. The SR to improve consistency with NUREG–1431. The proposed changes to the SQN TS changes actually provide test condition The proposed revisions are not the result of provide flexibility without modifying the requirements that enhance the accuracy of changes to plant equipment, system design, functions of required safety systems. In many the activity even though they may allow a testing methods, or operating practices. The instances the proposed changes ensure that delay in the performance of the test. These modified requirements will allow some plant conditions for surveillance testing are surveillance changes are also in accordance relaxation of current operability criteria, more appropriate for testing purposes and the with NUREG–1431 recommendations. action requirements, and surveillance verification of system operability. These revisions will continue to provide requirements (SRs). These changes provide These changes are consistent with the the necessary actions to minimize the impact more appropriate requirements in intent of NUREG–1431 and result in the of inoperable equipment to an acceptable consideration of the safety significance and enhancement of the SQN TSs based on the level and will provide testing activities that the design capabilities of the plant as latest industry and NRC positions. The will ensure system operability. Since the determined by the improved standard TS provisions proposed in this change request setpoints and design features that support the industry effort. These specifications serve to will continue to maintain an acceptable level margin of safety are unchanged and actions primarily provide identification and control of protection for the health and safety of the for inoperable systems continue to provide of the RCS fission product barrier leakage public and will not significantly impact the appropriate time limits and compensatory and ECCS degradation and are not potential for the offsite release of radioactive measures, the proposed changes will not considered to be a contributor to the products. The overall effect of the proposed significantly reduce the margin of safety. generation of postulated accidents. Since change will result in specifications that have The NRC has reviewed the licensee’s these proposed revisions will continue to equivalent or improved requirements analysis and, based on this review, it support the required safety functions, compared to existing specifications for RCS without modification of the plant features, leakage and ECCS operability and will not appears that the three standards of 10 the probability of an accident is not significantly increase the consequences of an CFR 50.92(c) are satisfied. Therefore, the increased. accident. NRC staff proposes to determine that the The proposed changes will allow B. The proposed amendment does not amendment request involves no relaxation of action times for inoperable leak create the possibility of a new or different significant hazards consideration. detection features and the components that kind of accident from any accident Local Public Document Room can be inoperable. The required actions to previously evaluated. location: Chattanooga-Hamilton County ensure acceptable pressure isolation valve The proposed revisions are not the result Library, 1001 Broad Street, Chattanooga, capability with an inoperable valve have of changes to plant equipment, system Tennessee 37402. been revised to allow isolation by a single design, testing methods, or operating Attorney for licensee: General valve for a limited period of time. These practices. The modified requirements will revisions will allow unit operation for a allow some relaxation of current operability Counsel, Tennessee Valley Authority, longer period of time with reduced system criteria, action requirements, and SRs 400 West Summit Hill Drive, ET 10H, redundancy. However, the redundancy consistent with NUREG–1431. These changes Knoxville, Tennessee 37902. reduction and action time increases are not provide more appropriate requirements in NRC Section Chief: Sheri R. Peterson. significant and will continue to provide an consideration of the safety significance and Tennessee Valley Authority, Docket No. acceptable level of safety considering the the design capabilities of the plant as significance of RCS leakage, other design determined by the improved standard TS 50–390 Watts Bar Nuclear Plant, Unit 1, features or compensatory actions that provide industry effort. These specifications serve to Rhea County, Tennessee equivalent functions, and the unlikely primarily provide identification and control Date of amendment request: chance of an event that would require of the RCS fission product barrier leakage September 28, 1999 (TS 99–007). functions for leakage identification during and ECCS degradation and are not Description of amendment request: the proposed time interval. These considered to be a contributor to the The proposed amendment on Response considerations are consistent with the basis generation of postulated accidents. Since the Time Test (RTT) elimination would developed by the industry and NRC for functions of the associated systems will NUREG–1431. Surveillances have been continue to perform without change and revise the Watts Bar Nuclear Plant Unit removed from the RCS operational leakage were not previously considered to contribute 1 Technical Specifications (TS) specification as a result of relocated to accident generation, the proposed changes definitions for ‘‘Engineered Safety requirements, duplication of other SRs, and will not create the possibility of a new or Feature (ESF) Response Time’’ and testing requirements that do not provide a different kind of accident. ‘‘Reactor Trip System (RTS) Response significant benefit in the identification of C. The proposed amendment does not Time’’ to provide for verification of RCS leakage. The SRs that have been retained involve a significant reduction in a margin of response time for selected components or relocated to other TS specifications will safety. provided that the components and the provide acceptable verifications for the The proposed changes, associated with methodology for verification have been timely identification of conditions that RCS leakage and ECCS functions, will not indicate an unacceptable amount of RCS result in changes to system design or previously reviewed and approved by leakage or potential ECCS degradation setpoints that are intended to ensure timely the NRC. In addition, associated resulting from excessive seal injection flow. identification of plant conditions that could changes to the Bases for Surveillance The limiting condition for operation be precursors to accidents or potential Requirements would also be made. associated with the seal injection flow degradation of accident mitigation systems. Basis for proposed no significant requirements has been revised to utilize a These systems will continue to operate hazards consideration determination: modified operability criteria. The proposed without change and only the associated As required by 10 CFR 50.91(a), the change will provide a range of differential actions or testing activities have been altered. licensee has provided its analysis of the pressures and the corresponding seal flows Revisions to the actions and surveillances issue of no significant hazards that would be representative of the existing provide some relaxation and flexibility such consideration, which is presented single point flow limit. This change does not that longer intervals are allowed for alter the intent of the operability inoperable components and testing below: requirements, but does allow the flexibility to requirements are revised to provide A. The proposed amendment does not use equivalent values that provide the same conditions that provide more accurate involve a significant increase in the level of assurance for ECCS operability. The results. The increased action times are probability or consequences of an accident proposed operability condition for seal acceptable considering the available previously evaluated. injection flow enhances the current redundant features, the compensatory This change to the TS does not result in requirement by establishing additional test measures provided by the actions, and the a condition where the design, material, and VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56535 construction standards that were applicable Attorney for licensee: General Based on the plant-specific experience prior to the change are altered. The same RTS Counsel, Tennessee Valley Authority, presented in Appendix J, the estimated and ESF instrumentation is being used, the 400 West Summit Hill Drive, ET l0H, reduction in scram frequency (0.3 scrams/ time response allocations/modeling Knoxville, Tennessee 37902. yr.) represents a 1 to 2 percent decrease in assumptions in the Chapter 15 analyses are core damage frequency based on the BWR unchanged; only the method of verifying NRC Section Chief: Sheri Peterson. plant-specific Probabilistic Risk Assessments time response is changed. The proposed Vermont Yankee Nuclear Power (PRAS) listed in Table 5–8. change will not modify any system interface The increase in core damage frequency due and could not increase the likelihood of an Corporation, Docket No. 50–271, to less frequent testing is less than one accident since these events are independent Vermont Yankee Nuclear Power Station, percent. This increase is even lower (less of this change. The proposed activity will not Vernon, Vermont than 0.01 percent) when the changes change, degrade or prevent actions, or alter resulting from the implementation of the any assumptions previously made in Date of amendment request: June 15, Anticipated Transients Without Scram evaluating the radiological consequences of 1999. (ATWS) rule are considered. Therefore, this an accident described in the UFSAR Description of amendment request: increase is more than offset by the decrease [Updated Final Safety Analysis Report]. The licensee proposed revisions to in CDF due to fewer scrams. Therefore, the proposed amendment does not Technical Specifications (TSs) Sections The effect of reducing unnecessary cycles involve a significant increase in the 3.1/4.1 Reactor Protection System and on RPS equipment, although not easily probability or consequences of an accident 3.2/4.2 Protective Instrument Systems quantifiable, also results in a decrease in core previously evaluated. damage frequency. B. The proposed amendment does not instrumentation, tables, and the The overall impact on core damage create the possibility of a new or different associated bases to increase the frequency of the changes in allowable out-of- kind of accident from any accident surveillance test intervals (STIs), add service times is negligible.’’ previously evaluated. allowable out-of-service times (AOTs), From this generic analysis, the BWR This change does not alter the performance replace generic ECCS actions for Owners’ Group concluded that the proposed of pressure and differential pressure inoperable instrument channels with changes do not significantly increase the transmitters, process protection racks (Eagle function-specific actions, and relocate probability or consequences of an accident 21), nuclear instrumentation (NIS), and logic previously evaluated, namely the increase in system (SSPS) used in the plant protection selected trip functions from the TSs to a Vermont Yankee (VY) controlled probability of a scram failure due to SCRAM systems. These components/systems will still (RPS) unavailability is insignificant, and the have response time verified by test prior to document. In addition, revision to TS overall probability of an accident is actually placing the equipment in operational service Section 3.1/4.1 Reactor Protection decreased as the time the SCRAM (RPS) and after any maintenance that could affect System and the associated bases is Instrumentation logic operates as designed is the response time of that equipment. proposed to remove the RUN Mode increased resulting in less inadvertent scrams Changing the method of periodically APRM Downscale/IRM High Flux/ during testing and repair. Furthermore, the verifying instrument response time for Inoperative Scram Trip Function plant specific reports demonstrate[ ] that applicable instrumentation from RTT to (APRM Downscale RUN Mode SCRAM). although VY differs from the generic model calibration and channel checks or functional analyzed in License Topical Report NEDC– test will not create any new accident The submittal also proposes to implement editorial corrections and 30851P–A, the net effect of the plant-specific initiators or scenarios. Therefore, the differences do not alter the generic proposed amendment does not involve a administrative changes that do not alter conclusions. significant increase in the probability or the meaning or intent of the The generic analysis contained in consequences of an accident previously requirements. Licensing Topical Reports NEDC–30851P–A evaluated. Basis for proposed no significant Suppl 2/NEDC–31677P–A assessed the C. The proposed amendment does not hazards consideration determination: impact of changing STIs and AOTs for BWR involve a significant reduction in a margin of As required by 10 CFR 50.91(a), the Isolation Instrumentation common/not safety. common to SCRAM (RPS) and ECCS This change does not affect the total system licensee has provided its analysis of the issue of no significant hazards instrumentation. Specifically, Section 4.0, response time assumed in the safety analysis. ‘‘Summary of Results,’’ of NEDC–30851P–A The periodic system response time consideration which is presented below: Suppl 2 states that: verification method for selected pressure and 1. The operation of Vermont Yankee ‘‘The results indicate that the effects on pressure differential sensors, Eagle 21, NIS, Nuclear Power Station in accordance with probability of failure to initiate isolation are and SSPS is modified to allow use of actual the proposed amendment, will not involve a very small and the effects on probability or test data or engineering data. The method of significant increase in the probability or frequency of failure to isolate are negligible verification still provides assurance that the consequences of an accident previously in nearly every case. In addition, the results total system response time is within that evaluated. indicate that increasing the AOT to 24 hours assumed in the safety analysis, since VY has determined that the proposed for tests and repairs has a negligible effect on calibration checks and functional tests will change does not involve a significant the probability of failure of the isolation detect any degradation which might significantly affect equipment response time. increase in the probability or consequences function. These combined with changes to Therefore, the proposed license amendment of an accident previously evaluated. The the testing intervals and allowed out-of- request does not result in a significant generic analysis contained in Licensing service times for RPS and ECCS reduction in margin of safety. Topical Report NEDC–30851P–A assessed instrumentation provide a net improvement the impact of changing SCRAM (RPS) to plant safety and operations.’’ The NRC staff has reviewed the surveillance test intervals for Logic and and Section 5.6, ‘‘Assessment of Net Effect of licensee’s analysis and, based on this Functional tests (STIs) and adding allowable Changes,’’ of NEDC–31677P–A states that: review, it appears that the three out-of-service times (AOTs) on the SCRAM ‘‘A reduction in core damage frequency standards of 10 CFR 50.92(c) are (RPS) failure frequency, the scram frequency (CDF) of at least as much as estimated in the satisfied. Therefore, the NRC staff and equipment cycling. Specifically, Section ECCS instrumentation analysis can be proposes to determine that the 5.7.4, ‘‘Significant Hazards Assessment,’’ of expected when the isolation actuation NEDC–30851P–A states that: instrumentation STIs are changed from one amendment request involves no ‘‘Fewer challenges to the safeguards month to three months. The chief contributor significant hazards consideration. system, due to less frequent testing of the to this reduction is the channel functional Local Public Document Room RPS, conservatively results in a decrease of tests for the MSIVs. Inadvertent closure of the location: Chattanooga-Hamilton County approximately one percent in core damage MSIVs will cause an unnecessary plant Library, 1001 Broad Street, Chattanooga, frequency. This decrease is based upon the scram. This reduction in CDF more than TN 37402. following: compensates for any small incremental VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56536 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices increase (10% or 1OE–07/year) in calculated From this generic analysis, the BWR The design basis accident applicable to the isolation function failure frequency when the Owners’ Group concluded that the proposed startup power region is the Control Rod Drop STI is extended to three months.’’ changes do not significantly increase the Accident (CRDA). The UFSAR does not From this generic analysis, the BWR probability of an accident previously credit the RUN Mode IRM High Flux/ Owners’ Group concluded that the proposed evaluated or consequences of an accident Inoperative with the associated APRM changes do not significantly increase the previously evaluated. downscale scram Trip Function (APRM consequences of an accident previously Bases contained in GE Topical Report downscale RUN Mode SCRAM) in the evaluated, namely the increase in probability GENE–770–06–1 assessed the impact of termination of this accident, Accident of an isolation failure due to isolation changing STIs and AOTs on selected systems mitigation is provided by the APRM 120% instrumentation unavailability is failure frequency. Specifically, Section 2.0, power scram. Therefore, elimination of the insignificant, and the overall probability of ‘‘Summary,’’ of GENE 770–06–1 states that: APRM downscale RUN Mode SCRAM an accident is actually decreased as the time ‘‘Technical bases are provided for selected function has no adverse affect on previously the SCRAM (RPS) Instrumentation logic proposed changes to the instrumentation evaluated accidents. operates as designed is increased resulting in STIs and AOTs that were identified in the The Continuous Control Rod Withdrawal less inadvertent scrams during testing and BWROG Improved BWR Technical Error (CWE) transient is terminated by the repair. Specification activity. These STI and AOT Rod Block Monitor (RBM) in the RUN Mode. The generic analysis contained in changes are consistent with approved The APRM Reduced High Flux Scram Licensing Topical Report NEDC–30936P–A changes to the RPS, ECCS, and isolation provides the primary STARTUP Mode (Parts 1 and 2) assessed the impact of actuation instrumentation. These proposed protection in conjunction with the IRMs and changing STIs and AOTs for all BWR ECCS changes do not result in a degradation to limits the consequences of this transient. Actuation Instrumentation. Specifically, overall plant safety.’’ Therefore, elimination of the APRM Section 4.0, ‘‘Technical Assessment of From these Bases, the BWR Owners’ Group downscale RUN Mode SCRAM function has Changes,’’ of NEDC–30936P–A (Part 2) states concluded that the proposed changes do not no effect on the consequences of this that: significantly increase the probability of an transient. ‘‘The results indicate an insignificant (less accident previously evaluated or Adding a new surveillance to verify SRM/ than 5E–7 per year) increase in water consequences of an accident previously IRM/APRM will enhance neutron monitoring injection function failure frequency when evaluated. during startups and shutdowns and does not STIs are increased from 31 days to 92 days, Bases contained in GE Topical Report have an adverse affect on previously AOTs for repair of the ECCS actuation GENE–770–06–2 assessed the impact of evaluated accidents. instrumentation are increased from one hour changing STIs and AOTs on selected systems None of the proposed changes will affect (RCIC Actuation) failure frequency. to 24 hours, and AOTs for surveillance any of the rod blocks or other precursor Specifically, Section 2.0, ‘‘Summary,’’ of testing are increased from two to six hours. events to either the CRDA or CWE. Therefore, GENE 770–06–2 states that: For all four BWR models the increase there is no change in the probability of any ‘‘The STI and AOT changes to the RCIC represents less than 4% increase in failure accident previously analyzed. actuation instrumentation are justified based frequency. However, when other factors Use of ECCS Function-specific AOTs, on their small effect on the water injection which influence the overall plant safety are function unavailability and consistency with actions and relocation of Bus Power Monitors considered, the net result is judged to be an comparable changes to the actuation to a licensee controlled document is improvement in plant safety.’’ instrumentation for the other ECCS consistent with STS and does not have an From this generic analysis, the BWR subsystems’’. These STI and AOT changes adverse affect on previously evaluated Owners’ Group concluded that the proposed are consistent with approved changes to the accidents. changes do not significantly increase the RPS, ECCS, and isolation actuation In addition, VY concluded the editorial probability or consequences of an accident instrumentation. These proposed changes do corrections and administrative changes do previously evaluated, namely the increase in not result in a degradation to overall plant not involve a significant increase in the probability of a water injection failure due to safety.’’ probability or consequences of an accident ECCS instrumentation unavailability is From these Bases, the BWR Owners’ Group previously evaluated. These changes do not insignificant and the net result is judged to concluded that the proposed changes do not alter the meaning or intent of any be an improvement in plant safety. significantly increase the probability of an requirements. Furthermore, the plant specific report accident previously evaluated or 2. The operation of Vermont Yankee demonstrates that although VY differs from consequences of an accident previously Nuclear Power Station in accordance with the generic model analyzed in Licensing evaluated. the proposed amendment, will not create the Topical Report NEDC30936P–A, the net The proposed change will not alter the possibility of a new or different kind of affect of the plant-specific differences do not physical characteristics of any plant systems accident from an accident previously alter the generic conclusions. or components and all safety-related systems evaluated. The generic analysis contained in and components remain within their VY has determined that the proposed Licensing Topical Report NEDC–30851 P–A applicable design limits. Thus, system and change does not create the possibility of a Supp 1, assessed the impact of changing Rod component performance is not adversely new or different kind of accident from any Block STIs on Rod Block failure frequency. affected by this change, thereby assuring that accident previously evaluated. Specifically, Section 5 (BNL’s Tech. Eval. the design capabilities of those systems and The proposed change will not alter the Report—Attach. 2 to the NRC SER) of NEDC– components are not challenged in a manner physical characteristics of any plant systems 30851 P–A Suppl 1 states that: not previously assessed so as to create the or components and all safety-related systems ‘‘The BWR Owners’’ Group proposed possibility of a new or different kind of and components remain within their changes to the Technical Specifications accident. applicable design limits. Thus, system and concerning the test requirements for BWR The addition of allowable out-of-service component performance is not adversely control rod block instrumentation. The times (AOTs) and the increase in surveillance affected by this change, thereby assuring that changes consist of increasing the surveillance test intervals (STIS) does not alter the the design capabilities of those systems and test intervals from one to three months. function of the SCRAM (RPS), ECCS, components are not challenged in a manner These test interval extensions are consistent Isolation, Rod Block, and Selected not previously assessed so as to create the with the already approved changes to STIs Instrument Systems nor involve any type of possibility of a new or different kind of for the reactor protection system. The plant modification and no new modes of accident. Editorial corrections and technical analysis reviewed and verified as plant operation are involved with these administrative changes do not alter the documented herein indicates that there will changes. meaning or intent of any requirements. be no significant changes in the availability No physical change is being made to any The addition of allowable out-of-service of the control rod block function if these systems or components that are credited in times (AOTs), ECCS function-specific actions changes are implemented. In addition, there the safety analysis, therefore there is no and the increase in surveillance test intervals will be a negligible impact on the plant core change in the probability or consequences of (STIs) does not alter the function of the melt frequency due to the decreased testing.’’ any accident analyzed in the UFSAR. SCRAM (RPS), ECCS, Isolation, Rod Block, VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56537 and Selected Instrument Systems nor involve of any analyzed event, is removed by this As required by 10 CFR 50.91(a), the any type of plan modification and no new change. Removal of the APRM Downscale licensee has provided its analysis of the modes of plant operation are involved with RUN Mode SCRAM will avoid the need to issue of no significant hazards these changes. Therefore, operation in operate the plant in a ‘‘half scram’’ condition consideration which is presented below: accordance with the proposed amendment with the potential for an inadvertent plant will not create the possibility of a new or transient. For these reasons, the change does 1. Will the proposed changes involve a different kind of accident from any accident not involve a significant reduction in a significant increase in the probability or previously evaluated. margin of safety. consequences of an accident previously Elimination of APRM downscale RUN The Continuous Control Rod Withdrawal evaluated? Mode SCRAM function affects only the Error (CWE) transient is terminated by the The diesel generators are used to support operations of neutron monitoring and Rod Block Monitor (RBM) in the RUN Mode. mitigation of the consequences of an protective systems (IRM and APRM) which When initiated from the STARTUP Mode, the accident; however, they are not considered provide indication and mitigation actions consequences of a CWE are limited by the the initiator of any previously analyzed only. Operation of these systems does not APRM Reduced High Flux scram in accident. This change does not challenge or create the possibility for new precursors conjunction with the IRM scram function. degrade the performance of any safety system (such as reactivity) which would introduce a Therefore eliminating the TS requirement for assumed to function in the accident analysis. new or different kind of accident from any the APRM Downscale RUN Mode SCRAM Since this change simply increases the accident previously evaluated. will not reduce the margin of safety for this minimum volume of stored diesel generator Additionally, the proposed changes do not transient. fuel in the FOST, its impact is to enhance the long-term operation of diesel generators used affect the ability of those systems required to Adding a new surveillance to verify SRM/ to mitigate the consequences of accidents. mitigate previously evaluated accidents IRM/APRM overlap will enhance neutron Therefore, the proposed change does not during the modes they are credited. monitoring during startups and shutdown, involve a significant increase in the 3. The operation of Vermont Yankee and consequently does not involve a probability or consequences of an accident Nuclear Power Station in accordance with significant reduction in a margin of safety. the proposed amendment, will not involve a previously evaluated. On the basis of the above, VY has 2. Will the proposed changes create the significant reduction in a margin of safety determined that operation of the facility in The NRC staff has reviewed and approved possibility of a new or different kind of accordance with the proposed change does accident from any accident previously the generic studies contained in the GE not involve a significant hazards Topical Reports (LTRs) and has concurred evaluated? consideration as defined in 10 CFR 50.92(c), This change does not affect the design or with the BWR Owners’ Group that the in that it: (1) does not involve a significant mode of operation of any plant system, proposed changes do not significantly affect increase in the probability or consequences structure or component. No physical the availability of the SCRAM (RPS), ECCS, of an accident previously evaluated; (2) does alteration of plant structures, systems or Isolation, Rod Block, or Selected Instrument not create the possibility of a new or different components is involved, and no new or Systems. The proposed addition of allowable kind of accident from any accident different type of equipment will be installed. out-of-service times (AOTs) for the previously evaluated; and (3) does not Thus, no new condition of operation is instruments addressed in the LTRs provide involve a significant reduction in a margin of created. The change is conservative in that it reasonable time for making repairs and safety. results in a net increase in the minimum performing tests. The lack of sufficient AOTs required diesel fuel oil stored in the FOST. in the current Technical Specifications (TS) The NRC staff has reviewed the licensee’s analysis and, based on this Therefore, the proposed change does not creates a hurried atmosphere during repairs create the possibility of a new or different and tests that could cause an increased risk review, it appears that the three kind of accident from any accident of error. In addition, placing an individual standards of 10 CFR 50.92(c) are previously evaluated for Vermont Yankee. channel in a tripped condition because no satisfied. Therefore, the NRC staff 3. Will the proposed changes involve a AOT exists, as in the current TS, increases proposes to determine that the significant reduction in a margin of safety? the potential of an inadvertent scram. The amendment request involves no The[ ] proposed change does not adversely proposed AOTs provide realistic times to significant hazards consideration. affect a margin of safety because increasing complete the required actions without Local Public Document Room the minimum required volume of fuel oil increasing the overall instrument failure provides additional assurance of diesel frequency. Use of ECCS Function-specific location: Brooks Memorial Library, 224 Main Street, Brattleboro, VT 05301 generator availability and, therefore, AOTs, actions and relocation of Bus Power maintains or increases the availability of the Monitors to a licensee controlled document Attorney for licensee: Mr. David R. onsite power supply. Since this change is consistent with STS and there is no Lewis, Shaw, Pittman, Potts and simply increases the quantity of diesel fuel significant reduction in the margin of safety. Trowbridge, 2300 N Street, NW., oil available for diesel generator operation, Editorial corrections and administrative Washington, DC 20037–1128. there is no reduction in any value, condition, changes do not alter the meaning or intent of NRC Section Chief: James W. Clifford. or range of parameters used in any accident any requirements. Therefore, there is no analysis. significant reduction in the margin of safety. Vermont Yankee Nuclear Power Therefore, the proposed change does not The incorporation of extended surveillance Corporation, Docket No. 50–271, involve a significant reduction in a margin of test intervals (STIs) does not result in Vermont Yankee Nuclear Power Station, safety. significant changes in the probability of Vernon, Vermont instrument failure, as demonstrated by the The NRC staff has reviewed the LTRs. In addition, the TS calibration Date of amendment request: licensee’s analysis and, based on this frequency has not changed, and therefore September 21, 1999. review, it appears that the three assurance exists that the setpoints will not be Description of amendment request: standards of 10 CFR 50.92(c) are affected by drift. The proposed amendment would satisfied. Therefore, the NRC staff These changes, when coupled with the modify Technical Specification (TS) proposes to determine that the reduced probability of test-induced plant 3.10.C, ‘‘Diesel Fuel’’ by increasing the amendment request involves no transients and equipment failures, result in minimum usable volume of diesel fuel significant hazards consideration. an overall increase in the margin of safety. in the diesel fuel oil storage tank Local Public Document Room The only scram function that the UFSAR (FOST). The specified minimum takes credit for in the mitigation of the location: Brooks Memorial Library, 224 limiting accident (control rod drop accident) amount of diesel fuel is that quantity Main Street, Brattleboro, VT. is the APRM 120% power scram which is not necessary to support diesel generator Attorney for licensee: Mr. David R. affected by this change. Only the APRM operation for a period of 7 days. Lewis, Shaw, Pittman, Potts and Downscale RUN Mode SCRAM, for which Basis for proposed no significant Trowbridge, 2300 N Street, NW., the UFSAR takes no credit in the termination hazards consideration determination: Washington, DC 20037–1128. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56538 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices NRC Section Chief: James W. Clifford. William Allen White Library, 1200 taken. Operation would be allowed to Commercial Street, Emporia, Kansas continue until the next plant shutdown. Wolf Creek Nuclear Operating 66801 and Washburn University School Because the NRC staff issued the Corporation, Docket No. 50–482, Wolf of Law Library, Topeka, Kansas 66621. Fermi 2 improved standard TSs (ITS) on Creek Generating Station, Coffey Attorney for licensee: Jay Silberg, Esq., September 30, 1999, with County, Kansas Shaw, Pittman, Potts and Trowbridge, implementation within 90 days, the Date of amendment request: 2300 N Street, N.W., Washington, D.C. licensee also provided a version of the September 21, 1999. 20037. TS amendment that would be Description of amendment request: NRC Section Chief: Stephen Dembek. compatible with the ITS. This version The proposed amendment would extend would add a new special operations TS, Previously Published Notices of the effective full implementation date ITS 3.10.8, to address the compensatory Consideration of Issuance of by six months, from December 31, 1999, actions and other requirements Amendments To Facility Operating to June 30, 2000, for Amendment 120 associated with penetration X–26. issued March 22, 1999. Amendment 120 Licenses, Proposed No Significant Date of publication of individual approved a modification to the plant to Hazards Consideration Determination, notice in Federal Register: October 1, increase the storage capacity of the and Opportunity for a Hearing 1999 (64 FR 53421). spent fuel pool and increase the The following notices were previously Expiration date of individual notice: nominal fuel enrichment to 5 weight published as separate individual Comment period expires October 15, percent U-235. The extension is due to notices. The notice content was the 1999; Opportunity for hearing period delays fabricating and installing the new same as above. They were published as expires November 1, 1999. spent fuel storage racks. individual notices either because time Local Public Document Room Basis for proposed no significant did not allow the Commission to wait location: Monroe County Library hazards consideration determination: for this biweekly notice or because the System, Ellis Reference and Information As required by 10 CFR 50.91(a), the action involved exigent circumstances. Center, 3700 South Custer Road, licensee has provided its analysis of the They are repeated here because the Monroe, Michigan 48161. issue of no significant hazards biweekly notice lists all amendments Notice of Issuance of Amendments to consideration, which is presented issued or proposed to be issued Facility Operating Licenses below: involving no significant hazards During the period since publication of 1. The proposed change does not involve consideration. a significant increase in the probability or For details, see the individual notice the last biweekly notice, the consequences of an accident previously in the Federal Register on the day and Commission has issued the following evaluated. page cited. This notice does not extend amendments. The Commission has The proposed change is administrative in the notice period of the original notice. determined for each of these nature and does not significantly affect any amendments that the application system that is a contributor to initiating Consolidated Edison Company of New complies with the standards and events for previously evaluated accidents. York, Docket No. 50–003, Indian Point requirements of the Atomic Energy Act The proposed change does not significantly Nuclear Generating Station, Unit No. 1, of 1954, as amended (the Act), and the affect any system that is used to mitigate any Buchanan, New York previously evaluated accidents. Therefore, Commission’s rules and regulations. the proposed change does not involve any Date of amendment request: July 20, The Commission has made appropriate significant increase in the probability or 1999. findings as required by the Act and the consequences of an accident previously Description of amendment request: Commission’s rules and regulations in evaluated. The amendment would revise the 10 CFR Chapter I, which are set forth in 2. The proposed change does not create the Technical Specifications to change the the license amendment. possibility of a new or different kind of Notice of Consideration of Issuance of accident from any accident previously senior reactor license requirement for evaluated. the Operations Manager. Amendment to Facility Operating The proposed change is administrative in Date of publication of individual License, Proposed No Significant nature and does not alter the design, notice in Federal Register: September 9, Hazards Consideration Determination, function, or operation of any plant 1999 (64 FR 49027). and Opportunity for A Hearing in component and does not install any new or Expiration date of individual notice: connection with these actions was different equipment. Therefore, a possibility October 12, 1999. published in the Federal Register as of a new or different kind of accident from Local Public Document Room indicated. those previously analyzed has not been Unless otherwise indicated, the created. location: White Plains Public Library, 3. The proposed change does not involve 100 Martine Avenue, White Plains, New Commission has determined that these a significant reduction in a margin of safety. York. amendments satisfy the criteria for categorical exclusion in accordance The proposed change is administrative in Detroit Edison Company, Docket No. nature and does not involve a significant with 10 CFR 51.22. Therefore, pursuant reduction in the margin of safety associated 50–341, Fermi 2, Monroe County, to 10 CFR 51.22(b), no environmental with the fuel cladding, reactor coolant Michigan impact statement or environmental boundary, containment, or any safety limit. Date of amendment request: assessment need be prepared for these The NRC staff has reviewed the September 24, 1999. amendments. If the Commission has licensee’s analysis and, based on this Description of amendment request: prepared an environmental assessment review, it appears that the three The proposed amendment would revise under the special circumstances standards of 10 CFR 50.92(c) are current Technical Specification (TS) provision in 10 CFR 51.12(b) and has satisfied. Therefore, the NRC staff 3.6.1.8 by adding footnote ‘‘**’’ to made a determination based on that proposes to determine that the Action b. The footnote would allow assessment, it is so indicated. amendment request involves no continued operation of Fermi 2 with the For further details with respect to the significant hazards consideration. leakage of penetration X–26 exceeding action see (1) the applications for Local Public Document Room the limit in TS 4.6.1.8.2, provided amendment, (2) the amendment, and (3) locations: Emporia State University, certain compensatory measures are the Commission’s related letter, Safety VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56539 Evaluation and/or Environmental Facility Operating License Nos. DPR– within 90 days from the date of Assessment as indicated. All of these 19 and DPR–25: The amendments issuance. items are available for public inspection revised the Technical Specifications. Amendment Nos.: Unit 1–307; Unit at the Commission’s Public Document Date of initial notice in Federal 2–307; Unit 3–307. Room, the Gelman Building, 2120 L Register: July 14, 1999 (64 FR 38024). Facility Operating License Nos. DPR– Street, NW., Washington, DC, and at the The Commission’s related evaluation 38, DPR–47, and DPR–55: Amendments local public document rooms for the of the amendments is contained in a revised the Technical Specifications. particular facilities involved. Safety Evaluation dated October 1, 1999. Date of initial notice in Federal No significant hazards consideration Register: June 16, 1999 (64 FR 32289). Commonwealth Edison Company, comments received: No. The Commission’s related evaluation Docket Nos. 50–237 and 50–249, Local Public Document Room of the amendments is contained in a Dresden Nuclear Power Station, Units 2 location: Morris Area Public Library Safety Evaluation dated October 1, 1999. and 3, Grundy County, Illinois District, 604 Liberty Street, Morris, No significant hazards consideration Date of application for amendments: Illinois 60450. comments received: No. May 20, 1999, as supplemented by Commonwealth Edison Company, Local Public Document Room letters dated September 8, 1999, Docket Nos. 50–373 and 50–374, LaSalle location: Oconee County Library, 501 September 16, 1999, and September 20, County Station, Units 1 and 2, LaSalle West South Broad Street, Walhalla, 1999. County, Illinois South Carolina. Brief description of amendments: The Date of application for amendments: Energy Northwest, Docket No. 50–397, amendments revised Technical May 19, 1999. WNP–2, Benton County, Washington Specification (TS) Section 3.8.A, Brief description of amendments: The ‘‘Containment Cooling Service Water Date of application for amendment: amendments relocated Technical System,’’ (CCSW) to clarify that only April 7, 1999, as supplemented by Specification 3/4.4.4, ‘‘Chemistry,’’ from one pump is required to support letters dated May 25, June 21, August 2, the TS to the Updated Final Safety operability of the Control Room and August 30, 1999. Analysis Report (UFSAR) and to an Emergency Ventilation System (CREVS). Brief description of amendment: The Administrative Technical Requirement Date of issuance: October 1, 1999. amendment revises the minimum that has been incorporated into the Effective date: Immediately, to be critical power ratio safety limits. UFSAR by reference. implemented within 30 days. Date of issuance: September 27, 1999. Date of issuance: October 1, 1999. Effective date: September 27, 1999. Amendment Nos.: 174 and 170. Effective date: Immediately, to be Facility Operating License Nos. DPR– Amendment No.: 158. implemented within 30 days. Facility Operating License No. NPF– 19 and DPR–25: The amendments Amendment Nos.: 134 and 119. revised the Technical Specifications. Facility Operating License Nos. NPF– 21: The amendment revised the Date of initial notice in Federal 11 and NPF–18: The amendments Technical Specifications. Date of initial notice in Federal Register: August 25, 1999 (64 FR 46426). revised the Technical Specifications. The September 8, September 16, and Date of initial notice in Federal Register: May 19, 1999 (64 FR 27329). September 20, 1999, submittals Register: July 14, 1999 (64 FR 38024). The May 25, June 21, August 2 and provided additional clarifying The Commission’s related evaluation August 30, 1999, supplemental letters information that did not change the of the amendments is contained in a provided additional clarifying initial proposed no significant hazards Safety Evaluation dated October 1, 1999. information that did not expand the consideration determination. No significant hazards consideration scope of the application as originally The Commission’s related evaluation comments received: No. noticed and did not change the staff’s of the amendments is contained in a Local Public Document Room original proposed no significant hazards Safety Evaluation dated October 1, 1999. location: Jacobs Memorial Library, 815 consideration determination. No significant hazards consideration North Orlando Smith Avenue, Illinois The Commission’s related evaluation comments received: No. Valley Community College, Oglesby, of the amendment is contained in a Local Public Document Room Illinois 61348–9692. Safety Evaluation dated September 27, location: Morris Area Public Library 1999. District, 604 Liberty Street, Morris, Duke Energy Corporation, Docket Nos. No significant hazards consideration Illinois 60450. 50–269, 50–270, and 50–287, Oconee comments received: No. Nuclear Station, Units 1, 2, and 3, Local Public Document Room Commonwealth Edison Company, Oconee County, South Carolina location: Richland Public Library, 955 Docket Nos. 50–237 and 50–249, Date of application of amendments: Northgate Street, Richland, Washington Dresden Nuclear Power Station, Units 2 May 11, 1999, as supplemented by letter 99352. and 3, Grundy County, Illinois dated July 13, 1999. Energy Northwest, Docket No. 50–397, Date of application for amendments: Brief description of amendments: The WNP–2, Benton County, Washington June 15, 1999. amendments revised the Technical Brief description of amendments: The Specifications by incorporating changes Date of application for amendment: amendments revised Technical to the pressure-temperature limits; the April 20, 1999, as supplemented by Specification (TS) 4.7.D.6 by replacing heatup, cooldown, and inservice test letter dated September 9, 1999. the leakage limit of 11.5 standard cubic limits for the reactor coolant system to Brief description of amendment: The feet per hour (scfh) for each main steam a maximum of 33 Effective Full Power amendment revised Technical isolation valve (MSIV) with a limit of 46 Years; the low temperature overpressure Specification 3.4.11, ‘‘RCS Pressure and scfh on the total combined leakage for protection system; and operational Temperature (PT) Limits,’’ for 32 the MSIVs of all four main steam lines. requirements for the reactor coolant effective full power years (EFPY) using Date of issuance: October 1, 1999. pumps. the latest vessel beltline material and Effective date: Immediately, to be Date of Issuance: October 1, 1999. fluence data. implemented within 30 days. Effective date: As of the date of Date of issuance: October 6, 1999. Amendment Nos.: 175 and 171. issuance and shall be implemented Effective date: October 6, 1999. VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56540 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Amendment No.: 159. Entergy Operations, Inc., Docket No. 50– The Commission’s related evaluation Facility Operating License No. NPF– 382, Waterford Steam Electric Station, of the amendment is contained in a 21: The amendment revised the Unit 3, St. Charles Parish, Louisiana Safety Evaluation dated October 4, 1999. Technical Specifications. Date of amendment request: July 2, No significant hazards consideration Federal Date of initial notice in 1998, as supplemented by letters dated comments received: No. Register Local Public Document Room : May 19, 1999 (64 FR 27330). July 7 and August 24, 1999. location: Indian River Junior College The September 9, 1999, supplemental Brief description of amendment: The Library, 3209 Virginia Avenue, Fort letter provided additional clarifying amendment changes the ACTION Pierce, Florida 34954–9003. information, did not significantly requirements for Technical expand the scope of the application as Specification (TS) 3/4.3.2 for the Florida Power Corporation, et al., originally noticed and did not change Emergency Feedwater Actuation Signal Docket No. 50–302, Crystal River the staff’s original proposed no (EFAS). This change revises the allowed Nuclear Generating Plant, Unit 3, Citrus significant hazards consideration outage time for a channel of EFAS to be County, Florida determination. in the tripped condition from ‘‘prior to Date of application for amendment: The Commission’s related evaluation entry into the applicable MODE(S) of the amendment is contained in a May 5, 1999, as supplemented May 21, following the next COLD SHUTDOWN’’ May 28, August 20, and September 2, Safety Evaluation dated October 6, 1999. to the more restrictive time limit of 48 No significant hazards consideration 1999. hours and adds a shutdown comments received: No. Brief description of amendment: requirement. Additionally, the TS 3.0.4 Local Public Document Room Changes the Crystal River Unit 3 exemption is removed from the ACTION location: Richland Public Library, 955 Technical Specifications to allow an statement for the tripped condition. Northgate Street, Richland, Washington alternate repair criteria (ARC) for axial Changes to TS Bases Section 3/4.3.2 are 99352. tube end crack-like indications in the also included to support the changes. upper and lower tubesheets of the Once- Entergy Operations, Inc., Docket No. 50– Date of issuance: October 6, 1999. Through Steam Generators (OTSGs). 313, Arkansas Nuclear One, Unit No. 1, Effective date: As of the date of The ARC will allow leaving OTSG tubes Pope County, Arkansas issuance and shall be implemented with axially oriented tube end cracks within 60 days from the date of Date of amendment request: May 14, located within the clad region of the issuance. 1999, as supplemented by letters dated tube-to-tubesheet roll joint in service. Amendment No.: 154. Date of issuance: October 1, 1999. June 17, and September 7, 15, 17, and Facility Operating License No. NPF– 24, 1999. Effective date: October 1, 1999. 38: Amendment revised the Technical Amendment No.: 188. Brief description of amendment: The Specifications. amendment revises the Technical Facility Operating License No. DPR– Date of initial notice in Federal 72: Amendment revised the Technical Specification requirements affecting the Register: December 16, 1998 (63 FR surveillance criteria for that portion of Specifications. 69339). The July 7 and August 24, 1999, Date of initial notice in Federal the once-through steam generator tubes letters provided additional information Register: June 2, 1999 (64 FR 29710). The regarded as a primary-to-secondary that did not change the scope of the July May 21, May 28, August 20, and pressure boundary located within the 2, 1998, application and the initial September 2, 1999, supplements did not upper tubesheet and impacted by a proposed no significant hazards affect the original no significant hazards specific degradation mechanism, consideration determination. consideration determination, or expand namely, outside diameter intergranular The Commission’s related evaluation the scope of the amendment request as attack. of the amendment is contained in a originally noticed. Date of issuance: October 4, 1999. Safety Evaluation dated October 6, 1999. The Commission’s related evaluation Effective date: As of the date of No significant hazards consideration of the amendment is contained in a issuance and shall be implemented comments received: No. Safety Evaluation dated October 1, 1999. prior to startup from the Unit 1 Cycle 15 Local Public Document Room No significant hazards consideration refueling outage. location: University of New Orleans comments received: No. Amendment No.: 202. Library, Louisiana Collection, Lakefront, Local Public Document Room Facility Operating License No. DPR– New Orleans, Louisiana 70122. location: Coastal Region Library, 8619 51: Amendment revised the Technical Florida Power and Light Company, et W. Crystal Street, Crystal River, Florida Specifications. 34428. Date of initial notice in Federal al., Docket No. 50–389, St. Lucie Plant, Register: June 2, 1999 (64 FR 29709). Unit No. 2, St. Lucie County, Florida Florida Power Corporation, et al., The June 17, and September 7, 15, 17, Date of application for amendment: Docket No. 50–302, Crystal River Unit and 24, 1999, letters provided clarifying February 23, 1999. No. 3 Nuclear Generating Plant, Citrus and additional information that did not Brief description of amendment: This County, Florida change the scope of the May 14, 1999, amendment removes redundant boron Date of application for amendment: application and the initial proposed no concentration monitoring requirements December 29, 1998, as supplemented significant hazards consideration specified for Modes 3 through 6 June 18, 1999. determination. contained in TS 3/4.1.2.9, ‘‘Reactivity Brief description of amendment: The Commission’s related evaluation Control Systems-Boron Dilution.’’ Transfer of the license for Crystal River of the amendment is contained in a Date of Issuance: October 4, 1999. Unit 3, to the extent it is held by the Safety Evaluation dated October 4, 1999. Effective Date: October 4, 1999. City of Tallahassee, to Florida Power No significant hazards consideration Amendment No.: 104. Corporation. comments received: No. Facility Operating License No. NPF– Date of issuance: October 1, 1999. Local Public Document Room 16: Amendment revised the Technical Effective date: October 1, 1999. location: Tomlinson Library, Arkansas Specifications. Amendment No.: 189. Tech University, Russellville, Arkansas Date of initial notice in Federal Facility Operating License No. DPR– 72801. Register: August 25, 1999 (64 FR 46440). 31: Amendment revised the License. VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56541 Date of initial notice in Federal Date of issuance: October 5, 1999. retracted position interlock input, Register: February 26, 1999 (64 FR 9544). Effective date: As of its date of which is currently required by the The supplemental letter dated June 18, issuance, and shall be implemented Peach Bottom Atomic Power Station, 1999, did not change the original within 60 days. Units 2 and 3, Technical Specification proposed no significant hazards Amendment No.: 64. SR 3.9.1.1. consideration determination, or expand Facility Operating License No. NPF– Date of issuance: September 24, 1999. the scope of the amendment request as 86: Amendment revised the Technical Effective date: As of the date of originally noticed. Specifications. issuance and shall be implemented The Commission’s related evaluation Date of initial notice in Federal within 30 days from the date of of the amendment is contained in a Register: April 22, 1998 (63 FR 19973). issuance. Safety Evaluation dated September 8, The June 17, 1998, supplement Amendments Nos.: 229 and 232. 1999. provided clarifying information and did Facility Operating License Nos. DPR– No significant hazards consideration not change the staff’s proposed no 44 and DPR–56: The amendments comments received: No. significant hazards determination. revised the Technical Specifications. Local Public Document Room The Commission’s related evaluation Date of initial notice in Federal location: Coastal Region Library, 8619 of the amendment is contained in a Register: August 11, 1999 (64 FR 43774). W. Crystal River, Florida 34428. Safety Evaluation dated October 5, 1999. The July 21, 1999, letter provided North Atlantic Energy Service No significant hazards consideration clarifying information that did not Corporation, et al., Docket No. 50–443, comments received: No. change the initial proposed no Seabrook Station, Unit No. 1, Local Public Document Room significant hazards consideration Rockingham County, New Hampshire location: Exeter Public Library, determination. Founders Park, Exeter, NH 03833. Date of amendment request: The Commission’s related evaluation December 16, 1998. Omaha Public Power District, Docket of the amendments is contained in a Brief description of amendment: The No. 50–285, Fort Calhoun Station, Unit Safety Evaluation dated September 24, amendment relocates Technical No. 1, Washington County, Nebraska 1999. No significant hazards consideration Specification (TS) 3/4.7.10 ‘‘Area Date of amendment request: March comments received: No. Temperature Monitoring,’’ and the 31, 1999. associated TS Table 3.7–3, to the Brief description of amendment: The Local Public Document Room Technical Requirements Manual, which amendment revised Sections 2.10.4, 3.1, location: Government Publications is referenced in the Seabrook Station and Table 3–3 of the technical Section, State Library of Pennsylvania, Updated Final Safety Analysis Report specifications to increase the minimum (Regional Depository) Education and is the implementing manual for the required reactor coolant system (RCS) Building, Walnut Street and TS improvement program referenced in flow rate and change surveillance Commonwealth Avenue, Box 1601, Section 6.7 of the TSs. requirements for RCS flow rate. Harrisburg, PA 17105. Date of issuance: October 1, 1999. Date of issuance: October 6, 1999. Effective date: As of the date of PECO Energy Company, Public Service Effective date: October 6, 1999, to be issuance, and shall be implemented Electric and Gas Company, Delmarva implemented within 30 days from the within 90 days. Power and Light Company, and Atlantic Amendment No.: 63. date of issuance. City Electric Company, Docket No. 50– Facility Operating License No. NPF– Amendment No.: 193. 278, Peach Bottom Atomic Power 86: Amendment revised the Technical Facility Operating License No. DPR– Station, Unit No. 3, York County, Specifications. 40. Amendment revised the Technical Pennsylvania Specifications. Date of initial notice in Federal Date of application for amendment: Register: February 10, 1999 (64 FR 6700). Date of initial notice in Federal Register: May 19, 1999 (64 FR 27322). July 12, 1999, and supplemented August The Commission’s related evaluation 30, 1999. of the amendment is contained in a The Commission’s related evaluation of the amendment is contained in a Brief description of amendment: The Safety Evaluation dated October 1, 1999. amendment changed the minimum No significant hazards consideration Safety Evaluation dated October 6, 1999. critical power ratio safety limit and the comments received: No. No significant hazards consideration Local Public Document Room comments received: No. approved methodologies referenced in location: Exeter Public Library, Local Public Document Room the core operating limits report. Founders Park, Exeter, NH 03833. location: W. Dale Clark Library, 215 Date of issuance: October 5, 1999. South 15th Street, Omaha, Nebraska Effective date: As of date of issuance North Atlantic Energy Service 68102. and shall be implemented prior to the Corporation, et al., Docket No. 50–443, start of Peach Bottom Atomic Power Seabrook Station, Unit No. 1, PECO Energy Company, Public Service Station Unit No. 3, Cycle 13 operation. Rockingham County, New Hampshire Electric and Gas Company Delmarva Amendment No.: 233. Date of amendment request: March Power and Light Company, and Atlantic Facility Operating License No. DPR– 27, 1998, as supplemented by letter City Electric Company, Docket Nos. 50– 56: Amendment revised the Technical dated June 17, 1998. 277 and 50–278, Peach Bottom Atomic Specifications. Brief description of amendment: To Power Station, Unit Nos. 2 and 3, York Date of initial notice in Federal revise Technical Specification (TS) County, Pennsylvania Register: August 11, 1999 (64 FR 43777). 3.7.6.1, Control Room Emergency Date of application for amendments: The August 30, 1999, letter provided Makeup Air and Filtration, and TS March 29, 1999, as supplemented July additional information but did not 3.7.6.2, Control Room Air Conditioning, 21, 1999. change the initial proposed no to delete the restriction to suspend all Brief description of amendments: The significant hazards consideration operations involving positive reactivity amendments delete the surveillance determination or expand the changes during the plant conditions requirement (SR) associated only with amendment beyond the scope of the specified. the refuel platform fuel grapple fully initial notice. VerDate 12-OCT-99 19:45 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56542 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices The Commission’s related evaluation Amendment Nos.: 144 and 135 ‘‘Standby Liquid Control (SLC) System.’’ of the amendment is contained in a Facility Operating License Nos. NPF– The revision replaces ‘‘greater than the Safety Evaluation dated October 5, 1999. 2 and NPF–8: Amendments revise the Region B limits,’’ which could be No significant hazards consideration Technical Specifications. misleading, with ‘‘within the Region B comments received: No. Date of initial notice in Federal limits.’’ Local Public Document Room Register: January 27, 1999 (64 FR 4160). Date of issuance: September 24, 1999. location: Government Publications The Commission’s related evaluation Effective date: As of the date of Section, State Library of Pennsylvania, of the amendments is contained in a issuance and shall be implemented (Regional Depository) Education Safety Evaluation dated October 1, 1999. within 30 days from the date of Building, Walnut Street and No significant hazards consideration issuance. Commonwealth Avenue, Box 1601, comments received: No. Harrisburg, PA 17105. Local Public Document Room Amendment Nos.: Unit 1—217; Unit location: Houston-Love Memorial 2—158. Southern California Edison Company, et Library, 212 W. Burdeshaw Street, Post Facility Operating License Nos. DPR– al., Docket Nos. 50–361 and 50–362, Office Box 1369, Dothan, Alabama. 57 and NPF–5: Amendments revised the San Onofre Nuclear Generating Station, Technical Specifications. Units 2 and 3, San Diego County, Southern Nuclear Operating Company, Date of initial notice in Federal California Inc., et al., Docket Nos. 50–424 and 50– 425, Vogtle Electric Generating Plant, Register: August 25, 1999 (64 FR 46449). Date of application for amendments: Units 1 and 2, Burke County, Georgia The Commission’s related evaluation of September 10, 1998 (PCN–496), as Date of application for amendments: the amendments is contained in a Safety supplemented July 19, 1999. April 13, 1999, as supplemented by Evaluation dated September 24, 1999. Brief description of amendments: The letter dated August 26, 1999. No significant hazards consideration amendments delete Technical Brief description of amendments: The comments received: No. Specification 3.6.7 relating to hydrogen amendments revise Technical recombiners. Local Public Document Room Specifications (TS) to update Limiting location: Appling County Public Date of issuance: October 7, 1999. Condition for Operation (LCO) 3.0.4 and Effective date: October 7, 1999, to be Library, 301 City Hall Drive, Baxley, Surveillance Requirements (SR) 3.0.4 in implemented within 30 days of Georgia. the existing TS to be consistent with the issuance. versions of the LCO 3.0.4 and SR 3.0.4 Tennessee Valley Authority, Docket No. Amendment Nos.: Unit 2—159; Unit as they appear in Revision 1 to NUREG– 50–296, Browns Ferry Nuclear Plant, 3—150. 1431. The proposed change also adds Unit 3, Limestone County, Alabama Facility Operating License Nos. NPF– the words ‘‘or that are part of a 10 and NPF–15: The amendments Date of application for amendment: shutdown of the unit,’’ to LCO 3.0.4 to revised the Technical Specifications. July 28, 1999 (TS–398). allow reactor shutdowns that are not Date of initial notice in Federal Brief description of amendment: The necessarily required by other TS Register: August 11, 1999 (64 FR 43778). Required Actions. amendment revises the Technical The Commission’s related evaluation Date of issuance: September 30, 1999. Specifications (TS) to implement of the amendments is contained in a Effective date: As of the date of operability and surveillance Safety Evaluation dated October 7, 1999. issuance and shall be implemented requirements for the previously- No significant hazards consideration within 30 days from the date of installed Oscillation Power Range comments received: No. issuance. Monitor trip function. Local Public Document Room Amendment Nos.: Unit 1—108; Unit Date of issuance: September 27, 1999. location: Main Library, University of 2—86. Effective date: As of the date of California, P.O. Box 19557, Irvine, Facility Operating License Nos. NPF– California 92713. issuance, to be implemented at the end 68 and NPF–81: Amendments revised of the Cycle 9 outage. the Technical Specifications. Southern Nuclear Operating Company, Amendment No.: 221. Inc., Docket Nos. 50–348 and 50–364, Date of initial notice in Federal Register: August 11, 1999 (64 FR 43779). Facility Operating License No. DPR– Joseph M. Farley Nuclear Plant, Units 1 68: Amendment revises the TS. and 2, Houston County, Alabama The Commission’s related evaluation of the amendments is contained in a Safety Date of initial notice in Federal Date of amendments request: Evaluation dated September 30, 1999. Register: August 25, 1999 (64 FR 46450). November 6, 1998. No significant hazards consideration The Commission’s related evaluation of Brief Description of amendments: The comments received: No. the amendment is contained in a Safety amendments revise the TS nuclear Local Public Document Room Evaluation dated September 27, 1999. instrumentation system (NIS) location: Burke County Library, 412 No significant hazards consideration surveillance requirements. The revised Fourth Street, Waynesboro, Georgia. comments received: No. TS changes require Southern Nuclear Company to adjust the NIS power range Southern Nuclear Operating Company, Local Public Document Room channels only when calorimetric- Inc., Georgia Power Company, location: Athens Public Library, South calculated power is greater than the Oglethorpe Power Corporation, Street, Athens, Alabama 35611. Municipal Electric Authority of Georgia, power range indicated power by more Tennessee Valley Authority, Docket City of Dalton, Georgia, Docket Nos. 50– than +2 percent rated thermal power. Nos. 50–327 and 50–328, Sequoyah 321 and 50–366, Edwin I. Hatch Nuclear The proposed TS changes are for both Nuclear Plant, Units 1 and 2, Hamilton Plant, Units 1 and 2, Appling County, the current TS and the improved TS. County, Tennessee Date of issuance: October 1, 1999. Georgia Effective date: As of the date of Date of application for amendments: Date of application for amendments: issuance and shall be implemented July 29, 1999. February 26, 1999 (TS 98–08). within 30 days from the date of Brief description of amendments: The Brief description of amendments: The issuance. amendments revise TS Section 3.1.7, amendments relocate Sequoyah Nuclear VerDate 12-OCT-99 19:05 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56543 Plant Technical Specification (TS) 3.7.6, steam line isolation valves. Specifically, committee to Annamarie Gildea, U.S. ‘‘Flood Protection Plan,’’ and its a total allowable leakage rate for the Postal Service Headquarters, 475 associated bases from the TS to the sum of the four main steam lines is L’Enfant Plaza, SW, Room 7142, Technical Requirements Manual. Future established that is equal to four times Washington, DC 20260. Committee changes to the Flood Protection Plan the current allowable individual main documents will be available for public will be processed in accordance with 10 steam line isolation valve leakage rate. inspection and copying between 9 a.m. CFR 50.59. The allowable individual main steam and 4 p.m. weekdays at the address Date of issuance: October 6, 1999. line isolation valve leakage rate is above. Entry into U.S. Postal Service Effective date: As of the date of revised to be one half of the allowable Headquarters is controlled. Persons issuance to be implemented no later total leakage rate. wishing to attend the November 3–4 than 45 days after issuance. Date of Issuance: October 1, 1999. meeting must send a fax to Annamarie Amendment Nos.: 247 and 238. Effective date: 10/01/99, and shall be Gildea at (202) 268–5293 no later than Facility Operating License Nos. DPR– implemented within 30 days. October 29, 1999 with the person’s 77 and DPR–79: Amendments revise the Amendment No.: 178 name and organizational affiliation, if TS. Facility Operating License No. DPR– any. Persons wishing to attend the Date of initial notice in Federal 28: Amendment revised the Technical December 14–15 meeting must fax the Register: March 24, 1999 (64 FR 14286) Specifications. The Commission’s related evaluation of Date of initial notice in Federal same information to the same name and the amendment is contained in a Safety Register: July 28, 1999 (64 FR 40909). number no later than December 10, Evaluation dated October 6, 1999. The Commission’s related evaluation 1999. For additional information No significant hazards consideration of this amendment is contained in a regarding the USPS STD 7A Consensus comments received: No. Safety Evaluation dated October 1, 1999. Committee, see Federal Register Vol 64, Local Public Document Room No significant hazards consideration No. 158, p. 44681 (August 17, 1999). location: Chattanooga-Hamilton County comments received: No Neva R. Watson, Library, 1001 Broad Street, Chattanooga, Local Public Document Room Alternate Certifying Officer, Legislative. Tennessee 37402. location: Brooks Memorial Library, 224 [FR Doc. 99–27344 Filed 10–19–99; 8:45 am] Main Street, Brattleboro, VT 05301. Vermont Yankee Nuclear Power BILLING CODE 7710±12±P Corporation, Docket No. 50–271, For the Nuclear Regulatory Commission. Vermont Yankee Nuclear Power Station, Dated at Rockville, Maryland, this 13th day Vernon, Vermont of October, 1999. John A. Zwolinski, SECURITIES AND EXCHANGE Date of application for amendment: Director, Division of Licensing Project COMMISSION July 20, 1999, as supplemented August Management, Office of Nuclear Reactor 13, 1999. Regulation. Brief description of amendment: The [Release No. 34±42002; File No. SR±OPRA± [FR Doc. 99–27210 Filed 10–19–99; 8:45 am] amendment modifies the operability 99±1] requirements for the high pressure BILLING CODE 7590±01±P Options Price Reporting Authority; cooling systems—High Pressure Coolant Notice of Filing of Amendment to Injection (HPCI), Reactor Core Isolation POSTAL SERVICE OPRA Plan Adopting a Participation Cooling (RCIC), and Automatic Fee Payable by Each New Party to the Depressurization System (ADS)—and Notice of Meeting Plan the safety and relief valves, and adds a time limitation for conducting AGENCY: Postal Service. October 13, 1999. operability testing of HPCI and RCIC. ACTION: Notice of meeting. Date of Issuance: October 1, 1999. Pursuant to Rule 11Aa3–2 under the Effective date: As of the date of SUMMARY: The Postal Service will hold Securities Exchange Act of 1934 issuance, and shall be implemented further meetings of a Consensus (‘‘Exchange Act’’),1 notice is hereby within 30 days. Committee to develop recommendations given that on August 16, 1999, the Amendment No.: 177 for revision of USPS STD 7A, which Options Price Reporting Authority Facility Operating License No. DPR– governs the design of curbside (‘‘OPRA’’) 2 submitted to the Securities 28: Amendment revised the Technical mailboxes. The committee will develop and Exchange Commission (‘‘SEC’’ or Specifications. and adopt its recommendations through ‘‘Commission’’) an amendment to the Date of initial notice in Federal a consensus process. The committee Plan for Reporting of Consolidated Register: August 31, 1999 (64 FR 47537) will consist of persons who represent Options Last Sale Reports and The Commission’s related evaluation the interests affected by the proposed Quotation Information (‘‘Plan’’). The of this amendment is contained in a rule, including mailbox manufacturers, amendment adds provisions applicable Safety Evaluation dated October 1, 1999. mailbox accessory manufacturers, and to a participation fee payable by each No significant hazards consideration postal customers. comments received: No MEETING DATES: The second and third 1 17 CFR 240.11Aa3–2. Local Public Document Room committee meetings are tentatively 2 OPRA is a National Market System Plan location: Brooks Memorial Library, 224 scheduled for November 3–4, 1999 and approved by the Commission pursuant to Section Main Street, Brattleboro, VT 05301. 11A of the Exchange Act and Rule 11Aa3–2 December 14–15, 1999. thereunder. See Securities Exchange Act Release Vermont Yankee Nuclear Power MEETING PLACE: U.S. Postal Service No. 17638 (Mar. 18, 1981). Corporation, Docket No. 50–271, Headquarters, 475 L’Enfant Plaza, SW, The Plan provides for the collection and Vermont Yankee Nuclear Washington, DC 20260. dissemination of last sale and quotation information on options that are traded on the member Power Station, Vernon, Vermont FOR FURTHER INFORMATION CONTACT: exchanges. The five exchanges which agreed to the Date of application for amendment: Annamarie Gildea, (202) 268–3558. OPRA Plan are the American Stock Exchange June 29, 1999 Brief description of SUPPLEMENTARY INFORMATION: Mail (‘‘AMEX’’); the Chicago Board Options Exchange (‘‘CBOE’’); the New York Stock Exchange (‘‘NYSE’’); amendment: The amendment revises the comments and all other the Pacific Exchange (‘‘PCX’’); and the Philadelphia leak rate requirements for the main communications regarding the Stock Exchange (‘‘Phlx’’). VerDate 12-OCT-99 19:37 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56544 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices new party to the Plan and codifies what should be the participation fee for and entry-cost factors as reasonably may procedures applicable to the admission new parties and amending the Plan at a be included in an assessment of the of new parties to the Plan. The later date to reflect such a fee. In the value of participation. The language Commission is publishing this notice to absence of any applications from new proposed to be included in the OPRA solicit comments from interested participants until recently, OPRA has Plan in this respect is virtually identical persons on the proposed Plan not focused on this issue until now. to language currently included in the amendment. In response to the application recently CTA and CQ Plans, as referenced above. received from the International Once the Plan is amended as I. Description and Purpose of the Securities Exchange (‘‘ISE’’) and in proposed herein, OPRA anticipates Amendment anticipation of the receipt of additional discussing directly with each applicant Currently, the OPRA Plan provides applications from other new exchanges, how the enumerated factors should that any national securities exchange or OPRA has now considered the question apply to a determination of the amount registered securities association whose that was left open when the original of the participation fee to be paid by rules governing the trading of participation fee provisions were that applicant, in an effort to reach standardized options have been removed from the Plan. Because there agreement as to the amount of the fee. approved by the Commission may are so many factors that may be relevant If an applicant does not agree with the become a party to the Plan, provided it to a determination of the amount to be amount of the participation fee agrees to conform to the terms and paid by an exchange seeking to be a proposed to be charged by OPRA, OPRA conditions of the Plan. However, the party to the Plan, OPRA has concluded will provide notice to the Commission Plan is silent concerning procedural that instead of requiring the same fixed of the failure to agree, and aspects of the application process, and amount to be paid by every applicant acknowledges that the subject of the it is likewise silent concerning what, if regardless of the nature of its proposed amount of the participation fee would any, participation fee must be paid by options market, the Plan should provide be subject to review by the Commission, an exchange at the time it becomes a flexibility by setting forth a general pursuant to Section 11A(b)(5) of the party to the Plan. The purpose of the statement of the factors that may be Exchange Act.4 amendment is to incorporate in the Plan taken into account in determining the The proposed Plan amendments also certain application forms and amount of the fee. The actual amount of clarify what has been OPRA’s past procedures used to apply to become a the fee in each separate instance would practice by providing that a person party to the Plan and to obtain interim then be determined by the parties in proposing to operate an options market access to the OPRA system and to the discussion with the applicant under the may apply to become a party even OPRA Processor for planning and general oversight of the Commission. before the entity is registered as a testing purposes even before an This same approach is reflected in the national securities exchange or applicant becomes a party to the Plan. Plans of other registered securities registered securities association or The amendment also proposes to add to information processors, such as the before the options rules of an existing the OPRA Plan provisions for a one-time Consolidated Tape Association (‘‘CTA’’) exchange or association are approved by participation fee payable by each new and the consolidated Quotation system the Commission. Such an applicant may party to the Plan. (‘‘CQ’’), and it provides the flexibility also apply for limited access to OPRA OPRA believes it is appropriate to needed to allow all of the interested for planning and testing purposes by require new parties to the Plan to pay parties to reach agreement on the submitting a separate application for a one time participation fee, in amount of the participation fee within such access and by making a refundable recognition of the significant value to a 3 deposit in the amount of $100,000, to be new party of participation in OPRA. an appropriately structured process. Therefore, OPRA proposes to amend applied to payment of the agree-upon Absent such a participation fee, this the OPRA Plan to provide that each new participation fee when the applicant value would in effect be contributed to party to the Plan will pay to the other becomes a party or, if the application is the new party by the existing parties to parties a participation fee ‘‘that withdrawn, or if for any other reason the the Plan, who have been responsible for attributes an appropriate value to the applicant does not become a party, to be the development of OPRA’s systems and assets, both tangible and intangible, that refunded to the applicant after infrastructure. In fact, the OPRA Plan at reimbursing OPRA for any costs one time did include provisions that OPRA has created and will make available to the new party.’’ The Plan incurred by it or its processor in required all new parties to pay a one- processing the application and testing time participation fee based on a share will then list the factors that may be considered in arriving at this value, as with the applicant. The text of the of OPRA’s unamortized ‘‘start-up’’ cost proposed Plan amendment and the at the time of admission. However, follows: an independent valuation assigned to the grant of access; previous application forms proposed to be used during most of OPRA’s history, for these purposes are available at the unamortized start-up or developmental valuations approved by the parties; an assessment of costs already contributed principal offices of OPRA and at the costs have been at or close to zero, Commission. because these costs are generally by the existing parties to the creation expensed as they are incurred, and and continuation of OPRA facilities; the II. Implementation of the Plan those costs that were capitalized were new party’s reasonably anticipated Amendment amortized over a five year period. Thus demands on the OPRA system capacity; OPRA intends to make the proposed a participation fee based on an assessment of costs reasonably amendments to the OPRA Plan reflected unamortized start-up costs most of the expected to be incurred by the OPRA in this filing (i.e., the participation fee time was unrealistically low or even Processor in modifying the OPRA and the application forms) effective zero. Accordingly this provision was system and network to accommodate concurrently, immediately upon the eliminated from the Plan in 1995, when the new party; and such other historical approval of the amendment by the a number of other changes were made Commission, pursuant to Rule 11Aa3–2 3 See Section III(c) of the Second Restatement of to financial provisions of the Plan. At the CTA Plan as restated December 1995, and under the Exchange Act. As soon as the that time, OPRA anticipated formulating Section III(c) of the Restatement of the CQ Plan as a more appropriate way to determine restated December 1995. 4 17 CFR 240.11A(b)(5). VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56545 amendments are effective, OPRA Therefore, it is ordered, pursuant to that the proposed rule change be intends to commence discussions with Section 12(k) of the Securities Exchange approved on an accelerated basis and ISE concerning the amount of the Act of 1934, that trading in the above that it be implemented as a one-year participation fee. listed company is suspended for the pilot program. The text of the proposed rule change is as follows, with [brackets] III. Solicitation of Comments period form 9:30 a.m. EDT, October 18, 1999, through 11:59 p.m. EDT, on indicating words to be deleted and Interested persons are invited to October 29, 1999. italics indicating words to be added: submit written data, views, and arguments concerning the foregoing, By the Commission: Minimum Margins including whether the proposed Plan Jonathan G. Katz, * * * * * amendment is consistent with the Act. Secretary. Persons making written submissions [FR Doc. 99–27469 Filed 10–18–99; 12:11 Rule 462(d)(2)(H)(iv) should file six copies thereof with the pm] No margin need be required in respect Secretary, Securities and Exchange BILLING CODE 8010±01±M of a call index option contract carried Commission, 450 Fifth Street, N.W., in a short position where there is carried Washington, D.C. 20549–0609. Copies of for the same account a long position in the submission, all subsequent SECURITIES AND EXCHANGE Portfolio Depositary Receipts or Index amendments, and all written statements COMMISSION Fund Shares as specified in with respect to the proposed rule [Release No. 34±41999; File No. SR±Amex± Commentary .10 to this Rule, having a change that are filed with the 98±33] market value at least equal to the Commission, and all written aggregate current index value of the communications relating to the Self-Regulatory Organizations; Notice stocks underlying the index options proposed rule change between the of Filing of a Proposed Rule Change by contracts to be covered. Commission and any person, other than American Stock Exchange LLC No margin need be required in respect those withheld from the public in Regarding a Pilot Program Relating to of a put index option contract carried in accordance with the provisions of 5 Rule 462 (Minimum Margins) a short position where there is carried U.S.C. 552, will be available for Applicable to Portfolio Depositary for the same account a short position in inspection and copying in the Receipts and Index Fund Shares Portfolio Depositary Receipts or Index Commission’s Public Reference Room. Fund Shares as specified in Copies of the filing also will be available October 13, 1999. Commentary .10 to this Rule, having a Pursuant to Section 19(b)(1) of the market value at least equal to the at the principal offices of OPRA. All 1 submissions should refer to file number Securities Exchange Act of 1934 (‘‘Act), aggregate current index value of the SR–OPRA–99–1 and should be notice is hereby given that on stocks underlying the index options submitted by November 10, 1999. September 18, 1998, the American Stock contracts to be covered. Exchange LLC (‘‘Amex’’ or ‘‘Exchange’’) For the Commission, by the Division of The term ‘‘aggregate current index filed with the Securities and Exchange value’’ shall have the meaning set forth Market Regulation, pursuant to delegated Commission (‘‘SEC’’ or ‘‘Commission’’) authority.5 in Rule 900C. the proposed rule change described in In computing margin on an existing Margaret H. McFarland, Items I, II, and III below, which Items Deputy Secretary. position in Portfolio Depositary Receipts have been prepared by the Amex. Amex or Index Fund Shares covering a ‘‘short’’ [FR Doc. 99–27368 Filed 10–19–99; 8:45 am] amended the proposal twice on March put or ‘‘short’’ call, the market value of BILLING CODE 8010±01±M 4, 1999.2 The Commission is publishing such Portfolio Depositary Receipts or this notice to solicit comments on the Index Fund Shares to be used shall not proposed rule change, as amended, from be greater than the exercise price in the SECURITIES AND EXCHANGE interested persons. COMMISSION case of a call or less than the market I. Self-Regulatory Organization’s value of such Portfolio Depositary [File No. 500±1] Statement of the Terms of Substance of Receipts or Index Fund Shares in the case of a put and the required margin Las Vegas Entertainment Network Inc; the Proposed Rule Change shall be increased by an unrealized loss Order of Suspension of Trading The Amex proposes amending that on the short security position. portion of Exchange Rule 462 October 15, 1999. [(iv)] (v) No change other than addressing the required margin for renumbering. It appears to the Securities and certain short index options positions Exchange Commission that there is a covered by positions in Portfolio Commentary lack of current, adequate and accurate Depository Receipts (‘‘PDRs’’) or Index .10 Under the provisions of information concerning the securities of Fund Shares.3 The Exchange requests Las Vegas Entertainment Network, Inc., subparagraph (H)(iv) of paragraph (d)(2) a Delaware corporation. Questions have of this Rule regarding margin 1 15 U.S.C. 78s(b)(1). requirements applicable to positions in been raised about the adequacy and 2 The Commission received two amendments index options and Portfolio Depositary accuracy of publicly disseminated from the Exchange dated March 4, 1999. See Notice information concerning, among other of Filing of Amendment No. 1 to a Proposed Rule Receipts or Index Fund Shares: (1) things, an agreement to receive $190 Change by American Stock Exchange LLC Relating positions in Standard & Poor’s to Rule 462 (Minimum Margins) Applicable to Depositary Receipts (‘‘SPDRs’’) shall million in cash from two investors. Portfolio Depository Receipts and Index Fund The Commission is of the opinion that be cover for positions in S&P 500 shares (‘‘Amendment No. 1’’) and letter from the public interest and the protection of Michael Cavalier, Associate General Counsel, Legal Index options (SPX), S&P 100 Index investors require a suspension of trading & Regulatory Policy, Exchange to Michael A. in the securities of the above-listed Walinskas, Deputy Associate Director, Division of are a securities portfolio. Index Fund Shares are Market Regulation (‘‘Division’’), Commission shares in an open-end management investment company. (‘‘Amendment No. 2’’). company registered under the Investment Company 3 PDRs are shares in a unit investment trust Act of 1940, as amended, whose assets are a 5 17 CFR 200.30–3(a)(29). created under state or other local law, whose assets securities portfolio. VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56546 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices options (OEX) or Institutional Index In letters dated August 19, 1992, and 462(d)(2)(H)(iv) provides that no options (XII); (2) positions in MidCap January 14, 1993, to staffs of the SEC additional margin is required in respect SPDRsTM shall be cover for positions in and the Board of Governors of the of a call index option contract carried in S&P MidCap 400 Index TM options Federal Reserve System (‘‘Federal a short position where there is carried (MID); (3) positions in DIAMONDS TM Reserve’’), respectively, the Exchange for the same account a long position in shall be cover for positions in Dow Jones proposed certain margin treatment for PDRs or Index Fund Shares as specified Industrials options (DJX) or Major Standard & Poor’s Depositary Receipts in Commentary .10 that has a market Market Index options (XMI); and (4) based on the S&P 500 Index.7 The value at least equal to the aggregate positions in Nasdaq–100 SharesSM shall Exchange proposed that, with respect to current index value of the stocks be cover for positions in Nasdaq–100 positions that are hedged or offset, underlying the index options contracts Index options (NDX). where one leg of the position consists of to be covered. In addition, no margin is * * * * * SPDRs and the other leg is an Options required in respect of a put index Clearing Corporation-issued option on a options contract carried in a short II. Self-Regulatory Organization’s broad-based stock index with at least a position where there is carried for the Statement of the Purpose of, and 99% correlation with the S&P 500 same account a short position in PDRs Statutory Basis for, the Proposed Rule Index, such position be treated as the or Index Fund Shares as specified in Change equivalent of covered equity options. Commentary .10 that has a market value Specifically, the Exchange requested at least equal to the aggregate current In its filing with the Commission, the that no additional margin be required in Amex included statements concerning index value of the stocks underlying the respect of a short index call position index options contracts to be covered.10 the purpose of and basis for the when a long position in SPDRs is Proposed Commentary .10 to Rule 462 proposed rule change and discussed any carried for the same account, and in specifies the PDRs or Index Fund Shares comments it received on the proposed respect of a short index put position which qualify for margin treatment rule change. The text of these statements when a short position in SPDRs is under Rule 462(d)(2)(H)(iv), together may be examined at the places specified carried for the same account. The with the specific index options that in Item IV below. The Amex has Federal Reserve stated that the prepared summaries, set forth in such PDRs or Index Fund Shares can Exchange’s proposed margin 11 sections A, B, and C below, of the most requirements were compatible with offset or cover for margin purposes. significant aspects of such statements. then-current Regulation T.8 Thereafter, Proposed Commentary .10 specifies the Federal Reserve took a comparable that: (1) positions in Standard & Poor’s A. Self-Regulatory Organization’s Depositary Receipts (‘‘SPDRs’’) shall Statement of the Purpose of, and the position with respect to MidCap SPDRs,TM based on the S&P MidCap 400 be covered for positions in S&P 500 Statutory Basis for, the Proposed Rule Index options (SPX), S&P 100 Index Change Index TM.9 The Exchange proposes to incorporate options (OEX) or Institutional Index 1. Purpose the offsets and cover for short index options (XII); (2) positions in MidCap options positions to those described in SPDRsTM shall be covered for positions The filing proposes to amend Amex TM the Federal Reserve’s February 1993 in S&P MidCap 400 Index options Rule 462(d)(2)(H)(iv) and to adopt TM letter into Amex Rule 462, as well as to (MID); (3) positions in DIAMONDS Commentary .10 to Rule 462 to permit shall be cover for positions in Dow 4 add comparable treatment for positions PDRs and Index Fund Shares traded on in DJX, XMI and NDX options, as Jones Industrial options (DJX) or Major the Exchange under Amex Rules 1000 identified in proposed new Commentary Market Index options (XMI); and (4) and 1000A, respectively, to serve as .10 to Rule 462. Proposed Rule positions in Nasdaq-100 SharesSM shall cover for certain short index options be cover for positions in Nasdaq-100 positions. Specifically, proposed Rule 7 See letter dated August 19, 1992 from James M. Index options (NDX). The Exchange 462(d)(2)(H)(iv) would provide that no McNeil, Chief Examiner, Amex, to Sharon M. points out that these proposed offsets in additional margin is required in respect Lawson, Assistant Director, Division, SEC; letter Commentary .10 apply only to indexes of a call index option carried in a short dated January 14, 1993 from James M. McNeil, Chief Examiner, Amex, to Laura M. Homer, and PDRs or Index Fund Shares with a position where the same account is long Division of Supervision and Regulation, Federal high degree of correlation, both in PDRs or Index Fund Shares as specified Reserve. performance (return on investments) in proposed Commentary .10. Similarly, 8 See letter dated February 1, 1993 from Michael and in the collection of securities no additional margin would be required J. Schoenfeld, Senior Securities Regulation Analyst, Federal Reserve, to James M. McNeil, Chief underlying such indexes, PDRs and in respect of a short put index option Examiner, Amex. Index Fund shares. contract where the account has a short 9 The Amex represents that the Federal Reserve position in PDRs or Index Fund Shares orally confirmed this position by telephone call 10 Aggregate current index value’’ means the as specified in proposed Commentary between James M. McNeil, Amex and Michael ‘‘current index group value’’ multiplied by the .10. In either case, the PDR or Index Schoenfeld, Federal Reserve on May 1, 1995. In ‘‘index multiplier.’’ connection with the commencement of trading in The ‘‘current index group value’’ is $1.00 Fund Shares position would be required DIAMONDS SM Trust Units, the Amex also multiplied by the total of the current prices of all requested confirmation from the Federal Reserve to have a market value at least equal to stocks in an index after each stock’s current price that margin treatment of DIAMONDS would be the aggregate current index value, as is multiplied by a factor representing that stock’s comparable to that for SPDRs under Regulation T. 5 weight in the index. defined in Amex rule 900C, of stocks Instead of providing such confirmation, the Federal underlying the index options contracts Reserve, in its January 8, 1998 letter to the Amex The ‘‘index multiplier’’ is a number (determined to be covered.6 regarding application of Regulation T to when the PDR or Index Fund Share is created) that DIAMONDS noted that Section 220.18 of the trading level of the corresponding index (i.e., Regulation T, (the Supplement to Regulation T), the Dow at 9926.2) is multiplied by to reduce it to 4 ‘‘PDR’’ is a service mark of PDR Services LLC, amended effective June 1, 1997, provides that the an appropriate trading amount. For example, when a Delaware limited liability company whose sole margin requirements for options is ‘‘the amount or the Dow trades at 9926.2, a DIAMONDS share member is the American Stock Exchange LLC. other position’’ specified by the national securities trades at $99.26. Thus, the index multiplier is .01. 5 See infra note 10 defining aggregate current exchange that trades the option (for listed options). See Amex Rule 900C. index value. See letter from Scott Holz, Senior Attorney, Federal 11 The rule does not apply to margin with respect 6 Current subparagraph (iv) of Rule 462(d)(2)(H) Reserve, to James M. McNeil, Chief Examiner, to long or short positions in PDRs and Index Fund would be renumbered as subparagraph (v). Amex, dated January 8, 1998. Shares. VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56547 The Exchange believes it is including whether the proposal is (‘‘Commission’’), pursuant to Section appropriate for the index options consistent with the Act. Persons making 19(b)(1) of the Securities Exchange Act specified in proposed Commentary .10 written submissions should file six of 1934 (‘‘Act’’) 1 and Rule 19b–4 2 to be offset by the specified PDRs copies thereof with the Secretary, thereunder, a proposed rule change. In because the index options and PDRs are Securities and Exchange Commission, its proposal, the CBOE seeks to amend based on the same underlying securities, 450 Fifth Street, NW, Washington DC its rules to allow Retail Automatic or related to indexes whose underlying 20549–0609. Copies of the submission, Execution System (‘‘RAES’’) orders to securities include all securities all subsequent amendments, all written trade directly against orders in the underlying another index (i.e., S&P statements with respect to the proposed Exchange’s limit order book. The 100 Index and the S&P 500 Index) or rule change that are filed with the proposed rule change was published for indexes that have a high degree of Commission, and all written comment in the Federal Register on July overlap of securities underlying the communications relating to the 22, 1999.3 On August 11, 1999, the indexes and that have historically proposed rule change between the CBOE filed Amendment No. 1 to the demonstrated a very high correlation in Commission and any person, other than proposed rule change.4 On September price changes (i.e., the Institutional those that may be withheld from the 23, 1999, the CBOE filed Amendment Index and the S&P 500 Index; the public in accordance with the No. 2 to the proposed rule change.5 The Major Market Index and the Dow Jones provisions of 5 U.S.C. 552, will be Commission received one comment on Industrial Average). The Exchange will available for inspection and copying in the proposal.6 This order approves the propose additions to or deletions from the Commission’s Public Reference proposal, as amended. In addition, the Commentary .10 by a filing with the Room, 450 Fifth Street, NW, Commission is publishing this notice to Commission pursuant to Rule 19b–4. Washington, DC. Copies of such filing solicit comments on Amendments No. 1 will also be available for inspection and and No. 2 to the proposed rule change (1) Statutory Basis copying at the principal office of the and is simultaneously approving The Exchange believes that the Amex. Comments also may be Amendments No. 1 and No. 2 on an proposed rule change is consistent with submitted electronically at the following accelerated basis. E-mail address: [email protected]. Section 6(b) of the Act in general and II. Description of the Proposal furthers the objectives of Section 6(b) in File Number SR–AMEX–98–33 should particular in that it is designed to be included on the subject line if E-mail The Exchange is developing a system, promote just and equitable principles of is used to submit a comment letter. the Automated Book Priority system, trade, to remove impediments to and Electronically submitted comment that will allow an order entered into perfect the mechanism of a free and letters will be posted on the RAES to trade directly with an order on open market and, in general, to protect Commission’s Internet web site (http:// the Exchange’s customer limit order investors and the public interest. www.sec.gov). All submissions should book in those cases where the prevailing refer to File Number SR–AMEX–98–33 market bid or offer is equal to the best B. Self-Regulatory Organization’s and should be submitted by November bid or offer on the Exchange’s book.7 Statement on Burden on Competition 10, 1999. Currently, when a RAES order is The Exchange believes that the For the Commission, by the Division of 1 proposed rule change will impose no Market Regulation, pursuant to delegated 15 U.S.C. 78s(b)(1). 2 burden on competition. authority.12 17 CFR 240.19b–4. 3 See Securities Exchange Act Release No. 41621 C. Self-Regulatory Organization’s Margaret H. McFarland, (July 14, 1999), 64 FR 39546. Statement on Comments on the Deputy Secretary. 4 In Amendment No. 1, the CBOE makes [FR Doc. 99–27367 Filed 10–19–99; 8:45 am] technical, non-substantive changes to the proposal. Proposed Rule Change Received From The CBOE resubmitted the text of the Exchange Members, Participants or Others BILLING CODE 8010±01±M Rules to show the actual text of these rules as of the date the proposed rule change was submitted. No written comments were solicited See letter from Timothy Thompson, Director, or received with respect to the proposed SECURITIES AND EXCHANGE Regulatory Affairs, CBOE, to Michael Walinskas, rule change. COMMISSION Associate Director, Division of Market Regulation (‘‘Division’’), Commission, dated August 10, 1999 III. Date of Effectiveness of the [Release No. 34±41995; File No. SR±CBOE± (‘‘Amendment No. 1’’). Proposed Rule Change and Timing for 99±29] 5 In Amendment No. 2, the CBOE makes Commission Action additional technical, non-substantive changes to the Self-Regulatory Organizations; Order proposal. The CBOE resubmitted the proposed rule The Exchange requests that the text to reflect amendments to existing rule text from Approving Proposed Rule Change and Commission grant accelerated a separate filing (SR–CBOE–99–17) that was Notice of Filing and Order Granting approved by the Commission on August 23, 1999. effectiveness to the proposed rule Accelerated Approval to Amendments See Securities Exchange Act Release No. 41782, 64 change pursuant to Section 19(b) of the FR 47881 (Sept. 1, 1999). In addition, the CBOE No. 1 and No. 2 to Proposed Rule Act. Amex represents that the proposed clarifies that portions of rule text approved by SR– Change by the Chicago Board Options rule is similar in effect to the position CBOE–99–17 will be removed by this proposed rule Exchange, Inc. To Allow RAES Orders change. See letter from Timothy Thompson, taken previously by the Federal Reserve To Trade Against Orders in the Director, Regulatory Affairs, CBOE, to Ken Rosen, in correspondence with Amex, as cited Attorney, Division, Commission, dated September Exchange's Limit Order Book above, in connection with trading of 22, 1999 (‘‘Amendment No. 2’’). 6 PDRs on the Exchange. Amex further October 8, 1999. In approving the proposal, the Commission has requests that the proposed rule be considered the commenter’s support of the I. Introduction proposed rule change. See letter from Gerald D. implemented as a one-year pilot Putnam, Chief Executive Officer, Archipelago, program. On June 23, 1999, the Chicago Board L.L.C., to Jonathan G. Katz, Secretary, Commission, Options Exchange, Inc. (‘‘CBOE’’ or dated August 13, 1999. IV. Solicitation of Comments ‘‘Exchange’’) submitted to the Securities 7 In the event that the order in the book is for a smaller number of contracts than the RAES order, Interested persons are invited to and Exchange Commission the balance of the RAES order will be assigned to submit written data, views and participating market-makers at the same price at arguments concerning the foregoing, 12 17 CFR 200.30–3(a)(12). which the rest of the order was executed. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56548 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices entered into the Exchange’s Order Act.10 In particular, the Commission text approved by SR–CBOE–99–17 will Routing System at a time when the finds the proposal is consistent with be removed by this proposed rule prevailing market bid or offer is equal to Section 6(b)(5) 11 of the Act. Section change. Therefore, the amendments did the best bid or offer on the Exchange’s 6(b)(5) requires, among other things, not substantively alter the proposal. book, the order is routed electronically that the rules of an exchange be IV. Conclusion (i.e., ‘‘kicked out’’) to a Floor Broker’s designed to promote just and equitable terminal or work station in the crowd principles of trade and to protect It is therefore ordered, pursuant to subject to the volume parameters of investors and the public interest. Section 19(b)(2) of the Act,13 that the each firm. This allows for manual The Commission believes that the proposed rule change (SR–CBOE–99– representation of the order in the crowd proposed rule change will benefit 29), as amended, is approved. and generally prevents orders from investors by allowing RAES orders to For the Commission, by the Division of trading through the book.8 The orders trade against orders in the Exchange’s Market Regulation, pursuant to delegated are kicked out because CBOE Rule 6.45 limit order book. Currently, when a authority.14 provides that bids or offers displayed on RAES order is entered at a time when Margaret H. McFarland, the customer limit order book are the prevailing market bid or offer is Deputy Secretary. entitled to priority over other bids or equal to the best bid or offer of the [FR Doc. 99–27371 Filed 10–19–99; 8:45 am] offers at the same price. Exchange’s limit order book, the order is BILLING CODE 8010±01±M To implement the Automated Book kicked out into the crowd for manual Priority system, the CBOE proposes to execution. Although this generally amend paragraphs (b) and (c) of CBOE prevents RAES orders from trading SECURITIES AND EXCHANGE Rule 6.8, ‘‘RAES Operations in Equity through the book, when a RAES order COMMISSION is kicked out to the crowd, it may Options,’’ to provide for RAES orders to become subject to market risk, which [Release No. 34±42004; File No. SR±CHX± trade directly against orders entered in 99±16] can be significant in a fast moving the Exchange’s customer limit order market. Moreover, the kick out feature is book. The Exchange also proposes to Self-Regulatory Organizations; Notice not employed for IBM, DJX, and OEX delete Interpretation .04 of CBOE Rule of Filing of Proposed Rule Change and options, where RAES orders can trade 6.8 which concerns how orders that Amendment Nos. 1 and 2 and Order through the book. The Commission have been kicked out pursuant to the Granting Accelerated Approval of finds that the implementation of this current paragraph (c) should be Proposed Rules Change and new system will provide for more handled. Amendment Nos. 1 and 2 by the efficient execution of both RAES and Chicago Stock Exchange Relating to The CBOE believes that the booked orders. Investors should benefit Automated Book Priority system will the Implementation of an Extended from more efficient executions, while Hours Trading Session both prevent the RAES order from the priority of booked orders is becoming subject to market risk and maintained. October 13, 1999. preserve the priority of the booked Linking the Exchange’s limit order Pursuant to Section 19(b)(1) of the order. Thus, the proposed rule change book to the RAES system is important Securities Exchange Act of 1934 will benefit customers using the RAES to ensure proper quality of execution of (‘‘Act’’),1 and Rule 19b–4 thereunder,2 system as well as those whose orders are RAES orders and booked limit orders. notice is hereby given that on in the Exchange’s book because both Implementation is particularly September 14, 1999, the Chicago Stock categories of orders will be executed important for limit orders on IBM, DJX, Exchange, Incorporated (‘‘CHX’’ or more quickly than they would have and OEX options, where booked orders ‘‘Exchange’’) filed with the Securities been executed otherwise. may receive delayed or no execution. and Exchange Commission (‘‘SEC’’ or The Exchange anticipates that the The Commission expects that the ‘‘Commission’’) the proposed rule Automated Book Priority system will be Exchange will take all reasonable steps change as described in Items I and II ready to be implemented by October 31, necessary to implement the proposal by below, which Items have been prepared 1999.9 The Exchange will provide its October 31, 1999. by the CHX. On October 7, 1999, the membership with prior notice by means The Commission finds good cause for CHX submitted Amendment No. 1 to the of a Regulatory Circular informing them approving Amendments No. 1 and No. proposed rule change.3 On October 8, of the date the system and the rule 2 prior to the thirtieth day after the date 1999, the CHX filed Amendment No. 2 change will be implemented. of publication of notice thereof in the to the proposed rule change.4 The Federal Register. In Amendment No. 1, III. Discussion the CBOE merely clarified the text of the 13 15 U.S.C. 78s(b)(2). After careful review, the Commission Exchange Rules to show the actual text 14 17 CFR 200.30–3(a)(12). finds that the proposed rule change is of these rules as of the date the 1 15 U.S.C. 78s(b)(1). 2 consistent with the requirements of the proposed rule change was submitted. In 17 CFR 240.19b–4. Amendment No. 2, the CBOE 3 Letter to Katherine A. England, Assistant resubmitted the text of the Exchange Director, Division of Market Regulation 8 Currently, RAES orders in options on IBM, the (‘‘Division’’), Commission, from Paul B. O’Kelly, Dow Jones Industrial Average (DJX), and the Rules to show the text of these rules as Executive Vice President, Market Regulation and Standard & Poor’s 100 Stock Index (OEX) may be amended by filing (SR–CBOE–99–17) Legal, CHX, dated October 5, 1999 (‘‘Amendment executed on RAES even where the prevailing that was approved by the Commission No. 1’’). In Amendment No. 1, the CHX proposes market bid or offer equals the best bid or offer on on August 23, 1999.12 In addition, the to amend the initial filing to request that the the Exchange’s book. Upon the implementation of Commission approve its proposed extended hours the Automated Book Priority system, RAES orders CBOE explains that portions of the rule trading session on a pilot basis through March 1, in these option classes, like all other option classes, 2000. will trade against orders in the book in these 10 In addition, pursuant to Section 3(f) of the Act, 4 Letter to Katherine A. England, Assistant circumstances. the Commission has considered the proposed rule’s Director, Division, Commission, from Paul B. 9 Telephone call between Timothy Thompson, impact on efficiency, competition, and capital O’Kelly, Executive Vice President, Market Director, Regulatory Affairs, CBOE, and Joseph P. formation. 15 U.S.C. 78c(f). Regulation and Legal, CHX, dated October 7, 1999 Corcoran, Attorney, Division, Commission, on 11 15 U.S.C. 78f(b)(5). (‘‘Amendment No. 2’’). In Amendment No. 2, the August 25, 1999. 12 See supra note 5. CHX proposes that, although effective upon VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56549 Commission is publishing this notice to shortened E-Session will be conducted, via MAX, to the specialist’s limit order solicit comments on the proposed rule on those days identified by the Board of book; except that Floor Brokers (1) may change from interested persons, and to Governors, in its discretion, from time to route limit orders via MAX to the grant accelerated approval to the time. So long as the rules in this Article specialist’s limit order book or, where proposed rule change and Amendment remain in effect, the Secondary Trading permissible, transmit them to another Nos. 1 and 2 on a pilot basis through Session shall be discontinued. market; or (2) may, after receiving a March 1, 2000. limit order to buy and a limit order to Eligible Securities I. Self-Regulatory Organization’s sell an equivalent amount of the same Rule 2. Securities eligible for trading Statement of the Terms of Substance of security (a) execute the orders at the during the E-Session (‘‘E-Session the Proposed Rule Change. specialist’s post pursuant to Article XX, Eligible Securities’’) shall be selected, Rule 23 or (b) route the orders via MAX The Exchange proposes to add new from time to time, by the Committee on to the specialist’s limit order book. Article XXA to the Exchange’s Rules to Floor Procedure from the securities NASDAQ System market makers, acting implement an extended hours trading eligible for trading during the PTS. in their capacities as market makers, session (the ‘‘E-SessionTM’’) on a pilot E-Orders shall have direct telephone access to the basis through March 1, 2000. The specialist post in each NASDAQ/NM Exchange also proposes to amend the Rule 3. Orders eligible to be entered Security in which that market maker is following rules to reflect changes to in the E-Session on a given day (‘‘E- registered as market maker to transmit trading times and to various procedures Orders’’) shall consist of those orders orders for execution on the Exchange. that arise because of the E-Session: received by the Exchange on that day Article IX, Rule 10(b); Article XX, Rules that are designated as E-Orders in the Specialist’s Books 1, 2 and 37; Article XXI, Rule 1; Article manner specified by the Exchange. All Rule 9. The book of limit orders XXXI, Rules 6 and 9; and Article E-Orders transmitted via MAX shall entered for execution in the E-Session XXXIV. Below is the text of the include the account type designators in shall be maintained by the specialist in proposed rule change. Proposed new Article XX, Rule 37(b)(9). the E-Session and shall be separate from language is italicized; proposed the specialist’s books of limit orders Unexecuted Orders deletions are in brackets; maintained for that same security in the Rule 4. All E-Orders for E-Session Article XXA—Trading Rules and PTS and the PPTS. Eligible Securities remaining Procedures Applicable To Equity unexecuted at the end of an E-Session Trading Halts Due to Extraordinary Trading During the Extended Trading shall automatically be canceled. Market Volatility Session Rule 10. If trading in all securities on Specialist Firms Introduction the Exchange is halted during the PTS The trading rules and procedures in Rule 5. The specialist firm for a pursuant to Article IX, Rule 10A, and this Article shall apply to trading security traded in the E-Session shall be such halt is still in effect at the close of conducted on the Exchange during the the specialist firm assigned to that same the PTS, the Exchange shall cancel the Extended Trading Session (the ‘‘E- security in the PTS, unless that E-Session scheduled for that day. Two Session’’). Unless otherwise defined in specialist firm, with the approval of the floor officials may halt trading in any or this Article, capitalized terms used in Committee on Specialist Assignment all securities during an E-Session if they this Article shall have the same and Evaluation, has transferred the determine that such action is necessary meanings given them elsewhere in the assignment to another specialist firm for to preserve a fair and orderly market. Rules. Except where the context requires purposes of the E-Session only. A Once trading in a given security is otherwise, the provisions of the specialist firm assigned to one or more halted, two floor officials may reopen Constitution and all other Rules and securities in the E-Session may cease trading in the halted security if they policies of the Board of Governors, acting in that capacity only with the determine that a fair and orderly market including those that apply to trading permission of the Committee on shall ensue from such action. Specialist Assignment and Evaluation. conducted during the Primary Trading Intermarket Trading System Session (the ‘‘PTS’’), shall continue to Co-Specialists Rule 11. The Intermarket Trading be applicable to trading during the E- System (‘‘ITS’’) shall be in operation any Session. If any rule in this Article is Rule 6. A specialist firm may time during the E-Session when another inconsistent with any other provisions designate any qualified co-specialists in participant market is open for trading. of the Rules, the provisions of this its assigned securities for the E-Session, whether or not they are co-specialists for Article shall control and shall be Customer Disclosure those same securities during the PTS. A deemed to supplement or amend the Rule 12. No member or member inconsistent provisions. co-specialist must maintain a continuous, two-sided market in each organization may accept an order from Hours of Trading assigned security. a non-member for execution in the E- Session without first disclosing to that Rule 1. The E-Session shall be Preopening Orders non-member that: (1) orders for E- conducted on the Floor of the Exchange, Session Eligible Securities are eligible commencing immediately following the Rule 7. Preopening orders in all E- only for a single E-Session and, if not close of the Post Primary Trading Session Eligible Securities will be executed during that E-Session, shall Session (the ‘‘PPTS’’) and ending at 5:30 eligible for a single price opening. automatically be canceled; (2) P.M. Central time, Monday through Manner of Making Bids and Offers unconditional limit orders are the only Friday; provided, however, that no E- Rule 8. The only orders eligible to be orders that are eligible for execution in Session will be conducted, or a entered during the E-Session are the E-Session; (3) there is likely to be Commission approval, its proposed extended unconditional limit orders for E-Session less liquidity during trading that occurs trading session will not be operational until October Eligible Securities. These orders shall be once normal trading hours have ended 29, 1999. electronically and directly transmitted, and, as a consequence, there may be VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56550 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices greater fluctuations in securities prices; 3:30 P.M. to 5 P.M., Central time, Article XXI—Exchange of Contracts, and (4) distinct systems and facilities Monday through Friday, will be Tickets and Comparisons Reporting of trade securities after normal trading discontinued. [The Floor of the Transactions hours have ended and, as a Exchange shall be closed during the Rule 1. The Exchange shall report all consequence, at any particular time, Secondary Trading Session.] transactions executed on the Floor quotations and transaction prices for a In the event of a crisis, the chairman during the Primary Trading Session, security may vary among those systems. or the vice-chairman of the Board of Post Primary Trading Session, the E- Article IX—Trading Rules Governors or the president may, with Session or , when it is in operation, * * * * * the prior approval of a governor from a through the Portfolio Trading System. It member firm and a governor from the shall be the duty of every member to Business Days and Hours of Trading floor, suspend trading at any time advise the Exchange of each of his * * * * * during a session. transactions as promptly as possible. Rule 10(b) The Exchange will be Article XX—Regular Trading Sessions Article XXXI—Odd Lots and Odd-Lot open for business for three trading Dealers, Dual System sessions during each business day. Application The first trading session (the ‘‘Primary * * * * * Trading Session’’) will be conducted on Rule 1. These Rules shall apply to all Exchange Contracts made on the Dealer Required To Purchase All Odd the floor of the Exchange (i) during the Lots Offered same hours the security is traded on its Exchange during the Primary Trading primary market, if the Exchange is not Session, [and] the Post Primary Trading Rule 6. In any security in which he or the primary market for such security, Session and the E-Session and, to the it is registered as such, an odd-lot dealer provided, however, if the primary extent determined by the Exchange to be shall be required, during the Primary market for such security is the Pacific applicable, to Exchange Contracts not Trading Session and the Post Primary Stock Exchange, the Primary Trading made on the Exchange. Trading Session, to purchase all odd Session for that security shall end no * * * * * lots offered him or it by any member or later than 3 P.M. [p.m.] Central time, or member organization of the Exchange (ii) from 8:30 A.M. to 3 P.M. Central Hours of Floor Dealings and he or it shall be required to sell to time, Monday through Friday, if the any member or member organization of Rule 2. Except as provided in Article Exchange is the primary market for such the Exchange any odd lots bid for by XX, no member or member organization security. Notwithstanding the foregoing, such member or member organization. trading in the Chicago Basket shall be shall make any bid, offer or transaction upon the Floor of the Exchange, issue a Execution of Odd-Lot Orders During the conducted on the floor of the Exchange Primary Trading Session from 8:30 A.M. to 3:15 P.M., Central commitment to trade through ITS from time, Monday through Friday. the Floor, or send an order in a Nasdaq/ Rule 9.(a) Exclusive Issues. * ** The next trading session (the ‘‘Post NM Security for execution via telephone * * * * * Primary Trading Session’’) will be to a NASDAQ System market maker other than during the Primary Trading Execution of Odd-Lot Orders During the conducted on the floor of the Exchange E-Session for orders and securities designated as Session, [or] the Post Primary Trading eligible for the Post Primary Trading Session or the E-Session, except that a Rule 9a. During the E-Session, odd lot Session, pursuant to Article XX, Rule specialist may issue and receive pre- orders shall be handled according to the 37. The Post Primary Trading Session opening notifications and pre-opening requirements of Article XXA, Rule 8. shall be one-half hour after the close of responses, pursuant to the provisions of Article XXXIV—Registered Market regular trading on the primary market. the Plan relating to the Pre-Opening Makers—Equity Floor In the event that trading on the Application of the System, before the Rule 1. A registered market maker Exchange is halted during the Primary official opening of business of the shall only participate in transactions, Trading Session pursuant to Article XX, Exchange and loans of money or while on the trading floor, during the Rule 10A, and such halt is still in effect securities may be made after those Primary Trading Session and Post at the close of a Primary Trading hours. Session, the Exchange will cancel the Primary Trading Session. A registered Post Primary Trading Session scheduled * * * * * market maker shall effect all of his for that day. Guaranteed Execution System and transactions in securities traded on the Exchange so that they constitute a The last session the ‘‘E-Session’’) shall Midwest Automated Execution System be conducted on the floor of the course of dealings reasonably calculated Exchange, commencing immediately Rule 37.(a) Guaranteed Executions. to contribute to the maintenance of a following the close of the Post Primary The Exchange’s Guaranteed Execution fair and orderly market. No registered Trading Session and ending at 5:30 System (the BEST System) shall be market maker shall enter into P.M., Central time, Monday through available, during the Primary Trading transactions or make bids or offers that Friday; provided, however, that no E- Session and the Post Primary Trading are inconsistent with such a course of Session will be conducted, or a Session, to Exchange member firms and, dealings. shortened E-Session will be conducted, where applicable, to members of a * * * * * on those days identified by the Board of participating exchange who send orders II. Self-Regulatory Organizations’s Governors, in its discretion, from time to to the Floor through a linkage pursuant Statement of the Purpose of, and time. to Rule 39 of this Article, in all issues So long as the E-Session is being held, Statutory Basis for, the Proposed Rule in the specialist system which are [(]the [‘‘]Secondary Trading Session,[’’)] Change traded in the Dual Trading System and which was [will be] conducted through In its filing with the Commission, the the Portfolio Trading System, pursuant NASDAQ/NM Securities. CHX included statements concerning to the provisions of Article XXXV from * * * * * the purpose of and basis for the VerDate 12-OCT-99 17:39 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56551 proposed rule change and discussed any During the E-Session, in most cases, primary market likely will not be comments it received regarding the limit orders must be electronically and immediately available during the E- proposed rule change. The text of these directly transmitted, via the MAXTM Session. The second change required by statements may be examined at the electronic order routing system, to the the E-Session relates to the execution of places specified in Item III below. The specialist’s limit order book.6 Floor odd-lot orders. Current CHX rules CHX has prepared summaries, set forth brokers may route limit orders to the require odd-lot dealers to execute all in Sections A, B, and C below, of the specialist’s limit order book via MAX or odd-lot orders from members and most significant aspects of such may transmit the orders to another member organizations and require statements. market. In addition, a floor broker may executive of all odd-lot orders (from route orders to buy and sell equivalent members and others) at certain prices A. Self-Regulatory Organization’s quantities of the same security eligible keyed to transactions on the primary Statement of the Purpose of, and to be executed at the same price through market. Like the rules relating to the Statutory Basis for, the Proposed Rule MAX to the specialist’s limit order book Best System, these rules will apply Change or may execute those orders as a during the E-Session because of the 1. Purpose crossing transaction at the specialist’s likely absence of a primary market post in accordance with existing similar to the one that exists during The Exchange is proposing to add Exchange rules. new Article XXA and to amend several normal trading hours. Finally, current Expect as described in Article XXA or Exchange rules permit market makers to related rules, as detailed above, to in the rules amended as part of this implement an extended hours trading operate during the primary trading submission, execution, reporting, and session. Because market makers will not session. According to the Exchange, clearance and settlement of transactions market participants and CHX members have access to MAX terminals, and that occur during the E-Session will therefore cannot route order to the are demanding that the Exchange begin follow the procedures currently in place trading in hours that extend beyond the specialists’ limit order books during the for those activities in the Exchange’s E-Session, market makers will not current trading day. The Exchange primary trading session.7 Among other believes that after-hours trading may participate in the E-Session from other things, the National Securities Clearing trading floor. The amendments to well become a permanent feature of the Corporation (‘‘NSCC’’) will clear the U.S. securities market and believes that Article XX, Rule 37 (relating to the Best transaction that take place during this System), Article XXXI, Rules 6 and 9 investors will be best served if 8 session and the Securities Industry (Relating to odd-lot order execution) exchanges are participants in that Automation Corporation (‘‘SIAC’’) and market. and Article XXXIV (relating to market Nasdaq, Inc. will disseminate CHX makers) reflect these changes. The operation of the E-Session. The E- quotations and trade data. Securities eligible for trading during Session extended trading hours session The Exchange, however, proposes the E-Session. The CHX’s Committee on will be held from 3:30 p.m. three changes to existing rules that arise Floor Procedure will identify, from time (immediately following the close of the from either the Exchange’s desire to to time, the securities eligible for trading CHX’s post primary trading session) to more fully automate the E-Session or during the E-Session. At its meeting on 5:30 p.m., Central time, Monday from the fact that no primary market September 21, 1999, the Committee on through Friday.5 will be immediately available during the Floor Procedure adopted the list of Trading during the E–Session will be E-Session. First, the CHX’s Guaranteed potentially eligible securities conducted, in some respects, as it is Execution System (the ‘‘Best System’’) recommended to it by the Exchange’s during the CHX’s primary trading and the automatic execution features of New Product Development Committee. session; however, the Exchange has the Midwest Automated Execution The 311 securities approved by the added new features to more fully System will not operate during the E- Committee on Floor Procedure include automate the transmission of orders and Session. In general, the Best System the securities listed on the Standard & to provide additional protections to requires specialists to accept and Poor’s (‘‘S&P’’) 100 Stock Index TM investors who trade during the E- execute orders at prices keyed to the (‘‘OEX’’) as of August 30, 1999, the Session. Only unconditional limit primary market in each security. The securities listed on the Nasdaq-100 orders will be eligible for execution in Index (‘‘NDX’’) as August 30, 1999, the E-Session and each limit order must 6 Preopening orders in all E-Session Eligible and any other securities that ranked be appropriately designated for trading Securities will be eligible for a single price opening. See proposed Article XXA, Rule 7. The single price among the 100 most active listed and in the E-Session. Any orders remaining to be applied to preopening orders will be 100 most active New York Stock unexecuted at the end of the E-Session determined based on the preopening limit orders Exchange (‘‘NYSE’’) or Nasdaq/NMS will be automatically canceled and will represented on the limit order book at that time. In the event that there are no preopening limit orders securities, and certain S&P Midcap and not carry over to any other trading represented on the limit order book at that time. In S&P 9 Select SPDRs securities as of the session. Specialist firms will continue to the event that there are no preopening limit orders end of the second quarter of 1999.9 make two-sided, continuous markets in on the book, the specialist will determine the Members eligible to participate in the the stocks assigned to them during the opening price based on the closing price of the primary trading session. Telephone conversation E-Sesson. All CHX members will access existing trading sessions at their posts between Paul O’Kelly, Executive Vice President, to the E-Session, in accordance with on the floor of the CHS, unless a Market Regulation and Legal, CHX, and Deborah applicable CHX rules.10 specialist firm has transferred its Flynn, Special Counsel, Division, Commission, on assignment, for the E-Session only, to October 13, 1999. 7 See proposed amendments to Article XX, Rule 9 Telephone conversation between Paul O’Kelly, another specialist firm with the 1 (Application) and Article XXI, Rule 1 (Reporting Executive Vice President, Market Regulation and approval of the CHX’s Committee on of Transaction). Legal, CHX, and Deborah Flynn, Special Counsel, Specialist Assignment and Evaluation 8 Transactions that take place during the E- Division, Commission, on October 7, 1999. (‘‘CSAE’’). Session will be reported to NSCC as part of the 10 Under a rule recently proposed by the CHX, if same end-of-day transmissions used for transactions approved by the Commission, CHX members would conducted during the regular trading session. As a be able to lease certain E-Session trading privileges 5 See proposed amendments to Article IX, Rule result, these transactions will be reported as same- to others, so long as the lessees are approved as 10(b) (Business Days and Hours of Trading) and day trades and will be subject to the normal three- members of the Exchange and meet other Article XX, Rule 2 (Hours of Floor Dealing). day (‘‘T+3’’) settlement cycle. Continued VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56552 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Trading halts due to extraordinary CHX plans to use many of the same IV. Commission’s Findings and Order market volatility. If trading in all review procedures for systems security, Granting Accelerated Approval of securities on the CHX is halted during capacity management, and recovery and Proposed Rule Change the primary trading session and the halt contingency planning that it employs The Commission has reviewed remains in effect at the close of that for the systems that support the primary carefully the CHX’s proposed rule session, the Exchange will cancel the E- trading session. change and believes, for the reasons set Session for that day. Two CHX floor 2. Statutory Basis forth below, that the proposal is officials can halt trading in any or all consistent with the requirements of securities during and E-Session if they The CHX believes that the proposed Section 6 of the Act 13 and the rules and determine that such action is necessary rule change is consistent with Section regulations thereunder applicable to a to preserve a fair and orderly market, 6(b)(5) of the Act 12 in that it is designed national securities exchange.14 and two floor officials may reopen to promote just and equitable principles Specifically, the Commission believes trading in any halted security on the of trade, to remove impediments and to that, by providing retail investors with same basis. perfect the mechanism of a free and an additional means to trade after Mandatory disclosures to non- open market and a national market regular trading hours, the proposal is members. Because the E-Session system, and, in general, to protect consistent with Section 6(b)(5) of the operates in a manner, and at a time, that investors and the public interest. Act 15 in that it is designed to remove is different from the CHX’s primary impediments to, and to perfect the B. Self-Regulatory Organization’s trading session, the proposal requires mechanism of, a free and open market. Statement of Burden on Competition members to provide specific disclosures The implementation of the CHX’s E- to non-members before accepting orders The Exchange does not believe that Session should enhance competition in for execution in the E-Session. the after-hours market. Currently, Specifically, a member cannot accept an the proposed rule change will impose any inappropriate burden on several electronic trading systems order from a non-member before first provide retail investors the opportunity disclosing that: (1) Orders for E-Session competition. Indeed, the Exchange believes that the proposed rule change to trade after-hours. The presence of a Eligible securities are eligible only for a national securities exchange in the after- single E-Session and, if not executed will foster competition in the after- hours market. hours market should provide retail during that E-Session, shall investors with an alternative forum automatically be canceled; (2) C. Self-Regulatory Organization’s through which to conduct after-hours unconditional limit orders are the only Statement on Comments Regarding the transactions. orders that are eligible for execution in Proposed Rule Change Received From The Commission also believes that the the E-Session; (3) there is likely to be Members, Participants or Others rules and regulations applicable to less liquidity during trading that occurs Exchange members should enhance the No written comments were either once normal trading hours have ended transparency and integrity of the after- solicited or received. and, as a consequence, there may be hours market and promote the goals of greater fluctuations in securities prices; III. Solicitation of Comments the national market system. Specifically, and (4) distinct systems and facilities the Commission finds that the proposed trade securities after normal trading Interested persons are invited to rule change is consistent with Section hours have ended and, as a submit written data, views and 11A(a)(1)(C) of the Act.16 Congress consequence, at any particular time, arguments concerning the foregoing, found in those provisions that it is in quotations and transaction prices for a including whether the proposed rule the public interest and appropriate for security may vary among those systems. change, as amended, is consistent with the protection of investors and the These disclosures are designed to the act. Persons making written maintenance of fair and orderly markets ensure that participants in the after- submissions should file six copies to assure the availability to brokers, hours market understand the potential thereof with the Secretary, Securities dealers, and investors of information risks of that participation. and Exchange Commission, 450 Fifth with respect to quotations for and Surveillance and oversight. The Street, N.W., Washington, D.C. 20549– transactions in securities, and to assure Exchange will surveil E-Session trading 0609. Copies of the submissions, all the practicability of brokers executing using enhanced surveillance subsequent amendments, all written investors’ orders in the best market.17 programs.11 E-Session order delivery, statements with respect to the proposed The proposed rule change accomplishes quoting and matching will be almost rule change that are filed with the the objectives of the Act by ensuring entirely controlled by the Exchange’s Commission, and all written that Nasdaq and SIAC systems, which electronic systems. These systems communications relating to the are used by market participants to should reduce the possibility for proposed rule change between the communicate quotations and intentional or inadvertent mishandling Commission and any person, other than transactions, will be available to of orders and will enhance the those that may be withheld from the investors outside of traditional market effectiveness of the surveillance public in accordance with the hours, thereby providing for greater programs. provisions of 5 U.S.C. 552, will be Procedures for reviewing capacity, transparency in the after-hours market. available for inspection and copying at In addition, the Commission notes security and contingency planning. The the Commission’s Public Reference that the CHX has added new features to Room. Copies of such filings will also be requirements. See Securities Exchange At Release 13 No. 41968 (September 30, 1999), 64 FR 54701 available for inspection and copying at 15 U.S.C. 78f. (October 7, 1999) (noticing File No. SR–CHX–99– the principal office of the CHX. All 14 In approving this rule, the Commission has 08). submissions should refer to File No. considered the proposed rule’s impact on 11 Letters to Belinda Blaine, Associate Director, efficiency, competition, and capital formation. 15 SR–CHR–99–16 and should be U.S.C. 78c(f). Division, Commission, from Paul B. O’Kelly, submitted by November 10, 1999. Executive Vice President, Market Regulation and 15 15 U.S.C. 78f(b)(5). Legal, CHX, dated October 6, 1999 and October 7, 16 15 U.S.C. 78k–1(a)(1)(C). 1999. 12 15 U.S.C. 78f(b)(5). 17 Id. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56553 more fully automate the transmission of 6(b)(5) of the Act 20 that Exchange V. Conclusion orders and to provide additional proposals be designed to promote just protections to investors who trade and equitable principles of trade. It is therefore ordered, pursuant to during the E-Session. For example, only Finally, the CHX has requested that Section 19(b)(2) of the Act,23 that the unconditional limit orders will be the Commission find good cause proposed rule change (SR–CHX–99–16), eligible for execution in the proposed E- pursuant to Section 19(b)(2) of the Act 21 as amended, is hereby approved on an Session and all such orders must be for approving the proposed rule change accelerated basis as a pilot program, specifically designated as E-Session prior to the 30th day after publication in through March 1, 2000. orders. E-Session orders that are not the Federal Register. The Commission For the Commission, by the Division of executed during the E-Session will be finds good cause for approving the Market Regulation, pursuant to delegated automatically canceled and are not proposed rule change prior to the 30th authority.24 carried over to the next-day primary day after the date of publication of Margaret H. McFarland, session. The Commission further notes notice of filing thereof in the Federal Deputy Secretary. Register because accelerated approval that the CHX proposes to require its [FR Doc. 99–27307 Filed 10–19–99; 8:45 am] members to provide certain disclosures will benefit investors by providing retail to non-members about the proposed E- investors with another venue, in this BILLING CODE 8010±01±M Session. The Commission believes that case, a national securities exchange, for the CHX’s proposed mandatory executing transactions after regular SECURITIES AND EXCHANGE disclosures to non-members should trading hours. Moreover, the rules and COMMISSION ensure that customers are reasonably regulations applicable to Exchange informed about the specific risks members should increase competition associated with participation in the in, and enhance the transparency of, the [Release No. 34±42001; File No. SR±CHX± after-hours market before their orders after-hours market. In particular, SIAC 99±17] are accepted by a CHX member. These and Nasdaq will disseminate CHX requirements are designed to limit, to quotations and trade data on a real-time Self-Regulatory Organizations; Notice the extent possible, the likelihood of basis over the consolidated tape. of Filing of Proposed Rule Change by investor confusion regarding the The Commission further believes that the Chicago Stock Exchange, Inc. significant differences between the E- good cause exists for approving Relating to Voluntary Delisting Session and the existing trading Amendment No. 1 to the proposed rule Requirements sessions. Moreover, the proposed change prior to the thirtieth day after October 13, 1999. requirement that specialist firms the date of publication in the Federal continue to make two-sided, continuous Register. The Commission notes that Pursuant to section 19(b)(1) of the markets in the securities assigned to Amendment No. 1 merely establishes Securities Exchange Act of 1934 them for the existing trading sessions the extended hours trading session as a (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 may provide further liquidity for pilot program, scheduled to expire on notice is hereby given that on investor orders. March 1, 2000. The Commission September 24, 1999, the Chicago Stock believes that designation the E-Session In the Commission’s view, the CHX’s Exchange, Inc. (‘‘CHX’’ or ‘‘Exchange’’) as a pilot program will provide the proposal to require its members to filed with the Securities and Exchange Commission and the CHX with follow the rules and procedures Commission (‘‘Commission’’ or ‘‘SEC’’) currently in place for the existing additional time to evaluate the issues implicated by after-hours trading. In the proposed rule change as described trading session, with certain exceptions, in Items I and II below, which Items is reasonable. The Commission notes addition, a pilot program should provide the Commission and the CHX have been prepared by the self- that proposed exceptions result from the regulatory organization. The CHX’s desire to more fully automate its with greater flexibility to modify the Commission is publishing this notice to E-Session and the fact that no primary program to ensure consistency across solicit comments on the proposed rule markets are expected to be operating in markets when the primary markets change from interested persons. the after-hours market at the time the extend their trading hours. The Commission believes that good CHX’s E-Session is implemented. I. Self-Regulatory Organization’s cause also exists to accelerate approval Although the Commission believes that Statement of the Terms of Substance of of Amendment No. 2 to the proposed the proposed exceptions are reasonable the Proposed Rule Change at this time, the Commission expects rule change. Amendment No. 2 delays that the CHX’s Best System and its the date on which the proposal becomes The Exchange proposes to amend existing rules governing odd-lot orders operative to October 29, 1999 to provide Article XXVIII, Rule 4 of the Exchange’s would be applied by the CHX to the E- the Exchange additional time to ensure rules to modify the prerequisites to Session as soon as the primary markets that its systems are ready. The voluntary delisting from the Exchange. Commission believes that it is prudent initiate trading in the after-hours Specifically, the proposed rule change for the CHX to take the requisite time to market.18 would delete the requirement that an ensure that its systems are fully The Commission further notes that issuer seeking to delist first obtain prepared prior to implementing its the CHX has represented that it intends shareholder approval, replacing the to implement enhanced surveillance proposed E-Session. The Commission finds, therefore, that granting deleted provisions with a provision procedure with respect to the proposed requiring that the issuer first file with E-Session.19 The enhanced surveillance accelerated approval of the proposed rule change, including Amendment Nos. the Exchange a certified copy of its capabilities should assist the CHX in board resolution authorizing delisting. satisfying the requirements of Section 1 and 2, is appropriate and consistent with Section 6 of the Act.22 23 15 U.S.C. 78s(b)(2). 18 These changes would require the CHX to 24 submit a rule filing with the Commission pursuant 20 15 U.S.C. 78f(b)(5). 17 CFR 200.30–3(a)(12). to Section 19(b) of the Act. 15 U.S.C. 78s(b). 21 15 U.S.C. 78s(b)(2). 1 15 U.S.C. 78s(b)(1). 19 See supra note 11. 22 15 U.S.C. 78f. 2 17 CFR 240.19b–4. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56554 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices II. Self-Regulatory Organization’s C. Self-Regulatory Organization’s SECURITIES AND EXCHANGE Statement of the Purpose of, and Statement on Comments on the COMMISSION Statutory Basis for, the Proposed Rule Proposed Rule Change Received From Change Members, Participants, or Others [Release No. 34±42003; File No. SR±NASD± Written comments on the proposed 99±57] In its filing with the Commission, the rule change were neither solicited nor self-regulatory organization included received. Self-Regulatory Organizations; Notice statements concerning the purpose of of Filing and Order Granting and basis for the proposed rule change III. Date of Effectiveness of the Accelerated Approval of Proposed and discussed any comments it received Proposed Rule change and Timing for Rule Change and Amendment No. 1 by on the proposed rule change. The text Commission Action National Association of Securities of these statements may be examined at Within 35 days of the date of Dealers, Inc. Relating to the Extension the places specified in Item IV below. publication of this notice in the Federal of Certain Nasdaq Services and The self-regulatory organization has Register or within such longer period (i) Facilities Until 6:30 p.m. Eastern Time prepared summaries, set forth in as the Commission may designate up to October 13, 1999. sections A, B, and C below, of the most 90 days of such date if it finds such longer period to be appropriate and Pursuant to Section 19(b)(1) of the significant aspects of such statements. 1 publishes its reasons for so finding or Securities Act of 1934 (‘‘Act’’), and 2 A. Self-Regulatory Organization’s (ii) as to which the self-regulatory Rule 19b–4 thereunder, notice is Statement of the Purpose of, and organization consents, the Commission hereby given that on October 5, 1999, Statutory Basis for, the Proposed Rule will: the National Association of Securities Change (A) By order approve such proposed Dealers, Inc. (‘‘NASD’’), through its rule change, or wholly-owned subsidiary, The Nasdaq 1. Purpose (B) Institute proceedings to determine Stock Market, Inc. (‘‘Nasdaq’’) filed with the Securities and Exchange The Exchange has proposed the rule whether the proposed rule change Commission (‘‘SEC’’ or ‘‘Commission’’) change in order to ensure that CHX- should be disapproved. the proposed rule change as described listed companies are not subject to more IV. Solicitation of Comments in Items I and II below, which Items stringent voluntary delisting Interested persons are invited to have been prepared by Nasdaq. On requirements than those imposed by submit written data, views and October 13, 1999, Nasdaq submitted other exchanges. In prior years, many arguments concerning the foregoing, Amendment No. 1 to the proposed rule exchanges included in their listing including whether the proposed rule change.3 The Commission is publishing standards the requirement that an issuer change is consistent with the Act. this notice to solicit comments on the seeking to delist voluntarily first obtain Persons making written submissions proposed rule change from interested shareholder approval. Over time, this should file six copies thereof with the persons. For the reasons discussed requirement has been deleted by each Secretary, Securities and Exchange below, the Commission is granting exchange (other than the CHX) and Commission, 450 Fifth Street, N.W., accelerated approval of the proposed generally has been replaced with the Washington, D.C. 20549–0609. Copies of rule change and Amendment No. 1 on requirement that the issuer demonstrate the submission, all subsequent a pilot basis through March 1, 2000. that its board of directors has authorized amendments, all written statements I. Self-Regulatory Organization’s with respect to the proposed rule delisting. See, e.g., Amex Rule 18; PCX Statement of the Terms of Substance of change that are filed with the Rule 3.4(b); Phlx Rule 809. the Proposed Rule Change Commission, and all written 2. Statutory Basis communications relating to the Pursuant to the provisions of Section 4 The Exchange believes that the proposed rule change between the 19(b)(1) under the Act, Nasdaq is filing Commission and any person, other than a proposed rule change to establish a proposed rule change is consistent with those that may be withheld from the pilot program extending the availability section 6(b) 3 of the Act, in general, and public in accordance with the of several Nasdaq services and facilities section 6(b)(5) 4 of the Act, in particular, provisions of 5 U.S.C. 552, will be until 6:30 p.m. Eastern Time. In in that it is designed to promote just and available for inspection and copying in addition, Nasdaq is proposing to extend equitable principles of trade, to remove the Commission’s Public Reference the applicability of NASD Interpretive impediments to, and to perfect the Room, located at the above address. Material 2110–2 (the ‘‘Manning Rule’’) mechanism of a free and open market Copies of such filing will also be until 6:30 p.m. Eastern Time. Below is and a national market system, and, in available for inspection and copying at the text of the proposed rule change. general, to protect investors and the the principal office of the self-regulatory public interest. organization. All submissions should 1 15 U.S.C. 78s(b)(1). 2 B. Self-Regulatory Organization’s refer to File No. SR–CHX–99–17 and 17 CFR 240.19b–4. should be submitted by November 10, 3 Letter to Belinda Blaine, Associate Director, Statement on Burden on Competition 1999. Division of Market Regulation (‘‘Division’’), Commission, from Thomas P. Moran, Assistant The Exchange does not believe that For the Commission, by the Division of General Counsel, Nasdaq, dated October 12, 1999 the proposed rule change will impose Market Regulation, pursuant to delegated (‘‘Amendment No. 1’’). In Amendment No. 1, any burden on competition that is not authority.5 Nasdaq proposes to amend the initial filing to request that the Commission approve its proposed necessary or appropriate in furtherance Margaret H. McFarland, extended hours trading session on a pilot basis of the purposes of the Act. Deputy Secretary. beginning on October 25, 1999, through March 1, [FR Doc. 99–27370 Filed 10–19–99; 8:45 am] 2000. Nasdaq also explains in Amendment No. 1 how certain concerns regarding calculation of a 4 BILLING CODE 8010±01±M p.m. closing price will be addressed and how the 3 15 U.S.C. 78f(b). Manning Rule will apply. 4 15 U.S.C. 78f(b)(5). 5 17 CFR 200.30–3(a)(12). 4 15 U.S.C. 78s(b)(1). VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56555 Proposed new language is italicized; (b) Exclusion for Limit Orders That Are T+1, the trade details to be reported, proposed deletions are in brackets. Marketable at Time of Receipt and the applicable procedures shall be * * * * * No Change. governed, respectively, by paragraphs (b), (c), and (d) below. IM–2110–2. Trading Ahead of Customer 4617. Normal Business Hours (5)–(8) No Change. Limit Order A Nasdaq market marker shall be 4640. Reporting Transactions in (a) General Application 5 open for business as of 9:30 a.m. Eastern Nasdaq Small Cap—Market Securities Time and shall close no earlier than 4 To continue to ensure investor p.m. Eastern Time. Should a market 4642. Transaction Reporting protection and enhance market quality, maker wish to voluntarily remain open (a) When and How Transactions Are the Association’s Board of Governors is for business later than 4 p.m. Eastern Reported issuing an interpretation to the Rules of Time, it shall so notify the Nasdaq Market Operations via a Nasdaq (1)–(3) No Change. the Association dealing with member (4)(A) Last sale reports of transactions firms’ treatment of their customer limit terminal and shall close only on the hour or the half hour, but no later than in designated securities executed orders in Nasdaq securities. This between 8 a.m. and 9:30 a.m. Eastern interpretation, which is applicable from 6:30 p.m. Eastern Time. Nasdaq market makers whose quotes are open after 4 Time shall be transmitted through ACT 9:30 a.m. to 6:30 p.m. Eastern Time, within 90 seconds after execution and will require members acting as market p.m. Eastern Time shall be obligated to comply, while their quotes are open, shall be designated as ‘‘.T’’ trades to makers to handle their customer limit denote their execution outside normal orders with all due care so that market with all NASD Rules that are not by their express terms, or by an official market hours. Additionally, last sale makers do not ‘‘trade ahead’’ of those interpretation of the Association, reports of transactions in designated limit orders. Thus, members acting as inapplicable to any part of the 4 p.m. to securities executed between the hours of market makers that handle customer 6:30 p.m. Eastern Time period. 4 p.m. and [5:15] 6:30 p.m. Eastern Time limit orders, whether received from shall be transmitted through ACT their own customers or from another 4630. Reporting Transactions in within 90 seconds after execution; member, are prohibited from trading at Nasdaq National Market Securities trades executed and reported after 4 prices equal or superior to that of the 4632. Transaction Reporting p.m. Eastern Time shall be designated as limit order without executing the limit ‘‘.T’’ trades to denote their execution order. [,provided that, prior to (a) When and How Transactions Are outside normal market hours. September 1, 1995, this prohibition Reported Transactions not reported within 90 shall not apply to customer limit orders (1)–(3) No Change. seconds must include the time of that a member firm receives from (4) Transaction Reporting Outside execution on the trade report. another member firm and that are Normal Market Hours. (A) Last sale (B) Last sale reports of transactions greater than 1,000 shares.] Such orders reports of transactions in designated executed outside the hours of 8 a.m. and shall be protected from executions at securities executed between 8 a.m. and [5:15] 6:30 p.m. Eastern Time shall be prices that are superior but not equal to 9:30 a.m. Eastern Time shall be reported as follows: that of the limit order. In the interests transmitted through ACT within 90 (i) No Change. of investor protection, the Association is seconds after execution and shall be (ii) Last sale reports of transactions eliminating the so-called disclosure designated as ‘‘.T’’ trades to denote their executed between [5:15] 6:30 p.m. and ‘‘safe harbor’’ previously established for execution outside normal market hours. midnight Eastern Time shall be members that fully disclosed to their Additionally, last sale reports of transmitted through ACT on the next customers the practice of trading ahead transactions in designated securities business day (T+1) between 8 a.m. and of a customer limit order by a market- executed between the hours of 4 p.m. [5:15] 6:30 p.m. Eastern Time, be making firm.1 and [5:15] 6:30 p.m. Eastern Time shall designated ‘‘as/of’’ trades to denote their 1 ‘‘For purposes of the pilot program be transmitted through ACT within 90 execution on a prior day, and be expanding the operation of certain Nasdaq seconds after execution; trades executed accompanied by the time of execution. transaction and quotation reporting systems and reported after 4 p.m. Eastern Time The party responsible for reporting on and facilities in SR–NASD–99–57 during the shall be designated as ‘‘.T’’ trades to T+1, the trade details to be reported, period from 4 p.m. to 6:30 p.m. Eastern Time, denote their execution outside normal and the applicable procedures shall be members may generally limit the life of a market hours. Transactions not reported governed, respectively, by paragraphs customer limit order to the period of 9:30 within 90 seconds must include the (b), (c), and (d) below. a.m. to 4 p.m. Eastern Time. If a customer time of execution on the trade report. (5)–(8) No Change. (B) Last sale reports of transactions in does not formally assent (‘‘opt-in’’) to 4650. Reporting Transactions in processing of their limit order(s) during the designated securities executed outside Nasdaq Convertible Debt Securities extended hours period commencing after the the hours of 8 a.m. and [5:15] 6:30 p.m. normal close of the Nasdaq market, limit Eastern Time shall be reported as 4652. Transaction Reporting follows: order protection will not apply to that (a) When and How Transactions Are customer’s order(s).’’ (i) No Change. (ii) Last sale reports of transactions Reported * * * * * executed between [5:15] 6:30 p.m. and (1)–(3) No Change. midnight Eastern Time shall be (4) Transactions Reporting Outside 5 On September 9, 1999, the NASD filed a proposed rule change (SR–NASD–99–44), which transmitted through ACT on the next Normal Market Hours. (A) Last sale became effective upon filing pursuant to Section business day (T+1) between 8 a.m. and reports of transactions in designated 19(b)(3)(A) of the Act and Rule 19b–4(f)(1) [5:15] 6:30 p.m. Eastern Time, be securities executed between 8 a.m. and thereunder, modifying IM–2110–2 (exclusion of designated ‘‘as/of’’ trades to denote their 9:30 a.m. Eastern Time shall be limit orders marketable at the time of receipt). A non-substantive amendment was filed on execution on a prior day, and be transmitted through ACT within 90 September 24, 1999. This filing incorporates the accompanied by the time of execution. seconds after execution and shall be amendments filed in SR–NASD–99–44. The party responsible for reporting on designated as ‘‘.T’’ trades to denote their VerDate 12-OCT-99 17:39 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56556 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices execution outside normal market hours. (i) No Change. dissemination facilities until 6:30 p.m. Additionally, last sale reports of (ii) Last sale reports of transactions Eastern Time to encourage the transactions in designated securities ins ADRs, Canadian issues, or domestic collection and public dissemination of executed between the hours of 4 p.m. OTC Equity Securities that are executed securities transactions taking place after and [5:15] 6:30 p.m. Eastern Time shall between [5:15] 6:30 p.m. and midnight the 4 p.m. close of the Nasdaq market. be transmitted through the ACT system Eastern Time shall be transmitted these facilities are presently available within 90 seconds after execution; through ACT on the next business day until 5:15 p.m. Eastern Time. At the trades reported after 4 p.m. Eastern (T+1) between 8 a.m. and [5:15] 6:30 outset, Nasdaq wishes to stress that the Time shall be designated as ‘‘.T’’ trades p.m. Eastern Time, be designated ‘‘as/ above proposals are made in response to to denote their execution outside of’’ trades to denote their execution on requests from other market participants normal market hours. Transactions not a prior day, and be accompanied by the that wish to expand their trading reported within 90 seconds must time of execution. The party responsible activity in the hours after the regular include the time of execution on the for reporting on T+1, the trade details to close of the Nasdaq market. It is trade report. be reported, and the applicable Nasdaq’s view that the importance of (B) Last sale reports of transactions in procedures shall be governed, bringing increased transparency in the designated securities executed outside respectively, by paragraphs (b), (c), and form of more visible quotes and the hours of 8 a.m. and [5:15] 6:30 p.m. (d) below; and transaction reports to the time period Eastern Time shall be reported as (iii) No Change. (4)–(6) No Change. after the Nasdaq market’s close imposes follows: an obligation on Nasdaq to make (i) No Change. * * * * * available these systems and services as (ii) Last sale reports of transactions II. Self-Regulatory Organization’s quickly as possible. Nasdaq remains executed between [5:15] 6:30 p.m. and Statement of the Purpose of, and committed to working with the midnight Eastern Time shall be Statutory Basis for, the Proposed Rule Commission and other primary markets transmitted through ACT on the next Change to carefully evaluate the complex issues business day (T+1) between 8 a.m. and surrounding any future expansion of [5:15] 6:30 p.m. Eastern Time, be In its filing with the Commission, regular market trading hours. Under the designated ‘‘as/of’’ trades to denote their Nasdaq included statements concerning pilot proposal, Nasdaq will extend to execution on a prior day, and be the purpose of and basis for the 6:30 p.m. Eastern Time the operating accompanied by the time of execution. proposed rule change and discussed any hours of the following services: (1) The party responsible for reporting on comments it received on the proposed SelectNet Service (‘‘SelectNet’’); (2) T+1, the trade details to be reported, rule change. The text of these statements Automated Confirmation Transaction and the applicable procedures shall be may be examined at the places specified Service (‘‘ACT’’); (3) Nasdaq Quotation governed, respectively, by paragraphs in Item III below. Nasdaq has prepared (b), (c), and (d) below. summaries, set forth in Sections A, B, Dissemination Service (‘‘NQDS’’); and (5)–(7) No Change. and C below, of the most significant (4) Nasdaq Trade Dissemination Service aspects of such statements. (‘‘NTDS’’). The posting of quotations 6600. Reporting Transactions in Over- and trading of securities by NASD the-Counter Equity Securities A. Self-Regulatory Organization’s members during the period of time after Statement of the Purpose of, and 6620. Transaction Reporting Nasdaq’s normal market close and Statutory Basis for, the Proposed Rule before 6:30 p.m. Eastern Time shall be (a) When and How Transactions Are Change voluntary. Reported Trading securities outside of normal Under the pilot, any Nasdaq market (1)–(2) No Change. market hours is not a new phenomenon. maker that chooses to post quotations (3) Transaction Reporting Outside Nasdaq presently makes available and trade during the 4 p.m. to 6:30 p.m. Normal Market Hours. (A) Last sale several systems until until 5:15 p.m. Eastern Time period shall be obligated reports of transactions in OTC Equity Eastern Time to facilitate trading after to post firm two-sided quotations when Securities executed between 8 a.m. and the close of the Nasdaq market at 4 p.m. opening and making its market, but may 9:30 a.m. Eastern Time shall be Eastern Time. Recently, however, enter or leave the market on the hour or transmitted through ACT within 90 several alternative trading systems have half-hour up to 6:30 p.m. Eastern Time. seconds after execution and shall be initiated their own after-hours trading NASD member firms that do not choose designated as ‘‘.T’’ trades to denote their sessions. As such, there are now several to open their market and instead send execution outside normal market hours. different market venues available for customer or proprietary orders to other Last sale reports of transactions in OTC trading after 4:00 p.m. Eastern Time. market participants for display and/or Equity Securities executed between the Presently there is no facility available to execution (or that choose to hold those hours of 4 p.m. and [5:15] 6:30 p.m. aggregate the activity in these various Eastern Time shall also be transmitted markets, making it difficult for market orders until the next day’s regular trading session) will likewise not be through ACT within 90 seconds after participants to determine the best prices 6 execution; trades executed and reported available. Furthermore, information obligated to post firm two-sided quotes. after 4 p.m. Eastern Time shall be regarding transactions executed on these Regardless of an NASD member’s designated as ‘‘.T’’ to denote their different markets is currently not widely quotation activity, all transactions in execution outside normal market hours. available to investors, depriving them Nasdaq National Market, SmallCap, Transactions not reported within 90 and other market participants of full, Convertible Debt and over-the-counter seconds must include the time of verifiable information on which to base equity securities executed between the execution on the trade report. trading decisions. hours 8 a.m. and 6:30 p.m. Eastern Time (B) Last sale reports of transactions To remedy this situation, Nasdaq is ins OTC Equity Securities executed proposing to establish a pilot program to 6 Nasdaq market makers that do not elect to open their quotes would still be obligated to trade report outside the hours of 8 a.m. and [5:15] extend, effective October 25, 1999 transactions during the 4 p.m. to 6:30 p.m. Eastern 6:30 p.m. Eastern Time shall be reported through March 1, 2000, the availability Time period consistent with current trade reporting as follows: of its trade reporting and quotation rules applicable during regular market hours. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56557 must be reported to ACT within 90 NASD members will, however, continue designated as ‘‘.T’’ trades that do not seconds. to be required to make affirmative affect closing price in the relevant Along with the expanded operating determinations that they will receive security. times of the above systems and services, delivery of a security from their Amendment No. 1 also describes how Nasdaq also wishes to make clear to customers or that the member can Nasdaq will address issues involving members which NASD Rules will be in borrow the security on behalf of the the use of closing prices for NAV force during the extended SelectNet and customer for delivery by settlement date calculations by mutual funds. In ACT sessions. Except as modified by before accepting short sale orders during particular, under the Nasdaq proposal, this filing, only those rules that are the extended SelectNet and ACT certain specialized closing price reports limited by their express terms, or by an 9 sessions. for non-OTC Bulletin Board and foreign official interpretation of the Association, Finally, given the importance of ordinary issues, as well as some to a specific time period outside of the timely trade reporting for transparency American Depository Receipts 4 p.m. to 6:30 p.m. Eastern Time period purposes, Nasdaq’s trade reporting rules (‘‘ADRs’’), will not be issued by Nasdaq shall not be in force during the extended for NMS, SmallCap, Convertible Debt, in time to permit funds to report their SelectNet/ACT/NQDS/NTDS sessions. and over-the-counter equity securities Towards that end, Nasdaq is proposing (Rules 4632, 4642, 4652, 6620) will be NAVs to Nasdaq’s Mutual Fund to modify NASD rule 4617 (Normal modified to mandate 90 second ACT Quotation Service (‘‘MFQS’’) by that Business Hours) to make clear to Nasdaq trade reporting for all transactions in system’s 5:50 p.m. Eastern Time market makers who voluntarily open these securities executed after Nasdaq’s deadline. Accordingly, Nasdaq has their markets after the close that, except regular market close and before 6:30 indicated that it will post an electronic as modified by this filing, they are p.m. Eastern Time. Nasdaq staff will file with this closing price information obligated to conduct their business continue to initiate trading halts 10 and on the OTC Bulletin Board web site during the extended SelectNet/ACT/ adjudicate clearly erroneous trade between 5:20 p.m. and 5:40 p.m. Eastern NQDS/NTDS sessions in conformity disputes in the extended SelectNet and Time (with an internal goal of posting with all NASD Rules whose ACT sessions using the same standards by 5:30 p.m. Eastern Time). applicability is not limited to specific and methods as employed during In addition, some funds and vendors times outside the 4 p.m. to 6:30 p.m. normal market hours.11 Nasdaq’s have raised general concerns about what Eastern Time period. In addition, MarketWatch and NASD Regulation’s they perceived to be lack of time to Nasdaq’s Board of Directors, at its Market Regulation Department will be modify and test their systems before the meeting on October 6, 1999, approved a staffed to provide oversight of trading planned introduction of inside proposal to amend NASD IM–2110–2 and quotation activity up to 7 p.m. quotations up to 6:30 p.m. Eastern Time. (also known as the ‘‘Manning Rule’’) to Eastern Time. Amendment No. 1 indicates that, in extend its applicability until 6:30 p.m. Amendment No. 1. Among other response to these concerns, Nasdaq has things, Nasdaq’s Amendment No. 1 Eastern Time. The Manning Rule pushed back the planned start-up date addresses issues concerning the prohibits an NASD member firm which for distributing after-hours inside dissemination of regular session closing is holding a customer limit order from quotations from November 1 to price reports under the pilot program. trading from that member’s market December 6, 1999. While Nasdaq Specifically, the Amendment confirms making proprietary account at a price acknowledges that this later start-up that systems operations until 6:30 p.m. that would satisfy the customer’s limit Eastern Time will not interfere with the date will not satisfy every concern order without executing that customer ability of investors to obtain 4 p.m. raised by vendors and funds, Nasdaq limit order. This interpretation closing prices in Nasdaq securities. believes that the delay until December previously applied only during regular 6 should provide sufficient time for 7 Closing prices are currently Nasdaq market hours. disseminated by vendors shortly after essential systems modifications and NASD’s Short Sale Rule,8 however, testing. Nasdaq states that it will will not initially be applicable beyond the 4 p.m. close even though the Nasdaq systems operate until 5:15 p.m. Eastern continue to work with vendors and the normal market hours. In NASD Notice mutual fund industry on these issues. to Members 94–68, the NASD limited Time; systems operations until 6:30 p.m. Eastern Time will not change this Amendment No. 1 also clarifies how the Short Sale Rule’s applicability to practice. Trades effected after 4 p.m. the Manning Rule will apply during the normal market hours (9:30 a.m. to 4 Eastern Time will continue to be extended hours of the pilot from 4 p.m. p.m. Eastern Time). In addition, to 6:30 p.m. Eastern Time. Nasdaq technological constraints currently 9 See NASD Rule 3370. prevent Nasdaq from calculating a best confirms in Amendment No. 1 that, on 10 Nasdaq notes that this trading halt authority October 6, 1999, the Board of Directors bid/offer during the period between 4 will be limited to individual stocks only and will p.m. and 6:30 p.m. Eastern Time. As a be undertaken in consultation with other primary of Nasdaq approved the expansion of result, Nasdaq cannot provide the last markets operating after 4 p.m. Eastern Time. the applicability of the Manning Rule to Market-wide trading halt rules currently in effect 6:30 p.m. Eastern Time. Nasdaq also bid directional arrow that is relied on by rely solely on percentage-based declines in the Dow market participants to remain in Jones Industrial Average (‘‘DJIA’’), a narrow index clarifies the application of the Manning compliance with the rule. Nasdaq that does not contain any Nasdaq stocks and which Rule after 4 p.m. Eastern Time by will not be calculated after the 4 p.m. close. In the believes that it will be technologically adding a footnote to IM–2100–2(a) event that a circuit breaker halt, triggered during discussing the handling of customer possible to calculate and provide an regular market hours, prevents a normal close of inside quote for the extended SelectNet U.S. primary markets, Nasdaq proposes that no limit orders if the customer does not session by on or about December 6, extended SelectNet or ACT sessions be commenced formally opt-in to processing limit that day. orders during the extended hours 1999. During the interim, Nasdaq will 11 Nasdaq has also been informed by the staff of evaluate after-the-close trading activity NASD Regulation, Inc. of its view that nothing in period. to determine whether an extension of the instant proposals modifies or limits an NASD Based on the above, Nasdaq believes member’s obligation to comply with the rules of the Short Sale Rule to the 4 p.m. to 6:30 NASD Regulation’s Order Audit Trail System that the proposed rule changes are p.m. Eastern Time period is appropriate. (‘‘OATS’’) when reporting trading activity taking consistent with the provisions of Prior to the provision of an inside quote, place between 4 p.m. and 6:30 p.m. Eastern Time. Section 15A(b)(b) of the Act in that they Nasdaq’s MarketWatch and NASD Regulation’s are designed to prevent fraudulent and Market Regulation Department will be staffed to 7 See NASD Notice to Members 95–67. provide oversight of trading and quotation activity manipulative acts and practices, to 8 NASD Rule 3350. up to 7 p.m. Eastern Time. promote just and equitable principles of VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56558 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices trade, and to foster cooperation and SR–NASD–99–57 and should be better able to evaluate prices before coordination with persons engaged in submitted by November 10, 1999. entering their order after primary regulating, clearing, settling, and trading hours. In sum, by providing the IV. Commission’s Findings and Order processing information with respect to, consolidated quotation display and last Granting Accelerated Approval of the sale tape for transactions taking place and facilitating transactions in Proposed Rule Change securities. between 4 p.m. and 6:30 p.m. Eastern For the reasons discussion below, the Time, Nasdaq’s proposal should B. Self-Regulatory Organization’s Commission finds that the proposed enhance investor protection and Statement on Burden on Competition rule change, as amended, is consistent confidence because it will give market Nasdaq does not believe that the with the requirements of the Act and the participants more complete information proposed rule change will result in any rules and regulations thereunder upon which to base trading decisions. burden on competition that is not applicable to the NASD and, in The Commission also believes that the necessary or appropriate in furtherance particular, the requirements of Sections proposed rule change is consistent with of the purposes of the Act. 11A and 15A.13 Section 15A of the Act 16 in that it is Specifically, the Commission believes designed to prevent fraudulent and C. SRO’s Statement on Comments on that the proposed rule change as manipulative acts and practices, to the Proposed Rule Change Received amended furthers the goals of the promote just and equitable principles of From Members, Participants, or Others national market system as reflected in trade, to foster cooperation and Although written comments were not Sections 11A(a)(1)(C)(iii) and (iv) of the coordination with persons engaged in solicited, Nasdaq has received four Act.14 Congress found in those regulating, clearing, settling, processing letters from market participants provisions that it is in the public information with respect to, and expressing concerns relating to the interest and appropriate for the facilitating transactions in securities, to proposed rule change.12 Nasdaq has protection of investors and the remove impediments to and perfect the addressed these comment letters in maintenance of fair and orderly markets mechanism of a free and open market Amendment No. 1. to assure the availability to brokers, and a national market system, and, in dealers, and investors of information general, to protect investors and the III. Solicitation of Comments with respect to quotations for and public interest. The proposed rule Interested persons are invited to transactions in securities, and to assure change accomplishes these objectives by submit written data, views, and the practicability of brokers executing making Nasdaq’s systems available to arguments concerning the foregoing investors’ orders in the best market. market participants who choose to offer including whether the proposed rule Section 11A(a)(1) further found that the trading to customers outside of change, as amended, is consistent with linking of all markets for qualified traditional market hours, by providing the Act. Persons making written securities through communication and for greater transparency, and by linking submissions should file six copies data processing facilities would foster the various market participants engaged thereof with the Secretary, Securities efficiency, enhance competition, in trading during those hours through and Exchange Commission, 450 Fifth increase the information available to SelectNet. Street, NW, Washington, DC 20549– brokers, dealers, and investors, facilitate Amendment No. 1 also confirms that 0609. Copies of the submission, all the offsetting of investors’ orders, and the extended trading pilot will not subsequent amendments, all written contribute to best execution of such interfere with the ability of investors to statements with respect to the proposed orders.15 The proposed rule change as obtain 4 p.m. closing prices in Nasdaq rule change that are filed with the amended will assure the availability of securities. Moreover, Nasdaq has Commission, and all written information with respect to quotations outlined measures that it has taken to communications relating to the and transactions because it makes address specific concerns of vendors proposed rule change between the Nasdaq’s systems, which are used by and the mutual fund industry Commission and any person, other than market participants to communicate concerning the availability of closing those that may be withheld from the quotes and orders and to report trades, prices for NAV calculations and the public in accordance with the available until 6:30 p.m. Eastern Time. need for sufficient time to modify and provisions of 5 U.S.C. 552, will be Currently, there is not consolidated test their systems before the planned available for inspection and copying in source of information on trades and introduction of inside quotations after 4 the Commission’s Public Reference quotations after 5:15 p.m. Eastern Time, p.m. Eastern Time. While Nasdaq Room. Copies of such filing will also be making it difficult for investors to acknowledges that these measures will available for inspection and copying at determine the best prices available. not satisfy every concern raised by the principal office of the NASD. All Nasdaq’s proposal will enhance vendors and funds, the delay until submissions should refer to File No. transparency by requiring that December 6th for the dissemination of transactions in NMS, SmallCap, after-hours inside quotations should 12 Letter to Richard G. Ketchum, President, Convertible Debt, and over-the-counter provide sufficient time for essential NASD, from Craig S. Tyle, General Counsel, equity securities that take place up to systems modifications and testing. Investment Company Institute, dated September 24, 6:30 p.m. Eastern Time be reported Nasdaq has indicated that it will 1999; Letter to Richard G. Ketchum, President, within 90 seconds. In addition, to the NASD, and Patrick J. Campbell, Chief Operating continue to work with vendors and the Officer and Executive Vice President, The Nasdaq- extent that a market maker chooses to mutual fund industry on these issues. In Amex Market Group, Inc., from Jenni Neumann, participate in the after-hours session, its light of the need for improved Senior Vice President, Global Database quotations will be disseminated through transparency during the after-hours Management, Bridge Information Systems, dated NQDS. As a result, investors will be September 27, 1999; Letter to Richard G. Ketchum, session, and Nasdaq’s willingness to President, NASD, from David Byrnes, Senior Vice continue to work with vendors and President, Americas Information Management 13 In approving this rule, the Commission has mutual funds to ensure an orderly Group, Reuters Information, dated September 28, considered the proposed rule’s impact on extension of price reporting, the 1999; and Letter to Richard G. Ketchum, President, efficiency, competition, and capital formation. 15 NASD, from Thomas J. Higgins, Principal and U.S.C. 78c(f). Commission believes that Nasdaq’s Treasurer of the Vanguard Funds, The Vanguard 1415 U.S.C. 78k–1(a)(1)(C) (iii) and (iv). Group, dated September 29, 1999. 15 15 U.S.C. 78k–1(a). 16 15 U.S.C. 78o–3. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56559 determination to proceed with its pilot that choose to trade between 4 p.m. and the Limit Order Display Rule requires on schedule is reasonable. 6:30 p.m. Eastern Time.19 an OTC market maker to publish In addition, the proposed rule change In general, SEC Rule 11Ac1–1(b)(1)(ii) immediately a bid or offer that reflects as amended furthers the objectives of requires an association to disseminate the price and full size of each customer Section 15A of the Act by specifically the best bid, offer, and quotation sizes limit order that improves the bid or offer extending rules designed to protect for subject securities whenever ‘‘last of the OTC market marker, or that investors beyond the traditional market sale information with respect to reflects the full size of the customer hours while Nasdaq’s systems are reported securities is reported [by a limit order that is priced equal to the operating. For example, the Manning member acting in the capacity of an bid or offer of the OTC market maker or Rule previously did not apply after 4 OTC market maker] pursuant to an the national best bid or offer, and p.m. Eastern Time. Originally, the effective transaction reporting plan.’’ 20 represents more than a de minimis NASD believed Manning obligations NASD members, including OTC market change in the size of the OTC market should not apply after 4 p.m. Eastern makers, who choose to trade from 4 p.m. maker’s bid or offer.22 Time because the after-hours market to 6:30 p.m. Eastern Time will be Regulation ATS also applies to market was fundamentally different from the required to report last sale information participants who choose to operate from regular market.17 With the advent of on- pursuant to the NASD’s rules, and the 4 p.m. to 6:30 p.m. Eastern Time. line retail trading and other NASD will disseminate quotes during Currently, any alternative trading technological advances, however, the this time period. These procedures, in system that has five percent or more of nature of the after-hours market is turn, trigger the Commission’s Firm the average daily trading volume in a changing. In particular, the increasing Quote Rule, which generally obligates security must display its best orders in presence of retail customers during the OTC market makers to execute any that security in the public quotation after-hours market has led the NASD to order to buy or sell a subject security, stream during regular trading hours. reconsider the application of the other than an odd-lot order, presented to Although there may be some confusion Manning Rule between 4 p.m. and 6:30 it by another broker or dealer, or any as to whether average ‘‘daily’’ trading p.m. Eastern Time. Accordingly, upon other person belonging to a category of volume includes trades executed approval of the pilot, members acting as persons with whom such responsible outside of normal market hours, the market makers during these hours will broker or dealer customarily deals, at a calculation alternative trading systems be required to handle their customer price at least as favorable to such buyer must make regarding volume includes limit orders with due care so that they or seller as the responsible broker’s or all trades executed during the twenty- do not trade ahead of those limit orders. dealer’s published bid or published four hours that constitute a day. Any Members acting as market makers that offer. alternative trading system that meets the handle customer limit orders, whether Similarly, the reporting of last sale five percent threshold must therefore information to the NASD triggers the received from their own customers or display its orders in the public ECN Display Alternative. Under the from another member, will be quotation stream whenever the public ECN Display Alternative, an order prohibited from trading at prices equal quotation systems make display entered by a market maker into an or superior to that of the limit order possible. electronic communications network without executing the limit order. The The Commission is aware that there (‘‘ECN’’) that widely disseminates the Commission believes that the has been confusion among market order is deemed to be a bid or offer to application of the protections of the participants as to the applicability of be communicated to the market maker’s Manning and other NASD rules during these rules after 4 p.m. Eastern Time. association for at least the minimum after-hours trading will significantly Consequently, the Commission has 18 quotation size required by the enhance investor protection. issued a no-action letter to the NASD Association’s rules if the priced order is Commission Rules relieving market participants from for the account of the market maker, or complying with Rules 11Ac1–1(c)(5) The Commission has received the actual size of the order up to the (the ECN Display Alternative), 11ac1–4 inquiries from market participants minimum quotation size required if the (the Limit Order Display Rule), Rule seeking clarification regarding which priced order is for the account of a 301(b) (Regulation ATS), and the Commission rules apply to NASD customer. The ECN Display Alternative NASD’s Manning Rule until November members who choose to trade after 4 deems the market maker to be in 2, 1999.23 This temporary relief is p.m. Eastern Time while Nasdaq’s compliance with this requirement if the designed to give market participants systems are in operation. The ECN displays the market maker’s order (including ECNs) time to make the Commission wishes to clarify that, by in Nasdaq.21 their terms, SEC Rules 11Ac1–1(c)(2) In addition, the Limit Order Display system changes necessary to comply (the ‘‘Firm Quote Rule’’), 11Ac1–1(c)(5) with these rules during the 4 p.m. to Rule is not limited to regular trading 24 (the ‘‘ECN Display Alternative’’), hours, but also applies to OTC market 6:30 p.m. Eastern Time period. The 11Ac1–4 (the ‘‘Limit Order Display makers that choose to participate in Commission emphasizes, however, that Rule’’) and Rule 301(b) (‘‘Regulation after-hours trading sessions. Simply put, broker-dealers continue to have a duty ATS’’) apply to NASD member firms of best execution for their customer’s 19 17 CFR 240.11Ac1–1(c)(2), 17 CFR 240.11Ac1– orders during these hours. 17 See, e.g., NASD Notice to Members 95–67. 1(c)(5), 17 CFR 240.11Ac1–4, 17 CFR 242.301(b). 18 The Commission believes that the clarification For a complete discussion of these rules and the 22 There are certain exceptions to the Limit Order of the application of the Manning Rule in definitions of the terms used in the following Display Rule. Those exceptions would continue to Amendment No. 1 provides further enhancement of discussion, see the applicable Commission releases. apply during an after-hours trading session. See investor protection. In addition, the Nasdaq staff 20 17 CFR 240.11Ac1–1(b)(1)(ii). SEC Rule 11Ac1–4(c), 17 CFR 240.11Ac1–4(c). has indicated that a rule proposal is being 21 Therefore, if an ECN is receiving OTC market 23 Under the terms of this no-action letter, firms developed for consideration by the appropriate maker orders before 6:30 p.m. Eastern Time, the are not relieved from their obligation to comply Boards that would require that member firms ECN must transmit those orders through SelectNet with the Firm Quote Rule (Rule 11Ac1–1(c)(5), 17 establish procedures to have customers ‘‘opt-in’’ to for display in the Nasdaq montage, or the OTC CFR 240.11Ac1–1(c)(5)). having their order(s) processed during any period market maker must post the quote separately in its 24 See Letter to Robert E. Aber, General Counsel, outside of the 9:30 a.m. to 4 p.m. regular trading own quote line in the montage in order to be in Nasdaq, from Robert L.D. Colby, Deputy Director, session for Nasdaq. compliance with the ECN Display Alternative. Division, Commission, dated October 12, 1999. VerDate 12-OCT-99 19:05 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56560 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Nasdaq has requested that the While extended operation of some key SECURITIES AND EXCHANGE Commission find good cause pursuant Nasdaq trade reporting and quotation COMMISSION to Section 19(b)(2) of the Act 25 for dissemination systems will significantly [Release No. 34±41996; File No. SR±NYSE± approving the proposed rule change improve the current trading 98±47] prior to the 30th day after publication in environment after the major markets the Federal Register. The Commission close, the Commission recognizes that Self-Regulatory Organizations; New finds good cause for granting Nasdaq’s pilot program does not yet York Stock Exchange, Inc.; Order accelerated approval for the proposed include some features that would be Approving Proposed Rule Change and rule change because the Nasdaq pilot essential for a full after-hours trading Amendment No. 1 and Notice of Filing will benefit investors by improving the session. Specifically, Nasdaq’s pilot and Order Granting Accelerated transparency of the current after-hours does not require registered market Approval of Amendment No. 2 to market and assisting broker-dealers in makers in Nasdaq securities to Proposed Rule Change To Adopt Rule fulfilling their duty of best execution for participate in after-hours trading from 4 440 I Requiring Records of their customer orders. p.m. to 6:30 p.m. Eastern time and does Compensation Arrangements The Commission further believes that not envision the use of the Small Order Concerning Floor Brokerage good cause exists for approving Execution System (‘‘SOES’’) during this Amendment No. 1 to the proposed rule October 8, 1999. period. In Nasdaq’s view, its market will change prior to the thirtieth day after I. Introduction the date of publication of notice thereof not be open during the hours of the in the Federal Register. The first item pilot. The Commission believes that, On December 23, 1998, the New York covered in Amendment No. 1 merely before Nasdaq opens its market for Stock Exchange, Inc. (‘‘NYSE’’ or changes the date for implementation of extended trading, it would need to ‘‘Exchange’’) submitted to the Securities the after-hours trading session as a pilot incorporate additional market integrity and Exchange Commission (‘‘SEC’’ or program from October 11, 1999 to and investor protection features.26 ‘‘Commission’’), pursuant to Section October 25, 1999. The Commission In addition, the Commission has 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 believes that delaying the expedited approval of this proposal thereunder,2 a proposed rule change to implementation date will provide with the understanding that the systems adopt Rule 440 I, requiring records of Nasdaq and its member firms with limitations that currently prevent the additional time to make any necessary compensation arrangements concerning calculation of the best bid and offer for floor brokerage. On May 14, 1999, the systems changes. The second and third Nasdaq stocks after 4 p.m. Eastern Time items of Amendment No. 1 address how Exchange filed Amendment No. 1 to the will be addressed expeditiously. Such 3 the Manning Rule will apply during the proposed rule change. calculations will be necessary for the The proposed rule change and extended hours of the pilot from 4 p.m. Nasdaq’s Short Sale Rule to apply to to 6:30 p.m. Eastern Time. In the second Amendment No. 1 were published for trading during the 4:30 p.m. to 6:30 p.m. item, Nasdaq confirmed that, on October comment in the Federal Register on Eastern Time period. The Commission 4 6, 1999, the Board of Directors of June 2, 1999. The Commission received expects that Nasdaq will make every Nasdaq approved the expansion of the no comments on the proposal. On June applicability of the Manning Rule to reasonable effort to work with the 23, 1999, the NYSE submitted 6:30 p.m. Eastern Time. In the third vendors and the mutual fund Amendment No. 2 to the proposed rule 5 item, Nasdaq clarified the application of community to implement the systems change. This notice and order approves the Manning Rule after 4 p.m. Eastern enhancements needed for calculating the proposed rule change as amended Time by adding a footnote to IM–2110– the inside quote as soon as possible. and seeks comment from interested persons concerning Amendment No. 2. 2(a) discussing the handling of customer V. Conclusion limit orders if the customer does not II. Description of the Proposal formally opt-in to processing limit It is therefore ordered, pursuant to Proposed Rule 440 I would require orders during the extended-hours Section 19(b)(2) of the Act,27 that the that every member not associated with period. The Commission believes that proposed rule change (SR–NASD–99– the Manning Rule’s customer limit order a member organization, and each 57), including Amendment No. 1, is member organization primarily engaged protections should be provided to approved as a pilot program through customers who opt-in to having their as an agent in executing transactions on March 1, 2000. the Floor of the Exchange, maintain a orders processed in the extended-hours For the Commission, by the Division of period, and that, therefore, there is good Market Regulation, pursuant to delegated 1 15 U.S.C. 78s(b)(1). 28 cause for accelerating the approval of authority. 2 17 CFR 240.19b–4. these items in Amendment No. 1. The Margaret H. McFarland, 3 See Letter to Richard Strasser, Assistant Commission notes that the remaining Director, Division of Market Regulation Deputy Secretary. items discussed in Amendment No. 1 (‘‘Division’’), SEC, from James E. Buck, Senior Vice clarify how Nasdaq will continue to [FR Doc 99–27308 Filed 10–19–99; 8:45 am] President and Secretary, NYSE, dated May 12, 1999. BILLING CODE 8010±01±M In Amendment No. 1, the Exchange explained why make certain trade information available the proposed rule change would apply only to floor to the mutual fund industry. These members and member organizations but not to clarifications further ensure that the ‘‘upstairs’’ members and member organizations. pilot program will provide protection to 4 Securities Exchange Act Release No. 41441 (May investors who participate in the market 24, 1999), 64 FR 29723. 5 See Letter to Richard Strasser, Assistant through mutual funds. Accordingly, the Director, Division, SEC, from Daniel Parker Odell, Commission believes that there is good Assistant Secretary, NYSE, dated June 22, 1999. In cause for accelerating the approval of all Amendment No. 2, the Exchange revised the of the items in Amendment No. 1. 26 See, e.g., n. 18, supra. proposed rule test in Supplementary Material .10(a) to exclude compensation arrangements involving 27 15 U.S.C. 78s(b)(2). gross compensation of less than $5,000, rather than 25 15 U.S.C. 78s(b)(2). 28 17 CFR 200.30–3(a)(12). the originally proposed level of $10,000. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56561 written record of each type of the requirements of the Act and the members surveillance, investigations, compensation arrangement that they rules and regulations thereunder and disciplinary matters; and (f) enter into with other members, member applicable to a national securities increasing staff with adequate expertise organizations, non-member exchange, and, in particular, with the in the regulations of floor members organizations, or customers relating to requirements of Section 6(b).10 within the Department of Member transactions on the Floor. The written Specifically, the Commission believes Trading Analysis. The Commission record would include a description of that by strengthening the Exchange’s believes that, by strengthening the each type of arrangement and identify, ability to examine and surveil activities Exchange’s ability to examine and by name, the parties to each type of on the Exchange Floor, the proposal is surveil independent floor brokers’ arrangement in effect. consistent with the Section 6(b)(5) 11 activities on the Exchange Floor, the In addition, proposed Rule 440 I, requirements that the rules of an proposed rule change is consistent with Supplementary Material .10 would exchange be designed to prevent and is an important step toward exclude the following compensation fraudulent and manipulative acts and satisfying certain of the undertakings arrangements from the requirement to practices, to promote just and equitable relating to floor broker oversight. maintain a written record: principles of trade, to remove The proposal requires members and (1) Arrangements involving gross impediments to and perfect the member organizations primarily compensation of less than $5,000 per mechanism of a free and open market engaged as agents in executing year; 6 and and a national market system, and, in transactions on the Floor of the (2) Arrangements involving orders general, to protect investors and the Exchange (i.e., firms where 75% of transmitted solely through the public interest.12 revenue is derived from floor brokerage) Exchange’s electronic order routing The proposed rule change is intended to maintain a detailed written record of system.7 to fulfill some of the requirements of the their compensation agreements, unless Proposed Rule 440 I, Supplementary undertakings contained in the order the arrangement involves gross Material .20 would provide that a issued by the Commission relating to compensation of less than $5,000 per member or member organization is the settlement of an enforcement action year or involves orders transmitted deemed to be primarily engaged as an against the NYSE for failure to enforce solely through the Exchange’s electronic agent in executing transactions on the compliance with Section 11(a) and Rule order routing system. The Commission Floor of the Exchange if at least 75% of 11a–1 of the Exchange Act and NYSE finds that requiring members and its revenue is derived from floor Rules 90, 95 and 111.3 The SEC Order member organizations to maintain brokerage. found that the NYSE’s floor broker records of these compensation The proposed would apply to regulatory program suffered from two arrangements will facilitate the members and member organizations major deficiencies: (1) The NYSE failed Exchange’s review of such arrangements primarily engaged as agents in executing to take appropriate action to police for on an ongoing basis is part of the transactions on the Floor of the profit-sharing or other performance- routine examination process, as well as Exchange. It would specify a type of based compensation of independent on a for cause basis, for compliance record, records of compensation 15 floor brokers; and (2) the NYSE with Section 11(a) of the Act in terms arrangements, in addition to the records suspended its routine independent floor of whether any such arrangement required to be maintained under broker surveillance for extensive constitutes a member or member Exchange Act Rules 17a–3 8 and 17a–4,9 periods of time.14 Pursuant to the SEC organization having an interest in an that the Exchange believes is critical to Order, among other things, the NYSE account. The Commission also finds providing the Exchange the ability to agreed and was ordered to enhance and that enhancing the recordkeeping monitor floor broker activities. The improve by June 28, 2000 its regulation requirement of this limited group of proposed would not apply to ‘‘upstairs’’ of independent floor brokers, member Exchange members with respect to (i.e., off the Floor) members and firm floor brokers, specialists, registered compensation arrangements is member organizations. The proposal competitive market makers and consistent with the Exchange’s explains that independent brokers do competitive traders (collectively ‘‘Floor responsibility, under Section 6(b)(5) of not generally have independent Members’’) by: (a) examining the floor the Act, to prevent fraudulent and supervisory structures nor are they trading activities of all floor members manipulative acts and practices. subject to the same formalized internal The Exchange clarifies that the scope every two years; (b) ongoing, continuous supervisory oversight as ‘‘upstairs’’ of the proposal encompasses ‘‘$2 surveillance of all floor members; (c) organizations because many brokers’’ or ‘‘independent brokers’’ but thoroughly investigating indications of independent brokers act as sole excludes ‘‘upstairs’’ members and possible violations by floor members; proprietors with a limited customer and member organizations. The proposal (d) ensuring that members of its product base. explains that independent brokers do regulatory staff are present on the NYSE not generally have independent III. Discussion trading floor during trading hours to supervisory structures nor are they surveil for potential trading violations; The Commission finds that the subject to the same formalized internal proposed rule change is consistent with (e) ensuring adequate coordination supervisory oversight as ‘‘upstairs’’ among all staff responsible for floor organizations because many 6 Id. independent brokers act as sole 10 7 The NYSE is proposing to exclude orders 15 U.S.C. 78f(b). proprietors with a limited customer and transmitted solely through the Exchange’s 11 15 U.S.C. 78f(b)(5). electronic order routing system because the 12 In approving this rule, the Commission has product base. Requiring independent Exchange believes the automatic feature of this considered the proposed rule’s impact on floor brokers to maintain records of system prevents manipulation by independent floor efficiency, competition, and capital formation. 15 brokers. Telephone conversation between Mary U.S.C. 78c(f). 15 Subject to certain exemptions, Section 11(a) Anne Furlong, Director, Rule and Interpretive 13 See In the Matter of New York Stock Exchange, prohibits a member or member organization from Standards, NYSE, and Heather Traeger, Attorney, Inc., SEC Release No. 34–41574, June 29, 1999; executing on the Exchange an order for that Division, SEC, on July 16, 1999. Administrative Proceeding File No. 3–9925 (‘‘SEC member’s or member organization’s ‘‘own account’’ 8 17 CFR 240.18a–3. Ordeer’’). or any account in which the member or member 9 17 CFR 240.18a–4. 14 Id. organization has an interest. 15 U.S.C. 78k(a). VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56562 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices compensation arrangements will proposed change (SR–NYSE–98–47), as II. Self-Regulatory Organization’s facilitate the Exchange’s ability to amended, is approved. Statement of the Purpose of, and monitor independent floor broker For the Commission, by the Division of Statutory Basis for, the Proposed Rule activities, which may lack the internal Market Regulation, pursuant to delegated Change 19 safeguards in place at upstairs firms. authority. In its filing with the Commission, the The Commission finds good cause for Margaret H. McFarland, Exchange included statements approving Amendment No. 2 to Deputy Secretary. concerning the purpose of and basis for proposed rule change prior to the [FR Doc. 99–27369 Filed 10–19–99; 8:45 am] the proposed rule change and discussed thirtieth day after the date of BILLING CODE 8010±01±M any comments it received on the publication of notice of filing thereof in proposed rule change. The text of these the Federal Register. Amendment No. 2 statements may be examined at the revises the proposed rule text in SECURITIES AND EXCHANGE places specified in Item IV below. The Supplementary Material .10(a) to COMMISSION Exchange has prepared summaries, set exclude compensation arrangements forth in Sections A, B and C below, of involving gross compensation of less [Release No. 34±41994; File No. SR±PCX± the most significant aspects of such than $5,000, rather than the originally 99±34] statements. proposed level of $10,000. The Commission believes that the change in Self-Regulatory Organizations; Notice A. Self-Regulatory Organization’s the compensation threshold is of Filing and Immediate Effectiveness Statement of the Purpose of, and consistent with proposed Rule 440 I’s of Proposed Rule Change by the Statutory Basis for, the Proposed Rule intent to help the Exchange surveil for Pacific Exchange, Inc. Relating to Change potentially abusive compensation Market Maker Charges and Book 1. Purpose arrangements without adding an undue Charges burden of those firms required to keep The PCX proposes to make the records under the proposed rule. October 8, 1999. following changes to its Schedule of Fees and Charges for PCX services: Accordingly, the Commission finds that Pursuant to Section 19(b)(1) of the a. Market Maker Transaction Fee. The good cause exists, consistent with Securities Exchange Act of 1934 PCX currently charges Market Makers a Section 6(b)(5) 16 and Section 19b(b)(2) (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 17 transaction fee of $0.15 per contract side of the Act, to grant accelerated notice is hereby given that on August for equity and index options. The PCX approval of Amendment No. 2. 27, 1999, the Pacific Exchange, Inc. proposes to increase this fee to $0.185 IV. Solicitation of Comments (‘‘PCX’’ or ‘‘Exchange’’) filed with the per contract side to offset the loss in Securities and Exchange Commission Interested persons are invited to revenues anticipated to result from the (‘‘Commission’’ or ‘‘SEC’’) the proposed proposed elimination of the fees set submit written data, views and rule change as described in Items I, II arguments concerning Amendment No. forth in ‘‘b,’’ ‘‘c,’’ and ‘‘d’’ below. and III below, which Items have been b. Book Execution Fee. The PCX 2, including whether Amendment No. 2 prepared by the Exchange. On charges executing brokers a Book is consistent with the Act. Persons September 28, 1999, the PCX submitted Execution Fee of $0.20 per contract side making written submission should file to the Commission Amendment No. 1 to and an Accommodation/Liquidation six copies thereof with the Secretary, 3 the proposed rule change. The Transaction Fee of $0.10 per contract Securities and Exchange Commission, Commission is publishing this notice to side.4 The Book Execution Fee is 450 Fifth Street, N.W., Washington, D.C. solicit comments on the proposed rule assessed each time an order in the Book 20549–0609. Copies of the submission, change from interested persons. is executed; the Accommodation/ all subsequent amendments, all written Liquidation Fee is charged for so-called statements with respect to the proposed I. Self-Regulatory Organization’s ‘‘cabinet’’ trades in which the premium rule change that are filed with the Statement of the Terms of Substance of is less than 1⁄16.5 The PCX proposes to Commission, and all written the Proposed Rule Change eliminate its Book Execution and communications relating to the The PCX proposes to change its Accommodation/Liquidation proposed rule change between the Schedule of Fees and Charges for Transaction Fees. Commission and any person, other than Exchanges services by increasing Market c. Book Staff Entry Fee. The PCX those that may be withheld from the Maker transaction charges and charges its executing brokers a Book public in accordance with the eliminating Book Execution, Book Staff Staff Entry Fee, applied to orders provisions of 5 U.S.C. 552, will be Entry and Lead Market Maker (‘‘LMM’’) manually entered onto the Book by PCX available for inspection and copying at Book Program Staffing charges. The text staff, of $0.50 per entry.6 The PCX now the Commission’s Public Reference of the proposed rule change is attached proposes to eliminate this Fee. Room. Copies of such filing will also be as Exhibit A and is available at the available for inspection and copying at Exchange and at the Commission. 4 The executing broker may pass the fee on to its the principal office of the above- customer, or may absorb the fee itself, depending mentioned self-regulatory organization. on the broker’s contractual relationship with its 19 All submissions should refer to File No. 17 CFR 200.30–3(a)(12). customers. Telephone conservation between Robert 1 15 U.S.C. 78s(b)(1). Pacileo, Staff Attorney, Regulatory Affairs, PCX, SR–NYSE–98–47 and should be 2 17 CFR 240.19b–4. and Gordon Fuller, Special Counsel, and Marla submitted by November 10, 1999. 3 See Letter from Robert Pacileo, Staff Attorney, Chidsey, Law Clerk, Division of Market Regulation, Regulatory Affairs, PCX to Michael Walinskas, Commission (October 7, 1999). V. Conclusion Associated Director, Division of Market Regulation, 5 Telephone conservation between Robert Pacileo, It is therefore ordered, pursuant to Commission, dated September 27, 1999 Staff Attorney, Regulatory Affairs, PCX, and Gordon 18 (‘‘Amendment No. 1’’). Amendment No. 1 clarifies Fuller, Special Counsel, and Marla Chidsey, Law Section 19(b)(2) of the Act, that the the operation of the market maker and book charges Clerk, Division of Market Regulation, Commission affected by the proposed rule change. Because (September 9, 1999). 16 15 U.S.C. 78f(b)(5). Amendment No. 1 is substantive the Commission 6 As with the Book Execution and 17 15 U.S.C. 78f(b)(1). deems the date of the filing to be September 28, Accommodation/Liquidation Fees discussed above, 1999, the date the amendment was filed with the the executing broker may pass on the Book Staff 18 15 U.S.C. 78s(b)(2). Commission. Entry Fee to its customers. Supra note 4. VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56563 d. LMM Book Program Staffing III. Date of Effectiveness of the public in accordance with the Charges. The PCX charges its Lead Proposed Rule Change and Timing for provisions of 5 U.S.C. 552, will be Market Makers (‘‘LMM’’) for options Commission Action available for inspection and copying in contracts entered into the Book. Each The foregoing rule change has become the Commission’s Public Reference LMM is charged $0.05 per Book contract immediately effective pursuant to Room, 450 Fifth Street, N.W., for the first 15,000 contracts, $0.10 for Section 19(b)(3)(A) of the Act 11 and Washington, D.C. 20549–0609. Copies of 15,001 to 30,000 Book contracts, $0.15 Rule 19b–4(f)(6) under the Act 12 such filing will also be available for for the 30,001 to 55,000 Book contracts, because: inspection and copying at the principal and $0.10 for all Book contracts over (i) It does not significantly affect the office of the PCX. All submissions 55,000. These charges are applied to the protection of investors or the public interest; should refer to File No. SR–PCX–99–34 monthly total of all Book contracts in all (ii) It does not impose any significant and should be submitted by November burden on competition; and 10, 1999. options issues collectively traded by an (iii) By its terms, it does not become LMM under the program. The PCX operative for 30 days after the date of the For the Commission, by the Division of proposes to eliminate its Book Program filing, or such shorter time as the Market Regulation, pursuant to delegated 15 Staffing Charges. Commission may designate if consistent with authority. the protection of investors and the public Margaret H. McFarland, The PCX proposes these fee changes interest: provided that the self-regulatory Deputy Secretary. for several reasons. First, the PCX seeks organization has given the Commission to reduce charges consistent with the written notice of its intent to file the Exhibit A elimination of Book Execution and Book proposed rule change, along with a brief Text of the Proposed Rule Change: 16 Staff Entry Fees currently paid by description and text of the proposed rule executing brokers.7 Second, the change, at least five business days prior to PCX Options: Trade-Related Charges the date of filing of the proposed rule change, elimination of Book Execution and Book or such shorter time as designated by the Transactions Staff Entry Fees is intended to attract Commission. Customer $0.12 per contract side order flow to the PCX and make its rate In this regard, the Exchange provided Market Maker [$0.15 per contract side] schedule more competitive. Finally, the the Commission with written notice of $0.185 per contract side elimination of LMM Book Program its intent to file the proposed rule Firm Staffing Charges is consistent with the change, along with a brief description $0.085 per contract side where the elimination of the Book Execution and and text of the proposed rule change, at premium is less than $1 per Book Staff Entry Fees. PCX market least five business days before the date contract makers will pay an increased of the filing, as required by Rule 19b– $0.115 per contract side where the transaction fee to enable PCX to recoup 4(f)(6). 13 premium is $1 or more per contract revenues lost through elimination of the At any time within 60 days of the * * * * * three Book fees.8 filing of the proposed rule change, the [Book Execution Fee $0.20 per contract side 2. Statutory Basis Commission may summarily abrogate the proposed rule change if it appears to Charge for accommodation/ The Exchange represents that the the Commission that such action is liquidation transactions is $0.10 per proposed rule change is consistent with necessary or appropriate in the public contract. Section 6(b) of the Act,9 in general, and interest, for the protection of investors, Charge applies to book executions furthers the objectives of Section or otherwise in furtherance of the only and is in addition to the manual 14 6(b)(4),10 in particular, because it purposes of the Act. transaction charges listed above; market and marketable limit orders transacted provides for other equitable allocation IV. Solicitation of Comments of reasonable dues, fees and other through POETS do not receive this Interested persons are invited to charge.] charges among its members and issuers submit written data, views and and other persons using its facilities. * * * * * arguments concerning the foregoing, [Book Staff Entry $0.50 per entry (paid B. Self-Regulatory Organization’s including whether the proposed rule upon partial or full execution) change, as amended, is consistent with Statement on Burden on Competition Charge applies to orders manually the Act. Persons making written entered onto book; orders booked The Exchange represents that it does submissions should file six copies electronically via POETS do not receive not believe that the proposed rule thereof with the Secretary, Securities this charge.] change will impose any burden on and Exchange Commission, 450 Fifth competition that is not necessary or Street, N.W., Washington, D.C. 20549– * * * * * appropriate in furtherance of the 0609. Copies of the submission, all purposes of the Act. subsequent amendments, all written [LMM BOOK PROGRAM STAFFING statements with respect to the proposed CHARGE C. Self-Regulatory Organization’s rule change that are filed with the Statement on Comments on the Commission, and all written LMM monthly Charge per Maximum Proposed Rule Change Received From book con- charge per communications relating to the book contracts tract rate tier Members, Participants, or Others proposed rule change between the First 15,000 ...... $0.05 $750 The Exchange has neither solicited Commission and any person, other than those that may be withheld from the Next 15,000 ...... 0.10 1,500 nor received written comments on the Next 25,000 ...... 0.15 3,750 proposed rule change. 11 15 U.S.C. 78s(b)(3)(A). All contracts 12 17 CFR 240.19b–4(f)(6). above 55,000 0.10 (**) 7 Supra notes 4 and 6. 13 Id. 8 Id. 14 In reviewing this proposal, the Commission has 15 17 CFR 200.30-3(a)(12). 9 15 U.S.C. 78f(b). considered the proposal’s impact on efficiency, 16 New text is in italics. Deleted text is in 10 15 U.S.C. 78f(b)(4). competition and capital formation. 15 U.S.C. 78c(f). brackets. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56564 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices [LMM BOOK PROGRAM STAFFING Delegation of Authority 148–1, dated Section 3. General Provisions CHARGEÐContinued September 9, 1981, and Delegation of (a) As used in this delegation of Authority 198, dated September 16, authority, the word ‘‘function’’ includes 1992, Delegation of Authority 221, dated LMM monthly Charge per Maximum any duty, obligation, power, authority, book con- charge per April 3, 1998, is hereby amended to book contracts tract rate tier responsibility, right, privilege, read as follows: discretion, or activity. Book staffing charge is applied to the Delegation 221–1 (b) The parenthetical descriptions monthly total of all book contracts in all op- used in this delegation of authority are tion issues collectively traded by an LMM Section 1. Functions Delegated not meant as words of limitation. under the program.] By virtue of the authority vested in (c) This authority may only be re- * Pacific Options Exchange Trading system me by the Secretary of State in delegated to a Deputy Assistant ** No maximum. Delegation of Authority 148–1, dated Secretary of State for Personnel to the extent consistent with the law. [FR Doc. 99–27366 Filed 10–19–99; 8:45 am] September 9, 1981, and Delegation of Authority 198, dated September 16, (d) Notwithstanding any provisions of BILLING CODE 8010±01±M 1992, I hereby delegate to the Director this delegation of authority, the General of the Foreign Service and Secretary, the Deputy Secretary, and the Director of Personnel the authority Under Secretary of State for SOCIAL SECURITY ADMINISTRATION vested in me: Management may at any time exercise the functions herein delegated. Senior Executive Service Performance (a) To prescribe regulations arising (e) The exercise by the Director Review Board under the Foreign Service Act of 1980, the Civil Service Reform Act, and any General, or any person acting on behalf AGENCY: Social Security Administration. other laws administered by or relating to of the Director General, of the functions ACTION: Notice of Senior Executive the Bureau of Personnel and the Office prescribed herein, prior to the effective Service Performance Review Board of Medical Services: date of this Delegation of Authority is Membership. (b) To exercise the functions of the hereby confirmed and ratified. Secretary under: (f) An act, executive order, regulation Title 5, U.S. Code, Section 4314(c)(4) (1) Section 413 of the Foreign Service or procedure subject to, or affected by, of the Civil Service Reform Act of 1978, Act of 1980, as amended (relating to this delegation shall be deemed to be Public Law 95–454, requires that the payment of a death gratuity to surviving such act, executive order, regulation or appointment of Performance Review dependents of any Foreign Service procedure as amended from time to Board members be published in the employee who dies as a result of time. Federal Register. injuries sustained in the performance of (g) This Delegation of Authority The following persons will serve on duty abroad); supersedes any prior delegation on this the Performance Review Board which (2) Section 605(b) of the Foreign subject to the extent such delegation oversees the evaluation of performance Service Act of 1980, as amended may be inconsistent herewith. appraisals of Senior Executive Service (relating to removing names from rank Delegation of Authority 221–1 is to be members of the Social Security order lists of delaying promotions); published in the Federal Register. Administration: (3) Section 607(b) of the Foreign Dated: October 1, 1999. Andria Childs Service Act of 1980, as amended Bonnie R. Cohen, Eli N. Donkar (relating to limited career extensions); Under Secretary of State for Management. Glennalee K. Donnelly (4) Section 609(b)(1) of the Foreign [FR Doc. 99–27409 Filed 10–19–99; 8:45 am] Keith J. Fontenot Service Act of 1980, as amended BILLING CODE 4710±15±P Philip A. Gambino (relating to accelerating or combining Diane B. Garro installments); Richard J. Gonzalez (5) Section 808 of the Foreign Service DEPARTMENT OF TRANSPORTATION Charlotte A. Hardnett Act of 1980, as amended (relating to W. Burnell Hurt disability retirement and related National Highway Traffic Safety Carmen M. Keller determinations); Administration Carolyn J. Shearin-Jones (6) Section 901(6) of the Foreign Miguel A. Torrado Service Act of 1980, as amended [Docket No. NHTSA±99±6350] (relating to rest and recuperation travel, Judy Ziolkowski Notice of Receipt of Petition for including extraordinary rest and Dated: September 23, 1999. Decision That Nonconforming 1978± recuperation travel); 1980 Toyota Land Cruiser Multi- Paul D. Barnes, (7) Section 901(8) of the Foreign Purpose Passenger Vehicles Are Deputy Commissioner for Human Resources. Service Act of 1980, as amended Eligible for Importation [FR Doc. 99–27407 Filed 10–19–99; 8:45 am] (relating to designation of posts as BILLING CODE 4190±29±P imminent danger areas from which AGENCY: National Highway Traffic family visitation travel is permitted); Safety Administration, DOT. (8) 5 U.S.C. 5753 and 5754 (relating to ACTION: Notice of receipt of petition for DEPARTMENT OF STATE recruitment and relocation bonuses and decision that nonconforming 1978–1980 [Amendment of Delegation of Authority 221] retention allowances). Toyota Land Cruiser multi-purpose Section 2. Delegations Revoked passenger vehicles (MPVs) are eligible Delegation of Authority 221±1; Director for importation. of Foreign Service and Director of Delegations of Authority No. 224, Personnel dated September 2, 1998, and SUMMARY: This notice announces receipt Delegation of Authority No. 132, dated by the National Highway Traffic Safety By virtue of the authority vested in July 8, 1975, 40 Federal Register 28646, Administration (NHTSA) of a petition me by the Secretary of State in are hereby revoked. for a decision that 1978–1980 Toyota VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56565 Land Cruiser MPVs that were not eligible for importation into the United assemblies that incorporate headlamps originally manufactured to comply with States. The vehicles which Champagne with DOT markings; (b) installation of all applicable Federal motor vehicle believes are substantially similar are U.S.-model front and rear sidemarker/ safety standards are eligible for 1978–1980 Toyota Land Cruisers that reflector assemblies; (c) installation of importation into the United States were manufactured for importation into, U.S.-model taillamp assemblies. because (1) they are substantially and sale in the United States and Standard No. 111 Rearview Mirror: similar to vehicles that were originally certified by their manufacturer, Toyota replacement of the passenger side manufactured for importation into, and Motor Corporation, as conforming to all rearview mirror with a U.S.-model sale in the United States and that were applicable Federal motor vehicle safety component. certified by their manufacturer as standards. Standard No. 114 Theft Protection: complying with the safety standards, The petitioner claims that it carefully installation of a warning buzzer and (2) they are capable of being readily compared the non-U.S. certified 1978– microswitch in the steering lock altered to conform to the standards. 1980 Toyota Land Cruisers to their U.S. assembly and a warning buzzer. Standard No. 118 Power Window DATE: The closing date for comments on certified counterparts, and found the the petition is November 19, 1999. vehicles to be substantially similar with Systems: rewiring of the power window respect to compliance with most Federal system on vehicles that are so equipped ADDRESS: Comments should refer to the motor vehicle safety standards. so that the window transport is docket number and notice number, and Champagne submitted information inoperative when the ignition is be submitted to: Docket Management, with its petition intended to switched off. Room PL–401, 400 Seventh St., SW, demonstrate that the non-U.S. certified Standard No. 120 Tire Selection and Washington, DC 20590. [Docket hours 1978–1980 Toyota Land Cruisers, as Rims for Motor Vehicles other than are from 9 am to 5 pm]. originally manufactured, conform to Passenger Cars: installation of a tire FOR FURTHER INFORMATION CONTACT: many Federal motor vehicle safety information placard. George Entwistle, Office of Vehicle standards in the same manner as their Standard No. 208 Occupant Crash Safety Compliance, NHTSA (202–366– U.S. certified counterparts, or are Protection: (a) Installation of a U.S.- 5306). capable of being readily altered to model seat belt in the driver’s position, SUPPLEMENTARY INFORMATION: conform to those standards. or a belt webbing-actuated microswitch Specifically, the petitioner claims that inside the driver’s seat belt retractor; (b) Background the non-U.S. certified 1978–1980 Toyota installation of an ignition switch- Under 49 U.S.C. 30141(a)(1)(A), a Land Cruisers are identical to their U.S. actuated seat belt warning lamp and motor vehicle that was not originally certified counterparts with respect to buzzer. The petitioner states that the manufactured to conform to all compliance with Standards Nos. 102 vehicles are equipped with combination applicable Federal motor vehicle safety Transmission Shift Lever lap and shoulder restraints that adjust standards shall be refused admission Sequence . . . ., 103 Defrosting and by means of an automatic retractor and into the United States unless NHTSA Defogging Systems, 104 Windshield release by means of a single push button has decided that the motor vehicle is Wiping and Washing Systems, 105 at both front designated seating substantially similar to a motor vehicle Hydraulic Brake Systems, 106 Brake positions, with combination lap and originally manufactured for importation Hoses, 113 Hood Latch Systems, 116 shoulder restraints that release by into and sale in the United States, Brake Fluid, 119 New Pneumatic Tires means of a single push button at both certified under 49 U.S.C. 30115, and of for Vehicles other than Passenger Cars, rear outboard designated seating the same model year as the model of the 124 Accelerator Control Systems, 201 positions, and with a lap belt in the rear motor vehicle to be compared, and is Occupant Protection in Interior Impact, center designated seating position. capable of being readily altered to 203 Impact Protection for the Driver Standard No. 301 Fuel System conform to all applicable Federal motor from the Steering Control System, 204 Integrity: installation of a rollover valve vehicle safety standards. Steering Control Rearward in the fuel tank vent line between the Petitions for eligibility decisions may Displacement, 205 Glazing Materials, fuel tank and the evaporative emissions be submitted by either manufacturers or 206 Door Locks and Door Locking collection canister. importers who have registered with Components, 207 Seating Systems, 209 The petitioner also states that a NHTSA pursuant to 49 CFR part 592. As Seat Belt Assemblies, 210 Seat Belt vehicle identification number plate specified in 49 CFR 593.7, NHTSA Assembly Anchorages, 212 Windshield must be affixed to the vehicles to meet publishes notice in the Federal Register Retention, 219 Windshield Zone the requirements of 49 CFR part 565. of each petition that it receives, and Intrusion, and 302 Flammability of Interested persons are invited to affords interested persons an Interior Materials. submit comments on the petition opportunity to comment on the petition. Petitioner also contends that the described above. Comments should refer At the close of the comment period, vehicles are capable of being readily to the docket number and be submitted NHTSA decides, on the basis of the altered to meet the following standards, to: Docket Management, Room PL–401, petition and any comments that it has in the manner indicated: 400 Seventh St., SW, Washington, DC received, whether the vehicle is eligible Standard No. 101 Controls and 20590. [Docket hours are from 10 am to for importation. The agency then Displays: (a) Substitution of a lens 5 pm]. It is requested but not required publishes this decision in the Federal marked ‘‘Brake’’ for a lens with a that 10 copies be submitted. Register. noncomplying symbol on the brake All comments received before the Champagne Imports, Inc. of Lansdale, failure indicator lamp; (b) installation of close of business on the closing date Pennsylvania (‘‘Champagne’’) a seat belt warning lamp that displays indicated above will be considered, and (Registered Importer 90–009) has the appropriate symbol; (c) recalibration will be available for examination in the petitioned NHTSA to decide whether of the speedometer/odometer from docket at the above address both before 1978–1980 Toyota Land Cruisers that kilometers to miles per hour. and after that date. To the extent were not originally manufactured to Standard No. 108 Lamps, Reflective possible, comments filed after the comply with all applicable Federal Devices and Associated Equipment: (a) closing date will also be considered. motor vehicle safety standards are Installation of U.S.-model headlamp Notice of final action on the petition VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56566 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices will be published in the Federal applicable Federal motor vehicle safety 111 Rearview Mirrors, 116 Brake Fluid, Register pursuant to the authority standards shall be refused admission 119 New Pneumatic Tires for Vehicles indicated below. into the United States unless NHTSA other than Passenger Cars, and 122 Authority: 49 U.S.C. 30141(a)(1)(A) and has decided that the motor vehicle is Motorcycle Brake Systems. (b)(1); 49 CFR 593.8; delegations of authority substantially similar to a motor vehicle Petitioner additionally contends that at 49 CFR 1.50 and 501.8. originally manufactured for importation the vehicles are capable of being readily Issued on: October 13, 1999. into and sale in the United States, altered to meet the following standard, in the manner indicated: Marilynne Jacobs, certified under 49 U.S.C. 30115, and of the same model year as the model of the Standard No. 108 Lamps, Reflective Director, Office of Vehicle Safety Compliance. motor vehicle to be compared, and is Devices and Associated Equipment: (a) [FR Doc. 99–27316 Filed 10–19–99; 8:45 am] capable of being readily altered to installation of U.S.-model head lamp BILLING CODE 4910±59±P conform to all applicable Federal motor assemblies; and (b) installation of U.S.- vehicle safety standards. model side reflex reflectors. Petitions for eligibility decisions may Standard No. 120 Tire Selection and DEPARTMENT OF TRANSPORTATION be submitted by either manufacturers or Rims for Vehicles other than Passenger importers who have registered with Cars: installation of a tire information National Highway Traffic Safety label. Administration NHTSA pursuant to 49 CFR Part 592. As specified in 49 CFR 593.7, NHTSA Standard No. 123 Motorcycle Controls [Docket No. NHTSA±99±6347] publishes notice in the Federal Register and Displays: installation of a U.S.- of each petition that it receives, and model speedometer/odometer calibrated Notice of Receipt of Petition for affords interested persons an in miles per hour. Decision That Nonconforming 2000 opportunity to comment on the petition. The petitioner also states that a Harley Davidson FX, FL, and XL At the close of the comment period, vehicle identification number plate will Motorcycles Are Eligible for NHTSA decides, on the basis of the be affixed to the vehicle to meet the Importation petition and any comments that it has requirements of 49 CFR 565. received, whether the vehicle is eligible Comments should refer to the docket AGENCY: National Highway Traffic number and be submitted to: Docket Safety Administration, DOT. for importation. The agency then publishes this decision in the Federal Management, Room PL–401, 400 ACTION: Notice of receipt of petition for Register. Seventh Street, SW, Washington, DC decision that nonconforming 2000 Champagne Imports of Lansdale, 20590. It is requested but not required Harley Davidson FX, FL, and XL Pennsylvania (‘‘Champagne’’) that 10 copies be submitted. motorcycles are eligible for importation. (Registered Importer 90–009) has All comments received before the close of business on the closing date SUMMARY: This document announces petitioned NHTSA to decide whether non-U.S. certified 2000 Harley Davidson indicated above will be considered, and receipt by the National Highway Traffic will be available for examination in the Safety Administration (NHTSA) of a FX, FL, and XL motorcycles are eligible for importation into the United States. docket at the above address both before petition for a decision that 2000 Harley and after that date. To the extent Davidson FX, FL, and XL motorcycles The vehicles which Champagne believes are substantially similar are 2000 Harley possible, comments filed after the that were not originally manufactured to closing date will also be considered. comply with all applicable Federal Davidson FX, FL, and XL motorcycles that were manufactured for and sale in Notice of final action on the petition motor vehicle safety standards are will be published in the Federal eligible for importation into the United the United States and certified by their manufacturer as conforming to all Register pursuant to the authority States because (1) They are substantially indicated below. similar to vehicles that were originally applicable Federal motor vehicle safety manufactured for sale in the United standards. Authority: 49 U.S.C. 30141(a)(1)(A) and The petitioner claims that it carefully (b)(1); 49 CFR 593.8; delegations of authority States and that were certified by their at 49 CFR 1.50 and 501.8. manufacturer as complying with the compared non-U.S. certified 2000 safety standards, and (2) They are Harley Davidson FX, FL, and XL Issued on: October 13, 1999. capable of being readily altered to motorcycles to their U.S. certified Marilynne Jacobs, conform to the standards. counterparts, and found the vehicles to Director, Office of Vehicle Safety Compliance. be substantially similar with respect to DATES: The closing date for comments [FR Doc. 99–27317 Filed 10–19–99; 8:45 am] compliance with most Federal motor BILLING CODE 4910±59±P on the petition is November 19, 1999. vehicle safety standards. ADDRESSES: Comments should refer to Champagne submitted information the docket number and notice number, with its petition intended to DEPARTMENT OF TRANSPORTATION and be submitted to: Docket demonstrate that non-U.S. certified 2000 Management, Room PL–401, 400 Harley Davidson FX, FL, and XL National Highway Traffic Safety Seventh St., SW, Washington, DC motorcycles, as originally Administration 20590. [Docket hours are from 10 am to manufactured, conform to many Federal [Docket No. NHTSA±99±6348] 5 pm.] motor vehicle safety standards in the FOR FURTHER INFORMATION CONTACT: same manner as their U.S. certified Notice of Receipt of Petition for George Entwistle, Office of Vehicle counterparts, or are capable of being Decision That Nonconforming 1998± Safety Compliance, NHTSA (202–366– readily altered to conform to those 1999 Mercedes-Benz S Class 5306). standards. Passenger Cars Are Eligible for SUPPLEMENTARY INFORMATION: Specifically, the petitioner claims that Importation non-U.S. certified 2000 Harley Davidson Background FX, FL, and XL motorcycles are AGENCY: National Highway Traffic Under 49 U.S.C. 30141(a)(1)(A), a identical to their U.S. certified Safety Administration, DOT. motor vehicle that was not originally counterparts with respect to compliance ACTION: Notice of receipt of petition for manufactured to conform to all with Standard Nos. 106 Brake Hoses, decision that nonconforming 1998–1999 VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56567 Mercedes-Benz S Class passenger cars publishes this decision in the Federal Standard No. 101 Controls and are eligible for importation. Register. Displays: (a) Substitution of a lens J.K. Technologies, LLC. of Baltimore, marked ‘‘Brake’’ for a lens with a SUMMARY: This document announces Maryland (‘‘J.K.’’) (Registered Importer noncomplying symbol on the brake receipt by the National Highway Traffic 90–006) has petitioned NHTSA to failure indicator lamp; (b) Safety Administration (NHTSA) of a decide whether 1998–1999 Mercedes- Reprogramming of the electronic petition for a decision that 1998–1999 Benz S Class passenger cars are eligible speedometer to read in miles per hour. Mercedes-Benz S Class passenger cars for importation into the United States. Standard No. 108 Lamps, Reflective that were not originally manufactured to The vehicles which J.K. believes are Devices and Associated Equipment: (a) comply with all applicable Federal substantially similar are 1998–1999 Installation of U.S.-model headlamps motor vehicle safety standards are Mercedes-Benz S Class passenger cars and front sidemarker lamps; (b) eligible for importation into the United that were manufactured for importation Installation of U.S.-model taillamp States because (1) They are substantially into, and sale in, the United States and assemblies which incorporate rear similar to vehicles that were originally certified by their manufacturer as sidemarker lights; (c) Installation of a manufactured for importation into and conforming to all applicable Federal U.S.-model high mounted stop lamp. sale in the United States and that were motor vehicle safety standards. Standard No. 110 Tire Selection and certified by their manufacturer as The petitioner claims that it carefully Rims: installation of a tire information complying with the safety standards, compared non-U.S. certified 1998–1999 placard. and (2) They are capable of being Mercedes-Benz S Class passenger cars to Standard No. 111 Rearview Mirror: readily altered to conform to the their U.S.-certified counterparts, and replacement of the passenger side standards. found the vehicles to be substantially rearview mirror with a U.S.-model DATES: The closing date for comments similar with respect to compliance with component. Standard No. 114 Theft Protection: on the petition is November 19, 1999. most Federal motor vehicle safety standards. installation of a warning buzzer and a ADDRESSES: Comments should refer to warning buzzer microswitch in the the docket number and notice number, J.K. submitted information with its petition intended to demonstrate that steering lock assembly. and be submitted to: Docket Standard No. 118 Power Window non-U.S. certified 1998–1999 Mercedes- Management, Room PL–401, 400 Systems: installation of a relay in the Benz S Class passenger cars, as Seventh St., SW, Washington, DC power window system so that the originally manufactured, conform to 20590. [Docket hours are from 9 am to window transport is inoperative when many Federal motor vehicle safety 5 pm.] the ignition is switched off. standards in the same manner as their Standard No. 208 Occupant Crash FOR FURTHER INFORMATION CONTACT: U.S. certified counterparts, or are George Entwistle, Office of Vehicle Protection: (a) Installation of a safety capable of being readily altered to belt warning buzzer, wired to the Safety Compliance, NHTSA (202–366– conform to those standards. 5306). driver’s seat belt latch; (b) Replacement Specifically, the petitioner claims that of the driver’s and passenger’s side air SUPPLEMENTARY INFORMATION: non-U.S. certified 1998–1999 Mercedes- bags, control units, sensors, seat belts Background Benz S Class passenger cars are and knee bolsters with U.S.-model identical to their U.S. certified components on vehicles that are not Under 49 U.S.C. § 30141(a)(1)(A), a counterparts with respect to compliance already so equipped. The petitioner motor vehicle that was not originally with Standard Nos. 102 Transmission states that the vehicles are equipped at manufactured to conform to all Shift Lever Sequence . . . ., 103 the front and rear outboard seating applicable Federal motor vehicle safety Defrosting and Defogging Systems, 104 positions with combination lap and standards shall be refused admission Windshield Wiping and Washing shoulder belts that are self tensioning into the United States unless NHTSA Systems, 105 Hydraulic Brake Systems, and capable of being released by means has decided that the motor vehicle is 106 Brake Hoses, 109 New Pneumatic of a single red push-button, and with a substantially similar to a motor vehicle Tires, 113 Hood Latch Systems, 116 lap belt in the rear center designated originally manufactured for importation Brake Fluid, 124 Accelerator Control seating position. into and sale in the United States, Systems, 201 Occupant Protection in Standard No. 214 Side Impact certified under 49 U.S.C. 30115, and of Interior Impact, 202 Head Restraints, Protection: installation of U.S.-model the same model year as the model of the 204 Steering Control Rearward doorbars in vehicles that are not already motor vehicle to be compared, and is Displacement, 205 Glazing Materials, so equipped. capable of being readily altered to 206 Door Locks and Door Retention The petitioner also states that a conform to all applicable Federal motor Components, 207 Seating Systems, 209 vehicle identification plate must be vehicle safety standards. Seat Belt Assemblies, 210 Seat Belt affixed to the vehicle near the left Petitions for eligibility decisions may Assembly Anchorages, 212 Windshield windshield post and a reference and be submitted by either manufacturers or Retention, 216 Roof Crush Resistance, certification label must be affixed in the importers who have registered with 219 Windshield Zone Intrusion, 301 area of the left front door post to meet NHTSA pursuant to 49 CFR 592. As Fuel System Integrity, and 302 the requirements of 49 CFR 565. specified in 49 CFR 593.7, NHTSA Flammability of Interior Materials. Additionally, the petitioner states that publishes notice in the Federal Register Additionally, the petitioner states that all vehicles will be inspected prior to of each petition that it receives, and non-U.S. certified 1998–1999 Mercedes- importation to ensure that they have the affords interested persons an Benz S Class passenger cars comply requisite part markings to comply with opportunity to comment on the petition. with the Bumper Standard found in 49 the Theft Prevention Standard at 49 CFR At the close of the comment period, CFR 581. 541 and that markings will be added to NHTSA decides, on the basis of the Petitioner also contends that the vehicles where needed. petition and any comments that it has vehicles are capable of being readily Interested persons are invited to received, whether the vehicle is eligible altered to meet the following standards, submit comments on the petition for importation. The agency then in the manner indicated: described above. Comments should refer VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56568 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices to the docket number and be submitted ADDRESSES: Comments should refer to J.K. submitted information with its to: Docket Management, Room PL–401, the docket number and notice number, petition intended to demonstrate that 400 Seventh St., SW, Washington, DC and be submitted to: Docket non-U.S. certified 1993–1996 Mercedes- 20590. [Docket hours are from 9 am to Management, Room PL–401, 400 Benz SL Series passenger cars, as 5 pm.] It is requested but not required Seventh St., SW, Washington, DC originally manufactured, conform to that 10 copies be submitted. 20590. [Docket hours are from 9 am to many Federal motor vehicle safety All comments received before the 5 pm]. standards in the same manner as their close of business on the closing date FOR FURTHER INFORMATION CONTACT: U.S. certified counterparts, or are indicated above will be considered, and George Entwistle, Office of Vehicle capable of being readily altered to will be available for examination in the Safety Compliance, NHTSA (202–366– conform to those standards. docket at the above address both before 5306). Specifically, the petitioner claims that and after that date. To the extent SUPPLEMENTARY INFORMATION: non-U.S. certified 1993–1996 Mercedes- possible, comments filed after the Benz SL Series passenger cars are closing date will also be considered. Background identical to their U.S. certified Notice of final action on the petition Under 49 U.S.C. 30141(a)(1)(A), a counterparts with respect to compliance will be published in the Federal motor vehicle that was not originally with Standard Nos. 102 Transmission Register pursuant to the authority manufactured to conform to all Shift Lever Sequence . . . ., 103 indicated below. applicable Federal motor vehicle safety Defrosting and Defogging Systems, 104 Authority: 49 U.S.C. 30141(a)(1)(A) and standards shall be refused admission Windshield Wiping and Washing (b)(1); 49 CFR 593.8; delegations of authority into the United States unless NHTSA Systems, 105 Hydraulic Brake Systems, at 49 CFR 1.50 and 501.8. has decided that the motor vehicle is 106 Brake Hoses, 109 New Pneumatic Tires, 113 Hood Latch Systems, 116 Issued on: October 14, 1999. substantially similar to a motor vehicle Brake Fluid, 124 Accelerator Control Marilynne Jacobs, originally manufactured for importation into and sale in the United States, Systems, 201 Occupant Protection in Director, Office of Vehicle Safety Compliance. certified under 49 U.S.C. 30115, and of Interior Impact, 202 Head Restraints, [FR Doc. 99–27318 Filed 10–19–99; 8:45 am] the same model year as the model of the 204 Steering Control Rearward BILLING CODE 4910±59±P motor vehicle to be compared, and is Displacement, 205 Glazing Materials, capable of being readily altered to 206 Door Locks and Door Retention Components, 207 Seating Systems, 209 DEPARTMENT OF TRANSPORTATION conform to all applicable Federal motor vehicle safety standards. Seat Belt Assemblies, 210 Seat Belt Assembly Anchorages, 212 Windshield National Highway Traffic Safety Petitions for eligibility decisions may Retention, 216 Roof Crush Resistance, Administration be submitted by either manufacturers or importers who have registered with 219 Windshield Zone Intrusion, 301 [Docket No. NHTSA±99±6349] NHTSA pursuant to 49 CFR Part 592. As Fuel System Integrity, and 302 specified in 49 CFR 593.7, NHTSA Flammability of Interior Materials. Notice of Receipt of Petition for publishes notice in the Federal Register Additionally, the petitioner states that Decision That Nonconforming 1993± of each petition that it receives, and non-U.S. certified 1993–1996 Mercedes- 1996 Mercedes-Benz SL Series affords interested persons an Benz SL Series passenger cars comply Passenger Cars Are Eligible for opportunity to comment on the petition. with the Bumper Standard found in 49 Importation At the close of the comment period, CFR 581. NHTSA decides, on the basis of the Petitioner also contends that the AGENCY: National Highway Traffic petition and any comments that it has vehicles are capable of being readily Safety Administration, DOT. received, whether the vehicle is eligible altered to meet the following standards, ACTION: Notice of receipt of petition for for importation. The agency then in the manner indicated: decision that nonconforming 1993–1996 publishes this decision in the Federal Standard No. 101 Controls and Mercedes-Benz SL Series passenger cars Register. Displays: (a) Substitution of a lens are eligible for importation. J.K. Technologies, LLC. of Baltimore, marked ‘‘Brake’’ for a lens with a Maryland (‘‘J.K.’’)(Registered Importer noncomplying symbol on the brake SUMMARY: This document announces 90–006) has petitioned NHTSA to failure indicator lamp; (b) Replacement receipt by the National Highway Traffic decide whether 1993–1996 Mercedes- of the speedometer with one calibrated Safety Administration (NHTSA) of a Benz SL Series passenger cars are in miles per hour. petition for a decision that 1993–1996 eligible for importation into the United Standard No. 108 Lamps, Reflective Mercedes-Benz SL Series passenger cars States. The vehicles which J.K. believes Devices and Associated Equipment: (a) that were not originally manufactured to are substantially similar are 1993–1996 Installation of U.S.-model headlamps comply with all applicable Federal Mercedes-Benz SL Series passenger cars and front sidemarker lamps; (b) motor vehicle safety standards are that were manufactured for importation Installation of U.S.-model taillamp eligible for importation into the United into, and sale in, the United States and assemblies which incorporate rear States because (1) They are substantially certified by their manufacturer as sidemarker lights; (c) Installation of a similar to vehicles that were originally conforming to all applicable Federal U.S.-model high mounted stop lamp. manufactured for importation into and motor vehicle safety standards. Standard No. 110 Tire Selection and sale in the United States and that were The petitioner claims that it carefully Rims: installation of a tire information certified by their manufacturer as compared non-U.S. certified 1993–1996 placard. complying with the safety standards, Mercedes-Benz SL Series passenger cars Standard No. 111 Rearview Mirror: and (2) They are capable of being to their U.S.-certified counterparts, and replacement of the passenger side readily altered to conform to the found the vehicles to be substantially rearview mirror with a U.S.-model standards. similar with respect to compliance with component. DATES: The closing date for comments most Federal motor vehicle safety Standard No. 114 Theft Protection: on the petition is November 19, 1999. standards. installation of a warning buzzer and a VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56569 warning buzzer microswitch in the Issued on: October 14, 1999. certified under 49 U.S.C. 30115, and of steering lock assembly. Marilynne Jacobs, the same model year as the model of the Standard No. 118 Power Window Director, Office of Vehicle Safety Compliance. motor vehicle to be compared, and is Systems: installation of a relay in the [FR Doc. 99–27319 Filed 10–19–99; 8:45 am] capable of being readily altered to conform to all applicable Federal motor power window system so that the BILLING CODE 4910±59±P window transport is inoperative when vehicle safety standards. Petitions for eligibility decisions may the ignition is switched off. DEPARTMENT OF TRANSPORTATION be submitted by either manufacturers or Standard No. 208 Occupant Crash importers who have registered with Protection: (a) Installation of a safety National Highway Traffic Safety NHTSA pursuant to 49 CFR part 592. As belt warning buzzer, wired to the Administration specified in 49 CFR 593.7, NHTSA driver’s seat belt latch; (b) Replacement publishes notice in the Federal Register of the driver’s and passenger’s side air [Docket No. NHTSA±99±6351] of each petition that it receives, and bags, control units, sensors, seat belts affords interested persons an and knee bolsters with U.S.-model Notice of Receipt of Petition for opportunity to comment on the petition. components on vehicles that are not Decision That Nonconforming 1994± At the close of the comment period, already so equipped. The petitioner 1999 Mercedes-Benz E320 Station NHTSA decides, on the basis of the states that the vehicles are equipped at Wagons Are Eligible for Importation petition and any comments that it has the front and rear outboard seating AGENCY: National Highway Traffic received, whether the vehicle is eligible positions with combination lap and Safety Administration, DOT. for importation. The agency then publishes this decision in the Federal shoulder belts that are self tensioning ACTION: Notice of receipt of petition for Register. and capable of being released by means decision that nonconforming 1994–1999 of a single red push-button, and with a J.K. Motors of Baltimore, Maryland Mercedes-Benz E320 station wagons are (‘‘J.K.’’) (Registered Importer 90–006) lap belt in the rear center designated eligible for importation. seating position. has petitioned NHTSA to decide SUMMARY: This document announces whether 1994–1999 Mercedes-Benz Standard No. 214 Side Impact E320 station wagons are eligible for Protection: installation of U.S.-model receipt by the National Highway Traffic Safety Administration (NHTSA) of a importation into the United States. The doorbars in vehicles that are not already vehicles which J.K. believes are so equipped. petition for a decision that 1994–1999 Mercedes-Benz E320 station wagons substantially similar are 1994–1999 The petitioner also states that a that were not originally manufactured to Mercedes-Benz E320 station wagons vehicle identification plate must be comply with all applicable Federal that were manufactured for importation affixed to the vehicle near the left motor vehicle safety standards are into, and sale in, the United States and windshield post and a reference and eligible for importation into the United certified by their manufacturer as certification label must be affixed in the States because (1) they are substantially conforming to all applicable Federal area of the left front door post to meet similar to vehicles that were originally motor vehicle safety standards. the requirements of 49 CFR 565. manufactured for importation into and The petitioner claims that it carefully sale in the United States and that were compared non-U.S. certified 1994–1999 Additionally, the petitioner states that Mercedes-Benz E320 station wagons to all vehicles will be inspected prior to certified by their manufacturer as complying with the safety standards, their U.S.-certified counterparts, and importation to ensure that they have the found the vehicles to be substantially and (2) they are capable of being readily requisite part markings to comply with similar with respect to compliance with altered to conform to the standards. the Theft Prevention Standard at 49 CFR most Federal motor vehicle safety 541. DATES: The closing date for comments standards. Interested persons are invited to on the petition is November 19, 1999. J.K. submitted information with its submit comments on the petition ADDRESSES: Comments should refer to petition intended to demonstrate that described above. Comments should refer the docket number and notice number, non-U.S. certified 1994–1999 Mercedes- to the docket number and be submitted and be submitted to: Docket Benz E320 station wagons, as originally to: Docket Management, Room PL–401, Management, Room PL–401, 400 manufactured, conform to many Federal 400 Seventh St., SW, Washington, DC Seventh St., SW, Washington, DC motor vehicle safety standards in the 20590. [Docket hours are from 9 am to 20590. [Docket hours are from 9 am to same manner as their U.S. certified 5 pm]. It is requested but not required 5 pm]. counterparts, or are capable of being that 10 copies be submitted. FOR FURTHER INFORMATION CONTACT: readily altered to conform to those George Entwistle, Office of Vehicle standards. All comments received before the Safety Compliance, NHTSA (202–366– Specifically, the petitioner claims that close of business on the closing date 5306). non-U.S. certified 1994–1999 Mercedes- indicated above will be considered, and SUPPLEMENTARY INFORMATION: Benz E320 station wagons are identical will be available for examination in the to their U.S. certified counterparts with docket at the above address both before Background respect to compliance with Standard and after that date. To the extent Under 49 U.S.C. 30141(a)(1)(A), a Nos. 102 Transmission Shift Lever possible, comments filed after the motor vehicle that was not originally Sequence * * *, 103 Defrosting and closing date will also be considered. manufactured to conform to all Defogging Systems, 104 Windshield Notice of final action on the petition applicable Federal motor vehicle safety Wiping and Washing Systems, 105 will be published in the Federal standards shall be refused admission Hydraulic Brake Systems, 106 Brake Register pursuant to the authority into the United States unless NHTSA Hoses, 109 New Pneumatic Tires, 113 indicated below. has decided that the motor vehicle is Hood Latch Systems, 116 Brake Fluid, Authority: 49 U.S.C. 30141(a)(1)(A) and substantially similar to a motor vehicle 124 Accelerator Control Systems, 201 (b)(1); 49 CFR 593.8; delegations of authority originally manufactured for importation Occupant Protection in Interior Impact, at 49 CFR 1.50 and 501.8. into and sale in the United States, 202 Head Restraints, 204 Steering VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56570 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Control Rearward Displacement, 205 Standard No. 214 Side Impact prevention. Participation from all Glazing Materials, 206 Door Locks and Protection: Installation of U.S.-model stakeholder organizations in the damage Door Retention Components, 207 doorbars in vehicles that are not already prevention community will be Seating Systems, 209 Seat Belt so equipped. necessary to ensure the most effective Assemblies, 210 Seat Belt Assembly The petitioner also states that a forum to share information. Interested Anchorages, 212 Windshield Retention, vehicle identification plate must be parties include excavators, facility 216 Roof Crush Resistance, 219 affixed to the vehicle near the left locators, railroads, local, state and Windshield Zone Intrusion, 301 Fuel windshield post and a reference and federal government agencies, and System Integrity, and 302 Flammability certification label must be affixed in the owners and operators of underground of Interior Materials. area of the left front door post to meet facilities, as well as the general public. Additionally, the petitioner states that the requirements of 49 CFR part 565. DATES: The public meeting will be held non-U.S. certified 1994–1999 Mercedes- Additionally, the petitioner states that on Thursday, October 28, 1999, from Benz E320 station wagons comply with all vehicles will be inspected prior to 9:00 am to 4:30 pm. importation to ensure that they are the Bumper Standard found in 49 CFR ADDRESSES: The public meeting will be part 581. equipped with anti-theft devices that held at the Omni Inner Harbor Hotel, Petitioner also contends that the comply with the Theft Prevention 101 West Fayette Street, Baltimore, MD vehicles are capable of being readily Standard at 49 CFR part 541. 21202. A block of rooms is being held altered to meet the following standards, Interested persons are invited to for the ‘‘U.S. DOT Damage Prevention in the manner indicated: submit comments on the petition Meeting.’’ Standard No. 101 Controls and described above. Comments should refer Displays: (a) Substitution of a lens to the docket number and be submitted FOR FURTHER INFORMATION CONTACT: marked ‘‘Brake’’ for a lens with a to: Docket Management, Room PL–401, Eben M. Wyman, (202) 366–0918, or by noncomplying symbol on the brake 400 Seventh St., SW, Washington, DC e-mail at [email protected], failure indicator lamp; (b) replacement 20590. (Docket hours are from 9 am to regarding the subject matter of this of the speedometer with one calibrated 5 pm). It is requested but not required notice. in miles per hour. that 10 copies be submitted. Information on Services for Individuals Standard No. 108 Lamps, Reflective All comments received before the With Disabilities Devices and Associated Equipment: (a) close of business on the closing date For information on facilities or Installation of U.S.-model headlamps indicated above will be considered, and services for individuals with disabilities and front sidemarker lamps; (b) will be available for examination in the or to request special assistance at the installation of U.S.-model taillamp docket at the above address both before meetings, contact Eben Wyman at the assemblies which incorporate rear and after that date. To the extent address or phone number listed under sidemarker lights; (c) installation of a possible, comments filed after the FOR FURTHER INFORMATION CONTACT as U.S.-model high mounted stop lamp on closing date will also be considered. soon as possible. vehicles that are not already so Notice of final action on the petition equipped. will be published in the Federal SUPPLEMENTARY INFORMATION: On June Standard No. 110 Tire Selection and Register pursuant to the authority 30, 1999, RSPA held a public meeting Rims: Installation of a tire information indicated below. in Washington, DC, to present to the placard. Secretary of Transportation a report on Authority: 49 U.S.C. 30141(a)(1)(A) and damage prevention best practices, as Standard No. 111 Rearview Mirror: (b)(1); 49 CFR 593.8; delegations of authority Replacement of the passenger side at 49 CFR 1.50 and 501.8. required by the Transportation Equity Act for the 21st Century (TEA–21). The rearview mirror with a U.S.-model Issued on: October 15, 1999. ‘‘Common Ground Study’’ was component. Marilynne Jacobs, Standard No. 114 Theft Protection: developed by over 160 volunteers who Installation of a warning buzzer and a Director, Office of Vehicle Safety Compliance. worked for nearly a year to produce this warning buzzer microswitch in the [FR Doc. 99–27408 Filed 10–19–99; 8:45 am] report on best practices in damage steering lock assembly. BILLING CODE 4910±59±P prevention. The study identifies and Standard No. 118 Power Window evaluates existing underground damage Systems: Installation of a relay in the prevention practices that are most power window system so that the DEPARTMENT OF TRANSPORTATION effective in protecting the public, window transport is inoperative when Research and Special Programs excavators, and the environment. These the ignition is switched off. Administration practices prevent disruptions to public Standard No. 208 Occupant Crash services and damage to underground Protection: (a) Installation of a safety [Docket No. RSPA±98±4029; Notice 4] facilities, such as water, sewer, natural belt warning buzzer, wired to the gas and hazardous liquid pipelines, as driver’s seat belt latch; (b) replacement Pipeline Safety: Damage Prevention well as copper and fiber optic of the driver’s and passenger’s side air ``Path Forward'' telecommunications cables and electric bags, control units, sensors, seat belts AGENCY: Research and Special Programs ductwork and cables. A major point of and knee bolsters with U.S.-model Administration (RSPA); Office of interest at the June 30th meeting was on components on vehicles that are not Pipeline Safety (OPS). the next steps to be taken in damage already so equipped. The petitioner ACTION: Notice of public meeting. prevention, also referred to as the ‘‘path states that the vehicles are equipped at forward.’’ the front and rear outboard seating SUMMARY: This notice is to announce a A key lesson of Common Ground positions with combination lap and public meeting on RSPA’s continuing Study was that full representation and shoulder belts that are self tensioning efforts to prevent damage to motivated commitment from all key and capable of being released by means underground facilities. RSPA is stakeholders is essential. To effectively of a single red push-button, and with a facilitating the establishment of a non- develop a ‘‘path forward,’’ we need lap belt in the rear center designated profit organization to advance input from the full spectrum of seating position. underground facility damage stakeholders to ensure that all affected VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56571 parties are provided with the DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: opportunity to contribute and Applicants state that ESL 3 and EBC 4 are participate. Following the Common Surface Transportation Board currently controlled by L & K; Ground Study model, RSPA believes Northwest is controlled by Larry S. that all stakeholder organizations [STB Docket No. MC±F±20956] 1 Black and Jerry L. Kilb. L & K owns all should participate in this public of the stock of ESL, and ESL, in turn, meeting to share their ideas and express Northwest Motor Coach L.L.C.Ð owns all of the stock of EBC. Applicants their interest in the ‘‘path forward’’ in ControlÐEvergreen Stage Line, Inc. state that none of the entities involved damage prevention. and Evergreen Bus Company, Inc. in this proceeding is affiliated with any other motor carrier, except that Jerry L. Topics of Discussion AGENCY: Surface Transportation Board. Kilb, a principal in L & K and president of ESL and EBC, is a principal of RSPA asks attendees at the meeting to ACTION: Notice tentatively approving Northwest and will remain president of identify those organizations and finance application and granting interim ESL and EBC following the proposed 2 industry leaders whose high level approval. transaction. commitment, leadership, and influence Applicants state that: (1) L & K has are essential to complete planning for SUMMARY: Northwest Motor Coach agreed to sell Northwest all of its assets establishment of the damage prevention L.L.C. (Northwest) and L & K (including its stock in ESL) and all of its non-profit organization. RSPA also Acquisition Corp. (L & K), two liabilities; (2) upon consummation of seeks comment on the mission, goals, noncarrier holding companies, and the transaction, Northwest will control functions, and organizational structure Evergreen Stage Line, Inc. (ESL) and two regulated passenger carriers and the of the non-profit organization. Interested Evergreen Bus Company, Inc. (EBC), two previous shareholders of L & K will own stakeholders are encouraged to propose regulated motor passenger carriers, all of approximately 7.5% of the shares of guiding principles to shape the Portland, OR (collectively, applicants), Northwest; and (3) L & K will no longer formation of the organization to best have filed: (1) An application under 49 have any control of any regulated address the many issues involved in U.S.C. 14303(a) for Northwest to acquire passenger carriers. protecting the nation’s underground control of ESL and EBC; and (2) a Applicants state that the proposed infrastructure from outside force request for interim approval of the transaction will have no impact on the damage. transaction under 49 U.S.C. 14303(i) adequacy of transportation services available to the public. The proposal pending determination of the RSPA strongly supports the need for involves only a sale of the two carriers application. Persons wishing to oppose an organized effort to address damage from one holding company to a second, prevention challenges in the years the application must follow the rules at and there will be no change in carrier ahead. With the support of Congress and 49 CFR part 1182, subpart B. The Board operations. Applicants assert that the Department of Transportation, we has tentatively approved the Northwest’s acquisition of control, with are committed to provide resources to application. If no opposing comments a new infusion of funds, will assure the the effort. However, RSPA believes the are timely filed, this notice will be the continued viability of ESL and EBC and future of damage prevention lies in the final Board action. result in the continued availability of hands of the private sector. RSPA is DATES: Comments are due by December adequate service to the public. working to assist the initial creation of 6, 1999. Applicants may reply by According to applicants, the a self-sustaining private sector, non- December 21, 1999. If no comments are transaction includes a fixed payment to L & K shareholders which can readily be profit organization on a temporary basis received by December 6, 1999, this paid from Northwest’s equity only, to ensure the participation of all approval is effective on that date. affected stakeholders. The U.S. Senate investment and third party financing Appropriations Committee report on ADDRESSES: Send an original and 10 without affecting carrier operations. Fiscal Year 2000 appropriations copies of any comments referring to STB Applicants add that no carrier directed RSPA to ‘‘support the Docket No. MC–F–20956 to: Surface employees will be adversely affected by the transaction, as the carriers will formation and initial operation’’ of the Transportation Board, Office of the continue to perform the same operations organization. Once the organization is Secretary, Case Control Unit, 1925 K Street, NW, Washington, DC 20423– with the same employees. formed, the federal government’s role Applicants certify that: (1) ESL and will become much less significant. 0001. In addition, send one copy of any comments to applicants’ representative: EBC hold a satisfactory safety rating We enjoyed our role in organizing, Jeremy Kahn, Kahn & Kahn, 1730 Rhode 3 ESL holds federally-issued operating authority facilitating, and managing the Common Island Ave., NW, Suite 810, Ground Study Team and we plan to in Docket No. MC–29839, authorizing the Washington, DC 20036. transportation of passengers in charter and special support this effort. RSPA welcomes all operations, between points in the United States. It interested parties to attend and FOR FURTHER INFORMATION CONTACT: also holds Motor Carrier Permit No. 118436 issued participate in this public meeting to take Joseph H. Dettmar, (202) 565–1600. by the Oregon Public Utility Commission (TDD for the hearing impaired: (202) authorizing certain intrastate operations. ESL had the next steps necessary in promoting gross operating revenues of $1,860,000 for the 12- and encouraging underground facility 565–1695.) month period ending June 30, 1999. damage prevention. 4 EBC holds federally-issued operating authority in Docket No. MC–39416, authorizing the Issued in Washington, DC on October 14, transportation of passengers, in charter and special 1999. operations, between points in the United States. It Richard B. Felder, also holds a Motor Carrier Certificate in File No. 1 237, Class 1P, MEP 960003 issued by the Oregon Associate Administrator for Pipeline Safety. This proceeding embraces STB Docket No. MC– Department of Transportation, authorizing certain F–20956 TA. [FR Doc. 99–27320 Filed 10–19–99; 8:45 am] intrastate operations. EBC had gross operating 2 Interim approval will be effective on October 18, revenues of $4,450,000 for the 12-month period BILLING CODE 4910±60±P 1999. ending June 30, 1999. VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56572 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices from the U.S. Department of 1. Northwest’s control of ESL and EBC milepost 461.74 at Warren, AR (The Transportation; (2) ESL and EBC is approved and authorized, subject to Warren Line), and (b) from milepost 566 maintain sufficient liability insurance; the filing of opposing comments. at Monroe, LA, to milepost 556.18 at (3) none of the involved carriers is 2. Northwest is granted interim Sterlington, LA (The Sterlington Line). domiciled in Mexico nor owned or approval to operate the properties of In addition, Delta will acquire controlled by persons of that country; ESL and EBC for a period of not more approximately 11.76 miles of operating and (4) approval of the transaction will than 180 days pending determination of rights over other rail lines: (1) DSRR’s not significantly affect either the quality the application. operating rights over certain other rail of the human environment or the 3. If timely opposing comments are assets located at milepost 491 in conservation of energy resources. filed, the findings made in this decision Tallulah, LA, and owned by the Under 49 U.S.C. 14303(b), the Board will be deemed vacated. Madison Parish Port Commission (The must approve and authorize 4. This decision will be effective on Madison Line); (2) certain overhead transactions it finds consistent with the December 6, 1999, unless timely trackage rights over UP’s line (a) public interest, taking into account at opposing comments are filed. between milepost 415.26 at Dermott, 5. A copy of this notice will be served least: (1) The effect of the transactions AR, and milepost 409.7 at McGehee, on: (1) The U.S. Department of on the adequacy of transportation to the AR, and (b) and yard facilities from Transportation, Office of Motor Carriers- public; (2) the total fixed charges that milepost 566 and milepost 500.3 to HIA 30, 400 Virginia Avenue, SW, Suite result; and (3) the interest of affected milepost 504 at Monroe, LA; and (3) 600, Washington, DC 20024; (2) the U.S. carrier employees. certain operating rights at milepost On the basis of the application, we Department of Transportation, Office of 472.8 at Lake Providence, LA, owned by find that the proposed acquisition of the General Counsel, 400 7th Street, SW, the Lake Providence Port Commission.2 control is consistent with the public Washington, DC 20590; and (3) the U.S. interest and should be authorized. If any Department of Justice, Antitrust On August 4, 1999, William and opposing comments are timely filed, Division, 10th Street and Pennsylvania Linda Wainwright, sole owners of Delta this finding will be deemed vacated Avenue, NW, Washington, DC 20530. signed a letter of intent with Lawrence and, unless a final decision can be made By the Board, Chairman Morgan, Vice Beal for the parties to negotiate and on the record as developed, a Chairman Clyburn, and Commissioner execute a purchase and sale agreement procedural schedule will be adopted to Burkes. for the acquisition and operation of reconsider the application.5 If no Decided: October 14, 1999. DSRR.3 The verified notice states that opposing comments are filed by the Vernon A. Williams, William Wainwright has managed DSRR expiration of the comment period, this Secretary. for the past 10 years since DSRR was decision will take effect automatically [FR Doc. 99–27412 Filed 10–19–99; 8:45 am] established as a short line railroad in and will be the final Board action. 1989. The parties had not yet signed an BILLING CODE 4915±00±P In their interim approval request, agreement as of the October 1, 1999 applicants state that, because the filing of the verified notice of current owners of ESL and EBC are not DEPARTMENT OF TRANSPORTATION exemption. prepared to make necessary long term The transaction is scheduled to be investments in them, it is necessary that Surface Transportation Board consummated on or shortly after Northwest be allowed to assume their October 18, 1999. temporary control on or immediately [STB Finance Docket No. 33802] after October 18, 1999, or the carriers If the notice contains false or Delta Southern Railroad, Inc.Ð misleading information, the exemption could lose their market position to Acquisition and Operation competitors, thereby causing severe is void ab initio. Petitions to revoke the ExemptionÐDelta Southern Railroad exemption under 49 U.S.C. 10502(d) injury to the ESL and EBC properties. Company Applicants have explained that the may be filed at any time. The filing of failure to grant such interim approval Delta Southern Railroad, Inc. (Delta), a petition to revoke will not may result in injury to the motor carrier a noncarrier, newly created to become a automatically stay the transaction. properties or substantially interfere with Class III railroad, has filed a verified An original and 10 copies of all their future usefulness in providing notice of exemption under 49 CFR pleadings, referring to STB Finance adequate and continuous service to the 1150.31 to acquire (by purchase or Docket No. 33802, must be filed with public. Accordingly, the interim lease) and operate approximately 132.78 the Surface Transportation Board, Office approval will be granted.6 miles of rail line from Delta Southern of the Secretary, Case Control Unit, 1925 Board decisions and notices are Railroad Company (DSRR). The lines or K Street, NW, Washington, DC 20423– available on our website at rights intended to be acquired are as 0001. In addition, a copy of each ‘‘WWW.STB.DOT.GOV.’’ follows: (1) From milepost 408.9 in or pleading must be served on John D. This decision will not significantly near McGehee, AR, to milepost 489.44 Heffner, Esq., Rea, Cross, & Auchincloss, affect either the quality of the human in or near Tallulah, LA; (2) a rail spur 1707 L Street, NW, Suite 570, environment or the conservation of from milepost 445.53 (where it connects Washington, DC 20036. energy resources. with the Warren Line described in Board decisions and notices are It is ordered: (3)(a)) for 3 miles; 1 and (3) DSRR’s leasehold interest in a rail line owned available on our website at 5 Under 49 CFR 1182.6(c), a procedural schedule by Union Pacific Railroad Company ‘‘WWW.STB.DOT.GOV.’’ will not be issued if we are able to dispose of (UP) and currently operated by DSRR (a) Decided: October 12, 1999. opposition to the application on the basis of comments and the reply. from milepost 422.32 at Dermott, AR, to 6 The Board will entertain petitions to reconsider 2 Delta states that its projected revenues will not a grant of interim approval. Such petitions may be 1 Delta indicated in its notice that it takes no exceed those that would qualify it as a Class III rail filed only by a person who has filed a comment in position on whether this line is a spur for the carrier and that its revenues are not projected to opposition to the application. See 49 U.S.C. purpose of the spur exemption under 49 U.S.C. exceed $5 million. 1182.7(e) for further details. 10906. 3 Lawrence Beal owns 100% of DSRR. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56573 By the Board, David M. Konschnik, information. The comments that are ADDRESSES: Direct all written comments Director, Office of Proceedings. submitted will be summarized and to U.S. Customs Service, Information Vernon A. Williams, included in the Customs request for Services Group, Attn.: J. Edgar Nichols, Secretary. Office of Management and Budget 1300 Pennsylvania Avenue, NW, Room [FR Doc. 99–27131 Filed 10–19–99; 8:45 am] (OMB) approval. All comments will 3.2C, Washington, D.C. 20229. BILLING CODE 4915±00±P become a matter of public record. In this FOR FURTHER INFORMATION CONTACT: document Customs is soliciting Requests for additional information comments concerning the following should be directed to U.S. Customs DEPARTMENT OF THE TREASURY information collection: Service, Attn.: J. Edgar Nichols, 1300 Title: Lien Notice. Pennsylvania Avenue NW, Room 3.2C, Customs Service OMB Number: 1515–0046. Washington, D.C. 20229, Tel. (202) 927– Form Number: Customs Form 3485. 1426. Proposed Collection; Comment Abstract: The Lien Notice, Customs Request; Lien Notice (Customs Form Form 3485, enable the carriers, cartmen, SUPPLEMENTARY INFORMATION: Customs 3485) and similar businesses to notify invites the general public and other Customs that a lien exists against an Federal agencies to comment on ACTION: Notice and request for individual/business for non-payment of proposed and/or continuing information comments. freight charges, etc., so that Customs collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13; SUMMARY: As part of its continuing effort will not permit delivery of the 44 U.S.C. 3505(c)(2)). The comments to reduce paperwork and respondent merchandise from public stores or a should address: (a) Whether the burden, Customs invites the general bonded warehouse until the lien is collection of information is necessary public and other Federal agencies to satisfied or discharged. for the proper performance of the comment on an information collection Current Actions: There are no changes functions of the agency, including requirement concerning the U.S. to the information collection. This whether the information shall have Customs Declaration. This request for submission is being submitted to extend practical utility; (b) the accuracy of the comment is being made pursuant to the the expiration date. agency’s estimates of the burden of the Paperwork Reduction Act of 1995 Type of Review: Extension (without (Public Law 104–13; 44 U.S.C. change). collection of information; (c) ways to 3505(c)(2)). Affected Public: Individuals, enhance the quality, utility, and clarity businesses. of the information to be collected; (d) DATES: Written comments should be Estimated Number of Respondents: ways to minimize the burden including received on or before December 20, 2,000. the use of automated collection 1999, to be assured of consideration. Estimated Time Per Respondent: 5 techniques or the use of other forms of ADDRESSES: Direct all written comments minutes. information technology; and (e) to U.S. Customs Service, Information Estimated Total Annual Burden estimates of capital or start-up costs and Services Group, Attn.: J. Edgar Nichols, Hours: 8,497. costs of operations, maintenance, and 1300 Pennsylvania Avenue, NW, Room Estimated Total Annualized Cost on purchase of services to provide 3.2C, Washington, D.C. 20229. the Public: N/A. information. The comments that are FOR FURTHER INFORMATION CONTACT: Dated: October 14, 1999. submitted will be summarized and Requests for additional information J. Edgar Nichols, included in the Customs request for should be directed to U.S. Customs Agency Clearance Officer, Information Office of Management and Budget Service, Attn.: J. Edgar Nichols, 1300 Services Group. (OMB) approval. All comments will Pennsylvania Avenue NW, Room 3.2C, [FR Doc. 99–27345 Filed 10–19–99; 8:45 am] become a matter of public record. In this Washington, D.C. 20229, Tel. (202) 927– BILLING CODE 4820±02±P document Customs is soliciting 1426. comments concerning the following SUPPLEMENTARY INFORMATION: Customs information collection: invites the general public and other DEPARTMENT OF THE TREASURY Title: Importers of Merchandise Federal agencies to comment on Subject to Actual Use Provisions. proposed and/or continuing information Customs Service OMB Number: 1515–0091. collections pursuant to the Paperwork Form Number: None. Reduction Act of 1995 (Pub. L. 104–13; Proposed Collection; Comment Abstract: The Importers of 44 U.S.C. 3505(c)(2)). The comments Request; Importers of Merchandise Merchandise Subject to Actual Use should address: (a) Whether the Subject to Actual Use Provisions Provision is part of the regulation which collection of information is necessary ACTION: Notice and request for provides that certain items may be for the proper performance of the comments. admitted duty-free such as farming functions of the agency, including implements, seed, potatoes etc., whether the information shall have SUMMARY: As part of its continuing effort providing the importer can prove these practical utility; (b) the accuracy of the to reduce paperwork and respondent items were actually used as agency’s estimates of the burden of the burden, Customs invites the general contemplated by law. The importer collection of information; (c) ways to public and other Federal agencies to must maintain detailed records and enhance the quality, utility, and clarity comment on an information collection furnish a statement of use. of the information to be collected; (d) requirement concerning the U.S. Current Actions: There are no changes ways to minimize the burden including Customs Declaration. This request for to the information collection. This the use of automated collection comment is being made pursuant to the submission is being submitted to extend techniques or the use of other forms of Paperwork Reduction Act of 1995 (Pub. the expiration date. information technology; and (e) L. 104–13; 44 U.S.C. 3505(c)(2)). Type of Review: Extension (without estimates of capital or start-up costs and DATES: Written comments should be change). costs of operations, maintenance, and received on or before December 20, Affected Public: Individuals, purchase of services to provide 1999, to be assured of consideration. Businesses. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56574 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Estimated Number of Respondents: ways to minimize the burden including comment on an information collection 12,000. the use of automated collection requirement concerning the Required Estimated Time Per Respondent: 60 techniques or the use of other forms of Records for Smelting and Refining minutes. information technology; and (e) Warehouses. This request for comment Estimated Total Annual Burden estimates of capital or start-up costs and is being made pursuant to the Hours: 12,000. costs of operations, maintenance, and Paperwork Reduction Act of 1995 (Pub. Estimated Total Annualized Cost on purchase of services to provide L. 104–13; 44 U.S.C. 3505(c)(2)). the Public: N/A. information. The comments that are DATES: Written comments should be Dated: October 14, 1999. submitted will be summarized and received on or before December 20, J. Edgar Nichols, included in the Customs request for 1999, to be assured of consideration. Agency Clearance Officer, Information Office of Management and Budget ADDRESSES: Direct all written comments Services Group. (OMB) approval. All comments will to U.S. Customs Service, Information [FR Doc. 99–27346 Filed 10–19–99; 8:45 am] become a matter of public record. In this Services Group, Attn.: J. Edgar Nichols, BILLING CODE 4820±02±P document Customs is soliciting 1300 Pennsylvania Avenue, NW, Room comments concerning the following 3.2C, Washington, DC 20229. information collection: FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF THE TREASURY Title: Proof of the Use for Rates of Requests for additional information Duty Dependent on Actual Use. Customs Service should be directed to U.S. Customs OMB Number: 1515–0109. Service, Attn.: J. Edgar Nichols, 1300 Form Number: None. Pennsylvania Avenue NW, Room 3.2C, Proposed Collection; Comment Abstract: The Proof of the Use for Washington, DC 20229, Tel. (202) 927– Request; Proof of the Use for Rates of Rates of Duty Dependent on Actual Use 1426. Duty Dependent on Actual Use declaration is needed to ensure Customs control over merchandise which is duty SUPPLEMENTARY INFORMATION: Customs ACTION: Notice and request for invites the general public and other comments. free. The declaration shows proof of use and must be submitted within 3 years of Federal agencies to comment on SUMMARY: As part of its continuing effort the date of entry or withdrawal for proposed and/or continuing information to reduce paperwork and respondent consumption. collections pursuant to the Paperwork burden, Customs invites the general Current Actions: There are no changes Reduction Act of 1995 (Pub. L. 104–13; public and other Federal agencies to to the information collection. This 44 U.S.C. 3505(c)(2)). The comments comment on an information collection submission is being submitted to extend should address: (a) Whether the requirement concerning the U.S. the expiration date. collection of information is necessary Customs Declaration. This request for Type of Review: Extension (without for the proper performance of the comment is being made pursuant to the change). functions of the agency, including Paperwork Reduction Act of 1995 (Pub. Affected Public: Individuals, whether the information shall have L. 104–13; 44 U.S.C. 3505(c)(2)). Businesses. practical utility; (b) the accuracy of the DATES: Written comments should be Estimated Number of Respondents: agency’s estimates of the burden of the received on or before December 20, 10,500. collection of information; (c) ways to 1999, to be assured of consideration. Estimated Time Per Respondent: 20 enhance the quality, utility, and clarity of the information to be collected; (d) ADDRESSES: Direct all written comments minutes. ways to minimize the burden including to U.S. Customs Service, Information Estimated Total Annual Burden the use of automated collection Services Group, Attn.: J. Edgar Nichols, Hours: 3,500. techniques or the use of other forms of 1300 Pennsylvania Avenue, NW, Room Estimated Total Annualized Cost on information technology; and (e) the 3.2C, Washington, DC 20229. the Public: N/A. annual costs burden to respondents or Dated: October 14, 1999. FOR FURTHER INFORMATION CONTACT: record keepers from the collection of Requests for additional information J. Edgar Nichols, information (a total capital/startup costs should be directed to U.S. Customs Agency Clearance Officer, Information and operations and maintenance costs). Service, Attn.: J. Edgar Nichols, 1300 Services Group. The comments that are submitted will Pennsylvania Avenue NW, Room 3.2C, [FR Doc. 99–27347 Filed 10–19–99; 8:45 am] be summarized and included in the Washington, DC 20229, Tel. (202) 927– BILLING CODE 4820±02±P Customs request for Office of 1426. Management and Budget (OMB) SUPPLEMENTARY INFORMATION: Customs approval. All comments will become a invites the general public and other DEPARTMENT OF THE TREASURY matter of public record. In this Federal agencies to comment on Customs Service document Customs is soliciting proposed and/or continuing information comments concerning the following collections pursuant to the Paperwork Proposed Collection; Comment information collection: Reduction Act of 1995 (Pub. L. 104–13; Request; Required Records for Title: Required Records for Smelting 44 U.S.C. 3505(c)(2)). The comments Smelting and Refining Warehouses and Refining Warehouses. should address: (a) Whether the OMB Number: 1515–0135. collection of information is necessary AGENCY: U.S. Customs, Department of Form Number: N/A. for the proper performance of the the Treasury. Abstract: Each manufacturer engaged functions of the agency, including ACTION: Notice and request for in smelting or refining must file an whether the information shall have comments. annual statement showing any material practical utility; (b) the accuracy of the change in the character of the metal- agency’s estimates of the burden of the SUMMARY: As part of its continuing effort bearing materials used or changes in the collection of information; (c) ways to to reduce paperwork and respondent method of smelting or refining. Also, the enhance the quality, utility, and clarity burden, Customs invites the general records must show the receipt and of the information to be collected; (d) public and other Federal agencies to disposition of each shipment. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56575 Current Actions: There are no changes whether the information shall have burden, Customs invites the general to the information collection. practical utility; (b) the accuracy of the public and other Federal agencies to Type of Review: Extension (without agency’s estimates of the burden of the comment on an information collection change). collection of information; (c) ways to requirement concerning the U.S. Affected Public: Business or other for- enhance the quality, utility, and clarity Customs Declaration. This request for profit institutions. of the information to be collected; (d) comment is being made pursuant to the Estimated Number of Respondents: ways to minimize the burden including Paperwork Reduction Act of 1995 15. the use of automated collection (Public Law 104–13; 44 U.S.C. Estimated Time Per Respondent: 85 techniques or the use of other forms of 3505(c)(2)). hours. information technology; and (e) Estimated Total Annual Burden DATES: Written comments should be estimates of capital or start-up costs and received on or before December 20, Hours: 1,325. costs of operations, maintenance, and Estimated Total Annualized Cost on 1999, to be assured of consideration. purchase of services to provide the Public: $15,900. ADDRESSES: Direct all written comments information. The comments that are to U.S. Customs Service, Information Dated: October 14, 1999. submitted will be summarized and Services Group, Attn.: J. Edgar Nichols, J. Edgar Nichols, included in the Customs request for 1300 Pennsylvania Avenue, NW, Room Agency Clearance Officer, Printing and Office of Management and Budget 3.2C, Washington, D.C. 20229. Records Services Group. (OMB) approval. All comments will [FR Doc. 99–27348 Filed 10–19–99; 8:45 am] become a matter of public record. In this FOR FURTHER INFORMATION CONTACT: BILLING CODE 4820±02±P document Customs is soliciting Requests for additional information comments concerning the following should be directed to U.S. Customs information collection: Service, Attn.: J. Edgar Nichols, 1300 DEPARTMENT OF THE TREASURY Title: Declaration of Person Who Pennsylvania Avenue NW, Room 3.2C, Performed Repairs. Washington, D.C. 20229, Tel. (202) 927– Customs Service OMB Number: 1515–0137. 1426. Form Number: None. SUPPLEMENTARY INFORMATION: Customs Proposed Collection; Comment Abstract: The Declaration of Person invites the general public and other Request; Declaration of Person Who Who Performed Repairs is used by Federal agencies to comment on Performed Repairs Customs to ensure duty-free status for proposed and/or continuing information ACTION: Notice and request for entries covering articles repaired collections pursuant to the Paperwork comments. aboard. It must be filed by importers Reduction Act of 1995 (Pub. L. 104–13; claiming duty-free status. 44 U.S.C. 3505(c)(2)). The comments SUMMARY: As part of its continuing effort Current Actions: There are no changes should address: (a) Whether the to reduce paperwork and respondent to the information collection. This collection of information is necessary burden, Customs invites the general submission is being submitted to extend for the proper performance of the public and other Federal agencies to the expiration date. functions of the agency, including comment on an information collection Type of Review: Extension (without whether the information shall have requirement concerning the U.S. change). practical utility; (b) the accuracy of the Customs Declaration. This request for Affected Public: Businesses or other agency’s estimates of the burden of the comment is being made pursuant to the for-profit. collection of information; (c) ways to Paperwork Reduction Act of 1995 (Pub. Estimated Number of Respondents: enhance the quality, utility, and clarity L. 104–13; 44 U.S.C. 3505(c)(2)). 10,236. of the information to be collected; (d) DATES: Written comments should be Estimated Time Per Respondent: 30 ways to minimize the burden including received on or before December 20, minutes. the use of automated collection 1999, to be assured of consideration. Estimated Total Annual Burden techniques or the use of other forms of ADDRESSES: Direct all written comments Hours: 10,236. information technology; and (e) to U.S. Customs Service, Information Estimated Total Annualized Cost on estimates of capital or start-up costs and Services Group, Attn.: J. Edgar Nichols, the Public: N/A. costs of operations, maintenance, and 1300 Pennsylvania Avenue, NW, Room Dated: October 14, 1999. purchase of services to provide 3.2C, Washington, DC 20229. J. Edgar Nichols, information. The comments that are FOR FURTHER INFORMATION CONTACT: Agency Clearance Officer, Information submitted will be summarized and Requests for additional information Services Group. included in the Customs request for should be directed to U.S. Customs [FR Doc. 99–27349 Filed 10–19–99; 8:45 am] Office of Management and Budget (OMB) approval. All comments will Service, Attn.: J. Edgar Nichols, 1300 BILLING CODE 4820±02±P Pennsylvania Avenue NW, Room 3.2C, become a matter of public record. In this Washington, DC 20229, Tel. (202) 927– document Customs is soliciting 1426. DEPARTMENT OF THE TREASURY comments concerning the following SUPPLEMENTARY INFORMATION: Customs information collection: invites the general public and other Customs Service Title: User Fees. Federal agencies to comment on OMB Number: 1515–0154. proposed and/or continuing information Proposed Collection; Comment Form Number: Customs Form 339. collections pursuant to the Paperwork Request User Fees (Customs Form Abstract: The User Fees, Customs Reduction Act of 1995 (Pub. L. 104–13; 339) Form 339, information is necessary for 44 U.S.C. 3505(c)(2)). The comments ACTION: Notice and request for Customs to effectively collect fees from should address: (a) Whether the comments. private and commercial vessels, private collection of information is necessary aircraft, operators of commercial trucks, for the proper performance of the SUMMARY: As part of its continuing effort and passenger and freight railroad cars functions of the agency, including to reduce paperwork and respondent entering the United States and VerDate 12-OCT-99 17:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm01 PsN: 20OCN1 56576 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices recipients of certain dutiable mail submitted by electronic mail to the Instruments (CMIR), U.S. Customs entries for certain official services. following Internet address: Service Form 4790. Current Actions: There are no changes ‘‘[email protected]’’ with Information collected on the CMIR is to the information collection. This the caption in the body of the text, made available, in accordance with submission is being submitted to extend ‘‘Attention: PRA Comments—Report of strict safeguards, to appropriate criminal the expiration date. International Transportation of law enforcement and regulatory Type of Review: Extension (without Currency or Monetary Instruments.’’ personnel in the official performance of change). Customs: U.S. Customs Service, Attn.: their duties. The information collected Affected Public: Businesses or other Joseph R. Catanzarite, Financial is of use in investigations involving for-profit. Investigations, 1300 Pennsylvania Ave., international and domestic money Estimated Number of Respondents: NW, Room 7.2C, Washington, DC 20229. laundering, tax evasion, fraud, and other 200,000. FOR FURTHER INFORMATION CONTACT: financial crimes. Estimated Time Per Respondent: 15 Requests for additional information or Current Actions: The CMIR is being minutes. for a copy of the form should be revised to clarify the instructions to the Estimated Total Annual Burden directed to: FinCEN: Christine Schuetz, form. The form is also being streamlined Hours: 50,000. Attorney-Advisor, FinCEN, at (703) by combining Parts I and II of the form Estimated Total Annualized Cost on 905–3644, or Anna Fotias, Chief, now in use into one part; as a result, the the Public: N/A. Regulatory Outreach Programs, FinCEN, items on the form are being renumbered. Dated: October 14, 1999. at (703) 905–3695. Finally, two questions on the form are J. Edgar Nichols, Customs: U.S. Customs Service, Attn.: being revised slightly to make them more useful. Question 15 of Part II Agency Clearance Officer, Information Joseph R. Catanzarite, 1300 Services Group. Pennsylvania Ave., NW, Room 7.2C, (question 27c of the form now in use) is revised to add after ‘‘Type of Business [FR Doc. 99–27350 Filed 10–19–99; 8:45 am] Washington, DC 20229. Tel. (202) 927– 1520. Activity, Occupations, or Profession’’ a BILLING CODE 4820±02±P box to check when the business is a SUPPLEMENTARY INFORMATION: Title: Report of International bank. Under Part III, Currency and DEPARTMENT OF THE TREASURY Transportation of Currency or Monetary Monetary Instrument Information, the Instruments. entry for other instruments is revised to Financial Crimes Enforcement OMB Number: 1515–0079. read ‘‘Specify type, issuing entity and Network Form Number: Customs Form 4790. date, and serial or other identifying Abstract: The Bank Secrecy Act, number.’’ Customs Service Type of Review: Revision of currently Titles I and II of Pub. L. 91–508, as approved collection. amended, codified at 12 U.S.C. 1829b, Agency Information Collection Affected Public: Individuals, business 12 U.S.C. 1951–1959, and 31 U.S.C. Activities; Proposed Collection; or other for-profit institutions, not-for- 5311–5330, authorizes the Secretary of Comment Request; Report of profit institutions. International Transportation of the Treasury, inter alia, to issue Estimated Number of Respondents: Currency or Monetary Instruments regulations requiring records and 180,000. reports that are determined to have a Estimated Time Per Respondent: 11 AGENCY: Financial Crimes Enforcement high degree of usefulness in criminal, minutes. Network (FinCEN) and United States tax, and regulatory matters. Regulations Estimated Total Annual Burden Customs Service (Customs). implementing Title II of the Bank Hours: 33,000 hours. ACTION: Notice and request for Secrecy Act (codified at 31 U.S.C. 5311– An agency may not conduct or comments. 5330) appear at 31 CFR part 103. The sponsor, and a person is not required to authority of the Secretary to administer respond to, a collection of information SUMMARY: As part of its continuing effort Title II of the Bank Secrecy Act has been unless the collection of information to reduce paperwork and respondent delegated to the Director of FinCEN. displays a valid OMB control number. burden, FinCEN and Customs invite the The Bank Secrecy Act specifically Records required to be retained under general public and other Federal states that ‘‘a person or an agent or the Bank Secrecy Act must be retained agencies to comment on an information bailee of the person shall file a report for five years. Generally, information collection requirement concerning the ** * when the person, agent, or bailee collected pursuant to the Bank Secrecy Report of International Transportation knowingly—(1) transports, is about to Act is confidential, but may be shared of Currency or Monetary Instruments. transport, or has transported, monetary as provided by law with regulatory and This request for comment is being made instruments of more than $10,000 at one law enforcement authorities. pursuant to the Paperwork Reduction time—(A) from a place in the United Act of 1995, Public Law 104–13 (44 States to or through a place outside the Request for Comments U.S.C. 3506(c)(2)(A)). United States; or (B) to a place in the Comments submitted in response to DATES: Written comments should be United States from or through a place this notice will be summarized and/or received on or before December 20, 1999 outside the United States; or (2) receives included in the request for OMB to be assured of consideration. monetary instruments of more than approval. All comments will become a ADDRESSES: Direct all written comments $10,000 at one time transported into the matter of public record. Comments are to: FinCEN: Office of Chief Counsel, United States from or through a place invited on: (a) Whether the collection of Financial Crimes Enforcement Network, outside the United States.’’ 31 U.S.C. information is necessary for the proper Department of the Treasury, Suite 200, 5316(a). The requirement of 31 U.S.C. performance of the functions of the 2070 Chain Bridge Road, Vienna, VA 5316(a) has been implemented through agency, including whether the 22182–2536, Attention: PRA regulations promulgated at 31 CFR information shall have practical utility; Comments—Report of International 103.23 and through the instructions to (b) the accuracy of the agency’s estimate Transportation of Currency or Monetary the Report of International of the burden of the collection of Instruments. Comments also may be Transportation of Currency or Monetary information; (c) ways to enhance the VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56577 quality, utility, and clarity of the OMB Number: 1545–0736. Approved: October 14, 1999. information to be collected; (d) ways to Regulation Project Number: LR–274– Garrick R. Shear, minimize the burden of the collection of 81. IRS Reports Clearance Officer. information on respondents, including Abstract: The recordkeeping [FR Doc. 99–27414 Filed 10–19–99; 8:45 am] through the use of automated collection requirements in this regulation are BILLING CODE 4830±01±P techniques or other forms of information necessary to determine whether technology; and (e) estimates of capital taxpayers are properly allocating or start-up costs and costs of operation, indirect contract costs to extended DEPARTMENT OF THE TREASURY maintenance and purchase of services to period long-term contracts. The Internal Revenue Service provide information. information will be used to verify the Dated: October 14, 1999. taxpayer’s allocations of indirect costs [FI±81±86] James F. Sloan, and to ensure compliance with the cost- Director, Financial Crimes Enforcement accounting principles of § 1.451–3 of the Proposed Collection; Comment Network, Department of the Treasury. regulations. Request for Regulation Project Dated: October 12, 1999. Current Actions: There is no change to AGENCY: Internal Revenue Service (IRS), J. Edgar Nichols, this existing regulation. Treasury. Team Leader, Information Services Group, Type of Review: Extension of a ACTION: Notice and request for United States Customs Service. currently approved collection. comments. [FR Doc. 99–27403 Filed 10–19–99; 8:45 am] Affected Public: Business or other for- SUMMARY: The Department of the BILLING CODE 4820±03±P profit organizations. Treasury, as part of its continuing effort Estimated Number of Respondents: to reduce paperwork and respondent 1,000. DEPARTMENT OF THE TREASURY burden, invites the general public and Estimated Time Per Respondent: 10 other Federal agencies to take this Internal Revenue Service hours, 1 minute. opportunity to comment on proposed [LR±274±81] Estimated Total Annual Burden and/or continuing information Hours: 10,010. collections, as required by the Proposed Collection; Comment The following paragraph applies to all Paperwork Reduction Act of 1995, Request for Regulation Project of the collections of information covered Public Law 104–13 (44 U.S.C. by this notice: 3506(c)(2)(A)). Currently, the IRS is AGENCY: Internal Revenue Service (IRS), soliciting comments concerning an An agency may not conduct or Treasury. existing final regulation, FI–81–86(TD sponsor, and a person is not required to ACTION: 8513), Bad Debt Reserves of Banks Notice and request for respond to, a collection of information (§ 1.585–8). comments. unless the collection of information DATES: Written comments should be SUMMARY: The Department of the displays a valid OMB control number. Books or records relating to a collection received on or before December 20, 1999 Treasury, as part of its continuing effort to be assured of consideration. to reduce paperwork and respondent of information must be retained as long ADDRESSES: burden, invites the general public and as their contents may become material Direct all written comments other Federal agencies to take this in the administration of any internal to Garrick R. Shear, Internal Revenue opportunity to comment on proposed revenue law. Generally, tax returns and Service, room 5244, 1111 Constitution and/or continuing information tax return information are confidential, Avenue NW., Washington, DC 20224. collections, as required by the as required by 26 U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: Requests for additional information or Paperwork Reduction Act of 1995, Request for Comments Public Law 104–13 (44 U.S.C. copies of the regulation should be 3506(c)(2)(A)). Currently, the IRS is Comments submitted in response to directed to Carol Savage, (202) 622– soliciting comments concerning an this notice will be summarized and/or 3945, Internal Revenue Service, room existing final regulation, LR–274–81 (TD included in the request for OMB 5242, 1111 Constitution Avenue NW., 8067), Accounting for Long-Term approval. All comments will become a Washington, DC 20224. Contracts (§ 1.451–3). matter of public record. Comments are SUPPLEMENTARY INFORMATION: DATES: Written comments should be invited on: (a) Whether the collection of Title: Bad Debt Reserves of Banks. received on or before December 20, 1999 information is necessary for the proper OMB Number: 1545–1290. to be assured of consideration. performance of the functions of the Regulation Project Number: FI–81–86. agency, including whether the Abstract: Section 585(c) of the ADDRESSES: Direct all written comments information shall have practical utility; Internal Revenue Code requires large to Garrick R. Shear, Internal Revenue (b) the accuracy of the agency’s estimate banks to change from the reserve Service, room 5244, 1111 Constitution of the burden of the collection of method of accounting to the specific Avenue NW., Washington, DC 20224. information; (c) ways to enhance the charge off method of accounting for bad FOR FURTHER INFORMATION CONTACT: quality, utility, and clarity of the debts. Section 1.585–8 of the regulation Requests for additional information or information to be collected; (d) ways to contains reporting requirements in cases copies of the regulation should be minimize the burden of the collection of in which large banks elect (1) To directed to Carol Savage, (202) 622– information on respondents, including include in income an amount greater 3945, Internal Revenue Service, room through the use of automated collection than that prescribed by the Code; (2) To 5242, 1111 Constitution Avenue NW., techniques or other forms of information use the elective cut-off method of Washington, DC 20224. technology; and (e) estimates of capital accounting; or (3) To revoke any SUPPLEMENTARY INFORMATION: or start-up costs and costs of operation, elections previously made. Title: Accounting for Long-Term maintenance, and purchase of services Current Actions: There is no change to Contracts. to provide information. these existing regulations. VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 56578 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Type of Review: Extension of a SUMMARY: The Department of the as their contents may become material currently approved collection. Treasury, as part of its continuing effort in the administration of any internal Affected Public: Business or other for- to reduce paperwork and respondent revenue law. Generally, tax returns and profit organizations. burden, invites the general public and tax return information are confidential, Estimated Number of Respondents: other Federal agencies to take this as required by 26 U.S.C. 6103. 2,500. opportunity to comment on proposed Request for Comments Estimated Time Per Respondent: 15 and/or continuing information minutes. collections, as required by the Comments submitted in response to Estimated Total Annual Burden Paperwork Reduction Act of 1995, this notice will be summarized and/or Hours: 625. Public Law 104–13 (44 U.S.C. included in the request for OMB The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is approval. All comments will become a of the collections of information covered soliciting comments concerning matter of public record. Comments are by this notice: Revenue Procedure 99–39, Form 941 e- invited on: (a) Whether the collection of An agency may not conduct or file Program. information is necessary for the proper performance of the functions of the sponsor, and a person is not required to DATES: Written comments should be agency, including whether the respond to, a collection of information received on or before December 20, 1999 information shall have practical utility; unless the collection of information to be assured of consideration. displays a valid OMB control number. (b) The accuracy of the agency’s ADDRESSES: Direct all written comments estimate of the burden of the collection Books or records relating to a collection to Garrick R. Shear, Internal Revenue of information must be retained as long of information; (c) Ways to enhance the Service, room 5244, 1111 Constitution quality, utility, and clarity of the as their contents may become material Avenue NW., Washington, DC 20224. in the administration of any internal information to be collected; (d) Ways to revenue law. Generally, tax returns and FOR FURTHER INFORMATION CONTACT: minimize the burden of the collection of tax return information are confidential, Requests for additional information or information on respondents, including as required by 26 U.S.C. 6103. copies of the revenue procedure should through the use of automated collection be directed to Carol Savage, (202) 622– techniques or other forms of information Request for Comments 3945, Internal Revenue Service, room technology; and (e) Estimates of capital Comments submitted in response to 5242, 1111 Constitution Avenue NW., or start-up costs and costs of operation, this notice will be summarized and/or Washington, DC 20224. maintenance, and purchase of services included in the request for OMB SUPPLEMENTARY INFORMATION: to provide information. approval. All comments will become a Title: Form 941 e-file Program. Approved: October 13, 1999. matter of public record. Comments are OMB Number: 1545–1557. Revenue Procedure Number: Revenue Garrick R. Shear, invited on: (a) Whether the collection of IRS Reports Clearance Officer. information is necessary for the proper Procedure 99–39. [FR Doc. 99–27416 Filed 10–19–99; 8:45 am] performance of the functions of the Abstract: Revenue Procedure 99–39 agency, including whether the provides the requirements of the Form BILLING CODE 4830±01±U information shall have practical utility; 941 e-file Program, which combines the Form 941 Electronic Filing (ELF) (b) The accuracy of the agency’s DEPARTMENT OF THE TREASURY estimate of the burden of the collection Program with an on-line filing program of information; (c) Ways to enhance the that allows a taxpayer to electronically Internal Revenue Service quality, utility, and clarity of the file a Form 941, Employer’s Quarterly information to be collected; (d) Ways to Federal Tax Return, using a personal Defined Benefit Pension Plans; minimize the burden of the collection of computer, modem, and commercial tax Solicitation for Comments information on respondents, including preparation software. AGENCY: Internal Revenue Service (IRS), through the use of automated collection Current Actions: There are no changes Treasury. techniques or other forms of information being made to the revenue procedure at ACTION: technology; and (e) Estimates of capital this time. Solicitation for comments. Type of Review: Extension of a or start-up costs and costs of operation, SUMMARY: currently approved collection. The IRS and the Department maintenance, and purchase of services of the Treasury are seeking public to provide information. Affected Public: Business or other for- profit organizations, not-for-profit comments regarding potential issues Approved: October 13, 1999. institutions, and Federal, state, local or arising under their jurisdiction with Garrick R. Shear, tribal governments. respect to retirement plans known as IRS Reports Clearance Officer. Estimated Number of Respondents/ cash balance pension plans (‘‘cash [FR Doc. 99–27415 Filed 10–19–99; 8:45 am] Recordkeepers: 390,200. balance plans’’), particularly with respect to conversions of other types of BILLING CODE 4830±01±U Estimated Average Time Per Respondent/Recordkeeper: 37 minutes. defined benefit pension plans into cash Estimated Total Annual Reporting/ balance plans. The purpose of these DEPARTMENT OF THE TREASURY Recordkeeping Burden Hours: 238,863. comments is to provide the IRS and The following paragraph applies to all Treasury with information that may be Internal Revenue Service of the collections of information covered taken into account in their analysis of by this notice: these issues. Proposed Collection; Comment An agency may not conduct or DATES: Comments are requested on or Request for Revenue Procedure 99±39 sponsor, and a person is not required to before January 19, 2000. AGENCY: Internal Revenue Service (IRS), respond to, a collection of information ADDRESSES: Send written comments to: Treasury. unless the collection of information Internal Revenue Service, Attn: displays a valid OMB control number. CC:DOM:CORP:R (Cash Balance Plans ACTION: Notice and request for Books or records relating to a collection and Conversions), Room 5226, P.O. Box comments. of information must be retained as long 7604, Ben Franklin Station, Washington, VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56579 DC 20044. Written comments may be contribution plan, such as a profit- balance plans, and associated wear- hand delivered Monday through Friday sharing plan. away or benefit plateau effects. All between the hours of 8 a.m. and 5 p.m. In recent years, existing defined comments submitted will be made to: Internal Revenue Service, Courier’s benefit plans covering a significant available for public inspection and Desk, Attn: CC:DOM:CORP:R (Cash number of employees have been copying, although the comments will Balance Plans and Conversions), 1111 changed into cash balance plans. This not be individually acknowledged. Constitution Avenue, NW, Washington, change, made by amending the existing Therefore, commentators should refrain DC 20224. Alternatively, written plan, is commonly referred to as a from including personal tax information comments may be submitted conversion. In a conversion, the new or other information that they believe electronically via the Internet by cash balance benefit formula generally should not be publicly disclosed. selecting the ‘‘Tax Regs’’ option on the applies to new employees and may also The IRS and Treasury would like to IRS Home Page, or by submitting them apply to employees who had already receive comments from the full range of directly to the IRS Internet site at: http: earned benefits under the plan before l parties with interests in cash balance //www.irs.gov/tax regs/regslist.html. the conversion. The law protects and similar plans, including employees, FOR FURTHER INFORMATION CONTACT: Mr. benefits earned before the conversion by employers, and their representatives. Kenneth M. Griffin, (202) 622–4604 (not prohibiting a plan amendment that The review of the legal issues relating to a toll-free number). reduces those benefits. cash balance and similar plans is being SUPPLEMENTARY INFORMATION: In some conversions, however, coordinated with the agencies that have employees who had already earned Background concurrent or overlapping jurisdiction benefits may not earn additional over other Federal laws (such as the Age A cash balance plan is a defined retirement benefits for varying periods Discrimination in Employment Act benefit pension plan that typically of time after the conversion. This effect, (ADEA) and Employee Retirement defines an employee’s retirement benefit often referred to as a ‘‘wear-away’’ or Income Security Act (ERISA)). by reference to the amount of a ‘‘benefit plateau,’’ continues until an Accordingly, copies of comments hypothetical account balance. In a employee’s benefit under the ongoing received that relate to those laws will be typical cash balance plan, this account cash balance formula ‘‘catches up’’ with provided to the appropriate agencies. is credited with hypothetical allocations the employee’s protected benefit. and interest that are determined under Dated: October 13, 1999. a formula set forth in the plan. The Comments Nancy J. Marks, crediting of hypothetical allocations and The IRS and Treasury invite public Acting Associate Chief Counsel, Employee hypothetical interest has been described comments regarding potential issues Benefits and Exempt Organizations, Internal as resembling the allocation of actual under their jurisdiction with respect to Revenue Service. contributions and actual earnings to an cash balance plans, conversions of [FR Doc. 99–27148 Filed 10–19–99; 8:45 am] employee’s account under a defined traditional defined benefit plans to cash BILLING CODE 4830±01±U VerDate 12-OCT-99 13:00 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 E:\FR\FM\20OCN1.XXX pfrm03 PsN: 20OCN1 eDt 2OT9 71 c 9 99Jt100 O000Fm001Ft41 ft41 :F\M2OR.X fm8PsN:20OCR2 pfrm08 E:\FR\FM\20OCR2.XXX Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt190000 17:13Oct19, 1999 VerDate 12-OCT-99 federal register October 20,1999 Wednesday vetch) asThreatened;FinalRules and Astragalusdesereticus(Deseretmilk- (Pecos Sunflower),DevilsRiverMinnow Plants; ListingHelianthusparadoxus Endangered andThreatenedWildlife 50 CFRPart17 Fish andWildlifeService Interior Department ofthe Part II 56581 56582 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations DEPARTMENT OF THE INTERIOR specimen as Helianthus petiolaris Flaveria chloraefolia, Scirpus olneyi (prairie sunflower) (Sitgreaves 1853). It (Olney bulrush), Phragmites australis Fish and Wildlife Service was not until 1958 that Dr. Charles (common reed), Distichlis sp. (saltgrass), Heiser named Helianthus paradoxus as Sporobolus airoides (alkali sacaton), 50 CFR Part 17 a new species citing two known Muhlenbergia asperifolia (alkali muhly), RIN 1018±AE88 specimens, the type specimen collected Juncus mexicanus (Mexican rush), September 11, 1947, by H.R. Reed west Suaeda calceoliformis (Pursh Endangered and Threatened Wildlife of Fort Stockton in Pecos County, Texas, seepweed), and Tamarix spp. (saltcedar) and Plants; Determination of and the Woodhouse specimen collected (Poole 1992, Sivinski 1995). All of these Threatened Status for the Plant in New Mexico (Heiser 1958). species are good indicators of saline Helianthus paradoxus (Pecos Heiser’s (1965) hybridization studies soils. Van Auken and Bush (1995) did Sunflower) helped resolve doubts about the validity studies that show Pecos sunflower of Pecos sunflower as a true species. grows in saline soils, but seeds AGENCY: Fish and Wildlife Service, Prior to Heiser’s studies there was some germinate and establish best when high Interior. speculation the plant was a hybrid water tables reduce salinities near the ACTION: Final rule. between Helianthus annuus (common soil’s surface. sunflower) and the prairie sunflower. Until 1990, Pecos sunflower was SUMMARY: We, the Fish and Wildlife Heiser’s studies demonstrated that known from only three extant sites. Two Service (Service) determine Helianthus Pecos sunflower is a fertile plant that sites were in Pecos County, Texas, and paradoxus (Pecos or puzzle sunflower) breeds true. Heiser was able to produce one site was in Chaves County, New to be a threatened species under the hybrids between Pecos sunflower and Mexico (Seiler et al. 1981). Searches of authority of the Endangered Species Act both common sunflower and prairie suitable habitats in Pecos, Reeves, and of 1973, as amended (Act). This species sunflower, but these hybrids were of Culbertson counties, Texas, during 1991 is dependent on desert wetlands for its low fertility. These results support the failed to locate any new Texas sites survival. It is known from 22 sites in validity of Pecos sunflower as a true (Poole 1992). However, searches in New Cibola, Valencia, Guadalupe, and species. In 1990, Rieseberg et al. Mexico from 1991 through 1994 located Chaves counties, New Mexico, and from published the results of molecular tests a significant number of new sites 3 sites in Pecos and Reeves counties, on the hypothesized hybrid origin of (Sivinski 1995). In Texas one new site Texas. Threats to this species include Pecos sunflower, using electrophoresis was reported in 1998 (Kargas 1998). drying of wetlands from groundwater to test enzymes and restriction-fragment Pecos sunflower is presently known depletion, alteration of wetlands (e.g. analysis to test ribosomal and from 25 sites that occur in 5 general wetland fills, draining, impoundment chloroplast DNA. This work identified areas. These areas are Pecos and Reeves construction), competition from non- Pecos sunflower as a true species of counties, Texas, in the vicinity of Fort native plant species, excessive livestock ancient hybrid origin with the most Stockton and Balmorhea; Chaves grazing, mowing, and highway likely hybrid parents being common County, New Mexico, from Dexter to maintenance. This rule implements the sunflower and prairie sunflower. just north of Roswell; Guadalupe Federal protection and recovery Pecos sunflower is an annual member County, New Mexico, in the vicinity of programs of the Act for this plant. of the sunflower family (Asteraceae). It Santa Rosa; Valencia County, New DATES: This rule is effective November grows 1.3–2.0 meters (m) (4.25–6.5 feet Mexico, along the lower part of the Rio 19, 1999. (ft)) tall and is branched at the top. The San Jose; and Cibola County, New leaves are opposite on the lower part of Mexico, in the vicinity of Grants. There ADDRESSES: The complete file for this the stem and alternate at the top. The are 3 sites in the Fort Stockton- rule is available for public inspection, leaves are lance-shaped with three Balmorhea area, 11 in the Dexter to by appointment, during normal business prominent veins, and up to 17.5 Roswell area, 8 in the Santa Rosa area, hours at the U.S. Fish and Wildlife centimeters (cm) (6.9 inches (in)) long 1 along the lower Rio San Jose, and 2 Service, New Mexico Ecological by 8.5 cm (3.3 in) wide. The stem and in the Grants area. Services Field Office, 2105 Osuna Road, leaf surfaces have a few short stiff hairs. Most of the Pecos sunflower sites are NE, Albuquerque, New Mexico 87113. The flower heads are 5.0–7.0 cm (2.0– limited to less than 2.0 hectares (ha) (5.0 FOR FURTHER INFORMATION CONTACT: 2.8 in) in diameter with bright yellow acres (ac)) of wetland habitat with some Charlie McDonald, Botanist, at the rays. Flowering is from September to being only a fraction of a hectare. Two above address (telephone 505–346–2525 November. Pecos sunflower looks much sites, one near Fort Stockton and one ext. 112; facsimile 505–346–2542). like the common sunflower seen along near Roswell, are considerably more SUPPLEMENTARY INFORMATION: roadsides throughout the west, but extensive. The number of plants per site differs from common sunflower in varies from less than 100 to several Background having narrower leaves, fewer hairs on hundred thousand for the 2 more Dr. S.W. Woodhouse, physician and the stems and leaves, slightly smaller extensive sites. Because Pecos naturalist, was the first person to collect flower heads, and flowers later. sunflower is an annual, the number of Pecos sunflower on August 26, 1851, Pecos sunflower grows in plants per site can fluctuate greatly from while on the Sitgreaves expedition to permanently saturated soils. Areas with year to year with changes in water explore the Zuni River and the Lower these conditions are most commonly conditions. Pecos sunflower is totally Colorado. The location was given as desert wetlands (cienegas) associated dependent on the persistence of its ‘‘Nay Camp, Rio Laguna’’ (Sitgreaves with springs, but may also include wetland habitat for even large 1853). The collection site is probably stream and lake margins. When plants populations will disappear if the located somewhere near the Rio Laguna grow around lakes, the lakes are usually wetland dries out. (now called the Rio San Jose) between impounded natural cienega habitats. Various Federal, State, Tribal, Laguna Pueblo and Bluewater in Cibola Plants commonly associated with Pecos municipal, and private interests own County, New Mexico. Dr. John Torrey, sunflower include Limonium limbatum and manage the Pecos sunflower sites. a botanical expert at the New York (Transpecos sealavender), Samolus Managing Federal agencies include the Botanical Garden, identified this cuneatus (limewater brookweed), Service, Bureau of Land Management, VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56583 and National Park Service. Plants are from hybrids could affect the genetic amendments further requires that all located on one New Mexico State park. integrity of small Pecos sunflower petitions pending on October 13, 1982, Plants are located on municipal populations. be treated as though they were newly property within the cities of Roswell submitted on that date. This was the Previous Federal Action and Santa Rosa. The Laguna Indian case for Helianthus paradoxus because Tribe owns and manages one site. Seven Federal government actions on Pecos of the acceptance of the 1975 different private individuals or sunflower began with section 12 of the Smithsonian report as a petition. On organizations own sites or parts of sites. Act, which directed the Secretary of the October 13, 1983, we made a petition Some plants grow on State or Federal Smithsonian Institution to prepare a finding that the listing of Helianthus highway rights-of-way. report on plants considered to be paradoxus was warranted, but Five sites are on property managed endangered, threatened, or extinct in the precluded by other pending listing principally for wildlife and endangered United States. The presentation of this actions, in accordance with section species conservation. Two major sites report, designated as House Document 4(b)(3)(B)(iii) of the Act. Notice of this are on Bitter Lake National Wildlife No. 94–51, occurred on January 9, 1975. finding was published on January 20, Refuge near Roswell, New Mexico. The On July 1, 1975, we published a notice 1984 (49 FR 2485). A warranted but refuge has a series of 6 spring-fed in the Federal Register (40 FR 27823) precluded finding requires that the impoundments totaling about 300 ha accepting the report as a petition within petition be recycled pursuant to section (750 ac). These impoundments are the context of section 4(c)(2) (now 4(b)(3)(C)(i) of the Act. This finding was managed with high water levels in section 4(b)(3)(A)) of the Act and reviewed annually from 1984 through winter followed by a spring and summer announcing our intent to review the 1997. Publication of a proposed rule in drawdown that simulates a natural status of the plants in the report. As a the Federal Register on April 1, 1998 water cycle. This regime provides consequence of this review, we (63 FR 15808), to designate Helianthus abundant habitat for Pecos sunflower published a proposed rule in the paradoxus as a threatened species that grows in almost solid stands at the Federal Register on June 16, 1976 (41 constituted the final 1-year finding for edge of some impoundments. There is a FR 24523), to designate approximately the petitioned action. small site with less than 100 plants on 1,700 vascular plants as endangered On June 15, 1998, we published a Dexter National Fish Hatchery near species. A final rule on the proposal had notice in the Federal Register (63 FR Dexter, New Mexico. Plants first not been published in 1978 when new 32635) announcing the reopening the appeared here several years ago after amendments to the Act required that all comment period and the location of saltcedar was removed to restore a proposals over 2 years old be withdrawn public hearings on the proposal. We wetland. with a 1-year grace period provided for held public hearings on July 8, 9, and The Nature Conservancy of Texas proposals already over 2 years old. We 13, 1998. owns and manages two sites, one near published a Federal Register notice on The processing of this final rule Fort Stockton, Texas, and the other near December 10, 1979 (44 FR 70796), conforms with our Listing Priority Balmorhea, Texas. Large desert springs withdrawing the June 16, 1976, Guidance for Fiscal Years 1998 and are the principal features of both proposed rule in addition to four other 1999, published on May 8, 1998 (63 FR preserves. The spring near Fort Stockton previously expired proposals. 25502). The guidance clarifies the order harbors two species of endangered fish On December 15, 1980 (45 FR 82480), in which we will process rulemakings and three species of endemic snails, we published an updated notice of giving highest priority (Tier 1) to plus a large Pecos sunflower population review of plants being considered for processing emergency rules to add that extends for about 1.2 kilometers endangered or threatened designation. species to the Lists of Endangered and (km) (0.75 miles (mi)) along the spring This notice included Helianthus Threatened Wildlife and Plants (Lists); run. Two springs near Balmorhea, paradoxus as a category 1 species, second priority (Tier 2) to processing purchased in 1997, harbor a species of which are those species for which we final determinations on proposals to add endangered fish and a population of had on file substantial information on species to the Lists, processing new several thousand Pecos sunflowers biological vulnerability and threats to listing proposals, processing (Karges 1998). support proposals to designate them as administrative findings on petitions (to The loss or alteration of wetland endangered or threatened. We retained add species to the Lists, delist species, habitats is the main threat to Pecos Helianthus paradoxus as a category 1 or reclassify listed species), and sunflower. The lowering of water tables species in subsequent notice of review processing a limited number of through aquifer withdrawals for of plants published in the Federal proposed and final rules to delist or irrigated agriculture; diversion of water Register on September 27, 1985 (50 FR reclassify species; and third priority from wetlands for irrigation, livestock, 39526), February 21, 1990 (55 FR 6184), (Tier 3) to processing proposed and final or other uses; wetland filling; and and September 30, 1993 (58 FR 51143). rules designating critical habitat. invasion of saltcedar and other non- Beginning with our February 28, 1996, Processing this final rule is a Tier 2 native species continues to destroy or candidate notice of review (61 FR 7596), action. degrade desert wetlands. Mowing of we discontinued the designation of some municipal properties and highway multiple categories of candidates, and Summary of Comments and rights-of-way regularly destroys some only those taxa meeting the definition of Recommendations plants. Livestock will eat Pecos former category 1 candidates are now In our April 1, 1998, proposed rule sunflowers, particularly if other green considered candidates for listing and associated notifications, we forage is scarce. There was some purposes. We retained Helianthus solicited interested parties to submit unregulated commercial sale of Pecos paradoxus as a candidate species in our factual reports or information to sunflowers in the past and some plant September 19, 1997, candidate notice of contribute to the development of a final collection for breeding programs to review (62 FR 49398). rule. In addition, contacts were made improve commercial sunflowers. Pecos Section 4(b)(3)(B) of the Act requires and we solicited comments from sunflower will naturally hybridize with the Secretary to make findings on appropriate State and Federal agencies common sunflower. There is concern pending petitions within 12 months of and representatives, Tribal about the extent to which backcrosses their receipt. Section 2(b)(1) of the 1982 governments, county governments, VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56584 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations municipal governments, scientific Response: The sunflowers are in a collections and the localities provided organizations, and other interested large genus with species distributed with the specimens are imprecise. parties. We published legal notices throughout North America. The However, several of the specimens soliciting comments in five taxonomy and distribution of these collected in Pecos County, Texas, newspapers—Albuquerque Journal on species has always attracted strongly indicate Pecos sunflower once April 6, 1998, Cibola County Beacon, considerable interest, particularly the grew in places where it no longer Grants, New Mexico, on April 8, 1998, annual species most closely related to occurs. The site 11 kilometers (or 7 Santa Rosa News on April 8, 1998, commercial sunflowers. Dr. Charles miles (mi)) west of Fort Stockton where Roswell Daily Record on April 6, 1998, Heiser and his colleagues thoroughly the type specimen (location of the and The Pioneer, Fort Stockton, Texas, investigated the annual sunflowers, population from which the plant was on April 8, 1998. In response to these examining thousands of specimens from first described as a species) was notices we received several requests for 41 herbaria in the United States and collected in 1947 was reported to still a public hearing. On June 15, 1998 (63 Canada (Heiser et al. 1969). They found have a remnant population in 1980 FR 32635), we published a notice in the no specimens of Pecos sunflower other (Seiler et al. 1981), but since that time Federal Register announcing the dates than those from near Fort Stockton, there are no reported findings of Pecos and times for three scheduled public Texas, and the Rio San Jose in New sunflowers. A specimen from ‘‘Fort hearings, and notifying the public of the Mexico. Other investigators such as Dr. Stockton’’ collected in 1943, is thought extension of the comment period until Gerald Seiler of the U.S. Department of to be from around Comanche Springs, August 13, 1998. Newspaper notices Agriculture, Dr. R.C. Jackson of Texas which is now dry and incapable of announcing the public hearings and Tech University, and Dr. Loren supporting Pecos sunflower. Although extended comment period appeared in Rieseberg of Indiana University studied there is a reported collection from the five newspapers listed above sunflowers throughout North America Escondido Creek occurring in the 1800s, between June 24 and 26, 1998. for years without finding Pecos the springs feeding this creek have been We received 14 written comments on sunflower beyond its present known dry for many years, are no longer the proposal. Seven commentors range. Our present knowledge of the suitable habitat, and are no longer supported the proposed listing; these distribution and abundance of Pecos marked on topographic maps. One of included two peer reviewers who also sunflower relies, in part, on the work of the public hearing attendees who provided pertinent information these earlier investigators. ranches in the Diamond Y area gave his included within this final rule, two The Pecos sunflower is a large plant recollection from 1949 of seeing a State agencies, and three individuals. with bright yellow flowers that often continuous stand of Pecos sunflowers Seven commentors opposed the grows in patches of thousands. Because along the then spring-fed draw (natural proposed listing; these included one its habitat is very specific and limited, drainage basin) that runs into Diamond State agency, one Indian Tribe, two it is unlikely that significant Y draw. The draw is now dry except for populations still remain unsurveyed private organizations, and three intermittent flows and Pecos sunflowers after recent intensive efforts to survey individuals. are absent. for this species. However, even if other These records and statements provide We received requests to hold a public populations are found, they are likely to good evidence the distribution and hearing requests from the New Mexico be subject to the same threats as the abundance of Pecos sunflower has Farm and Livestock Bureau; New known populations. declined in West Texas with the loss of Mexico County Farm and Livestock Issue 2: Listing is unwarranted until spring-fed wetlands. The collection Bureaus in Colfax, Cibola-McKinley, a determination is made regarding the record is inadequate to document and Santa Fe counties; Production species’ population ecology, pollinators, similar declines in New Mexico, but Credit Association of New Mexico; seed dispersers, seed viability, seed they are likely due to the alteration and Texas and Southwestern Cattle Raisers germination, and seed bank. loss of wetlands. Association; and Davis Mountains Response: While a comprehensive Issue 4: There is no data indicating Trans-Pecos Heritage Association. We understanding of the life history and that livestock grazing is contributing to held hearings on the proposed rule on ecology of a species is useful when the decline of this species. The July 8, 9, and 13, 1998, at Fort Stockton, available, that level of knowledge is not population on private land at Diamond Texas; Roswell, New Mexico; and required for listing. Listing a species as Y Spring is grazed showing Pecos Grants, New Mexico at which a total of threatened or endangered is based on sunflower can co-exist with grazing. 34 people attended. Of the five oral the five factors given in section 4(a)(1) Response: In the proposed rule we statements presented at the hearings, of the Act. These factors and their identified livestock gazing as a threat to one statement supported the listing, two application to Pecos sunflower are Pecos sunflower by stating, ‘‘Livestock opposed the listing, and two were discussed in the ‘‘Summary of Factors will eat Pecos sunflowers, particularly neutral. Affecting the Species’’ section of this when other green forage is scarce.’’ In The following summary contains our final rule. the only study of grazing effects on the response to the written comments we Issue 3: Evidence indicates that Pecos species, Bush and Van Auken (1997) received during the comment period sunflower has always been a rare found no significant differences and to oral statements made during the species with numbers that fluctuate between plants inside and outside cattle public hearings. Comments on a similar with yearly water conditions. There is exclosures during a 1-year study. topic are grouped by general issues. no documentation that the species is However, they are also careful to note Issue 1: Survey efforts were either significantly increasing or that ‘‘This experiment was completed inadequate to find all Pecos sunflower declining in the region as a whole. during a relatively wet year, and populations. Because Pecos sunflower is Listing is unwarranted until a perhaps there was enough forage a species of hybrid origin, survey efforts determination is made on the status of available for the herbivores. In should encompass the entire range the species. subsequent years during times of where the two parental species overlap, Response: Declines in rare plant drought, we have observed severe which includes the plains region from species can be difficult to document herbivory of H. paradoxus and extreme Canada to Mexico. when there are relatively few historical differences in the stem length and VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56585 number of flowers (unpublished). replace former natural spring-fed Federal agency policies that protect Therefore, the effects of large grazers of wetlands and still rely on those springs candidate species. H. paradoxus may be dependent on the for water. There is a high probability Response: While these measures are availability of moisture and its effects that Pecos sunflowers grew around the important for conservation, the threats on the grazers preferred forage plants.’’ springs before the refuge impoundments to the species have not been reduced or This agrees with our (the Service’s) were built. removed so that listing is no longer observations of grazing on Pecos Issue 9: Hybridization is a natural necessary. We find that enough Pecos sunflower. It is possible to have grazing event and should not be considered a sunflower populations lack sufficient at Pecos sunflower populations, as threat. protection to warrant listing the species evidenced by the Diamond Y Spring Response: Hybridization between as threatened. site, but good grazing management is Pecos sunflower and common sunflower Issue 12: There are many conservation still needed to prevent or reduce may not be a totally natural occurrence. measures for Pecos sunflower that can damage to the populations. Substantial increases in the habitat of be implemented without the need for Issue 5: In addition to grazing by common sunflower can result from Federal listing and these measures livestock, consider the effects of human land disturbances and the would be more effective than the predation from wildlife species and construction of road ditches. These protections provided under the Act. insects. Additional studies are needed disturbances have made it possible for These include: State listing in Texas to determine elk damage to riparian common sunflower to grow much closer under chapter 88 of the Texas Parks and areas in New Mexico. to Pecos sunflower than was possible in Wildlife Code; funding to hire a botanist Response: Although we have not seen the past. Because of concerns about to do surveys, develop a conservation significant wildlife or insect predation hybridization, personnel from the Texas strategy, and work with local on Pecos sunflower, such impacts are Parks and Wildlife Department have landowners; horticultural propagation possible. Insects and their damage to been removing common sunflowers of Pecos sunflowers for introduction maturing seeds can go undetected from the road ditches near the Pecos into unoccupied suitable habitats; because the plants may otherwise sunflower population at Texas Highway purchase of lands through the New appear perfectly normal. Elk in New 18 north of Fort Stockton. Even if such Mexico Natural Lands Protection Act or Mexico usually occur at much higher hybridization was completely natural, the Federal Land and Water elevations than the Pecos sunflower we still must consider the effects of Conservation Fund; development of a populations. Pecos sunflower potentially hybridizing regional water plan for West Texas Issue 6: Pecos sunflower can survive with other species under Factor E of the through recently passed State periods of natural drought. Threats ‘‘Summary of Factors Affecting the legislation; and conservation in the Rio associated with problem years having Species’’ section of this final rule. Puerco watershed in New Mexico little or no rainfall should be attributed Issue 10: Because listing may increase through a recently funded multi-agency to natural causes. collecting and vandalism through watershed initiative. Response: We agree droughts occur heightened attention to the species and Response: We must base our listing naturally and contribute to poor because Pecos sunflowers will not be determinations on current threats. For growing conditions for Pecos sunflower protected from collecting or destruction example, the general obligation bond to during some years. We consider natural on private lands, listing will increase provide funding for the New Mexico factors affecting the species under risks to the species rather than reducing Lands Protection Act was defeated in a Factor E of the ‘‘Summary of Factors them. recent general election leaving no funds Affecting the Species’’ section of this Response: We believe the for land acquisition. Listing the species final rule. The Act directs us to consider conservation measures for listed species as threatened and the subsequent both natural factors and human-caused described in the ‘‘Available drafting of a recovery plan will increase threats in determining whether a species Conservation Measures’’ section of this the likelihood that agencies, is endangered or threatened. final rule greatly outweigh any risks organizations, and individuals will be Issue 7: The statement that Pecos associated with listing. We are also able to accomplish conservation sunflowers grow on the dams of man- minimizing those potential risks measures for this species. We encourage made impoundments appears to through our ‘‘not prudent’’ finding for further implementation of conservation contradict the statement that the species the designation of critical habitat (see measures for the Pecos sunflower, and is dependent on wetlands. discussion under Critical Habitat, we will consider delisting the species Response: We acknowledge that the below) and through outreach and when it becomes sufficiently protected statement that Pecos sunflowers plants education directed towards individual and recovered to ensure its continued grow on dams does need some private landowners. survival. clarification. Plants found on dams grow Issue 11: Listing is not warranted Issue 13: Because of the many actions in saturated soils either at the shoreline because other management and on Tribal lands that are authorized, or where there is seepage through the protection measures are already funded, or carried out by the Bureau of dam. Pecos sunflowers do not grow on removing threats to the species Indian Affairs, listing this species will the dry upland portion of a dam. including: protective management on place the largest section 7 consultation Issue 8: The focus on the loss of The Nature Conservancy’s preserves and burden on the Laguna Tribe. This is natural wetlands appears misplaced, Bitter Lake National Wildlife Refuge, the contrary to the intent of Secretarial especially when one of the largest presence of several federally listed fish Order 3206 and Executive Order 13084 known populations occupies created species at some sites that already serve that strive to ensure Indian Tribes do wetlands at Bitter Lake National to protect the essential habitat, not bear a disproportionate burden for Wildlife Refuge. protection in New Mexico through State the conservation of listed species. Response: Our discussion emphasizes listing, a management agreement Response: Because only one of the 25 the loss of natural wetlands because between the Texas Department of known sites for Pecos sunflower occurs these losses exceed the rate of wetland Transportation and the Texas Parks and on Tribal lands, we anticipate that most creation. The wetlands created at Bitter Wildlife Department for the population activities for the conservation of Pecos Lake National Wildlife Refuge simply on Texas Highway 18, and various sunflower will be undertaken by other VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56586 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations agencies, organizations, and A. The Present or Threatened withdrawals taking place in the vicinity individuals. The one site on Tribal Destruction, Modification, or of the other Pecos sunflower sites in lands probably occupies only a few Curtailment of its Habitat or Range New Mexico. The introduction of non-native acres and is in a remote undeveloped Wetland habitats in the desert species, particularly saltcedar, is a major part of the reservation. It is unlikely Southwest are both ecologically factor in the loss and degradation of there will be many actions at this site important and economically valuable. Southwestern wetlands. Several species that will require section 7 consultation. Wetlands cover only about 195,000 ha of saltcedar were introduced into the If consultation is needed, we will seek (482,000 ac) (0.6 percent) of New United States for ornamental purposes to find ways to both conserve the listed Mexico (Fretwell et al. 1996). This is a as windbreaks, and as stream bank species and complete the action. Our reduction of about 33 percent from the stabilization in the 1800s. Saltcedar and hope is that we can help Pecos wetland acreage that existed 200 years other non-native vegetation invaded sunflower to recover through voluntary ago (Dahl 1990). Wetlands in Texas many western riverine systems from the efforts and cooperation with other cover 3,077,000 ha (7,600,000 ac), a Federal agencies, States, local and 1890s to the 1930s and increased decline of about 52 percent from the rapidly from the 1930s to the 1950s, by Tribal governments and private State’s original wetland acreage (Dahl landowners and conservation groups. which time they occupied most of the 1990). The loss of springs in western available and suitable habitat in New Issue 14: Listing Pecos sunflower will Texas may be a better indicator of Mexico and western Texas (Horton have negative economic impacts on the wetland losses that affect Pecos 1977). farmers, ranchers, and communities sunflower than estimates for the State as Saltcedar will out-compete and where it occurs. a whole. Within the historical range of displace native wetland vegetation, Response: We believe the listing of Pecos sunflower in Pecos and Reeves including Pecos sunflower. At Dexter the Pecos sunflower as threatened will counties, only 13 of 61 (21 percent) National Fish Hatchery, Pecos not force private landowners to change springs remain flowing (Brune 1981 in sunflower appeared for the first time in any existing land practices. We Poole 1992). the summer of 1996 after saltcedar was anticipate that any economic impacts of The lowering of water tables due to removed to rehabilitate a wetland listing will be minimal due to the small groundwater withdrawals for irrigated (Radke 1997). Saltcedar affects 2,000 ha number of populations that are agriculture, municipalities, and other (5,000 ac) at Bitter Lake National involved. The Act requires listing uses has reduced available habitat for Wildlife Refuge where the most determinations to be made solely on the Pecos sunflower, particularly in Texas. extensive Pecos sunflower population basis of the best available scientific and Beginning around 1946, groundwater occurs (Service 1996). Although there commercial information regarding the levels fell as much as 120 m (400 ft) in have been many projects on refuges to species’ status without reference to Pecos County and 150 m (500 ft) in remove saltcedar, these projects are possible economic or other impacts of Reeves County due to heavy pumping labor intensive and reinvasion of the determination. Economic for irrigation. As a result, most of the saltcedar is a continuing problem. considerations may only be considered springs in these counties have gone dry. We know that some wetlands where in the designation of critical habitat and Groundwater pumping has lessened in Pecos sunflower occurs have either been in recovery planning and recent decades due to the higher cost of filled or impounded. Part of a wetland implementation. removing water from deeper aquifers in near Grants, New Mexico, was filled for the ground, but rising water tables or Issue 15: Designation of critical real estate development along a major resumption of spring flows are not habitat would help farmers and ranchers highway. The development predated expected (Brune 1981 in Poole 1992). manage the species by showing them knowledge that Pecos sunflower grows Diamond Y Spring, which has a large where it occurs. in the area, so it is unknown if any Pecos Sunflower population, remains plants were actually destroyed. Present Response: As with every Federal flowing largely because it comes from a development in this area that could listing, we conduct intensive outreach saline strata unsuitable for agricultural affect Pecos sunflower includes to inform landowners if the species or municipal uses. construction of a discount department occurs on their land. We believe that Texas water law provides no store and other smaller shops, and information about the location of protection for remaining springs. The reconstruction of a highway overpass. populations is best handled through law is based on the right of first capture Wetlands in Santa Rosa were lost direct contact with individual that lets any water user pump as much many years ago to impoundment created landowners. The reasons for our ‘‘not groundwater as can be put to a for a fish hatchery that has since been prudent’’ finding for the designation of beneficial use without regard to overall abandoned. Pecos sunflowers grow in critical habitat are given in the ‘‘Critical effects on the aquifer. Recently passed wet soils on some impoundment dams. Habitat’’ section of this final rule. Texas legislation directs the Because the extent of this former Summary of Factors Affecting the development of regional water plans in wetland habitat is unknown, it is Species the State, but it is too soon to know if uncertain whether these impoundments this planning effort will have any have actually increased or decreased Section 4 of the Act (16 U.S.C. 1531 beneficial effects for Pecos sunflower. sunflower habitat. et seq.) and regulations (50 CFR part Groundwater pumping affected Pecos Alteration of habitat is occurring by 424) promulgated to implement the sunflower habitats in Chaves County, mowing on some highway rights-of-way listing provisions of the Act set forth the New Mexico, but water tables are now and some municipal properties where procedures for adding species to the rising due to State-directed efforts at Pecos sunflower occurs. In Santa Rosa, Federal lists. We determine a species to monitoring and conservation. These the weeds and some Pecos sunflowers be endangered or threatened due to one efforts are the result of a court ruling are often mowed around some of the old or more of the five factors described in that requires New Mexico to deliver fish hatchery ponds now used for section 4(a)(1). These factors and their larger volumes of Pecos River water to recreational fishing. In another part of application to Helianthus paradoxus Texas than in the past. There are town an open boggy area is mowed Heiser (Pecos sunflower) are as follows: presently no major groundwater when dry enough. In years when it is VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56587 too wet to mow, a stand of Pecos their jurisdictions (Sivinski and intensive livestock grazing, and the sunflowers develops. Mowing of Lightfoot 1995). The penalty for invasion of saltcedar and other non- highway rights-of-way in Santa Rosa violating NMSA is a misdemeanor native plants into many wetlands has and near Grants may be destroying some carrying a fine of not more than $1,000 significantly reduced the habitat of this plants. In Texas, the only population in and/or incarceration for not more than species. Most remaining populations are a highway right-of-way was fenced 120 days; by comparison, the criminal vulnerable because these and other several years ago to protect it from penalty for violation of the Federal Act activities continue to destroy habitat or mowing and other activities. carries a fine of not more than $50,000 keep it in a degraded condition. While and/or imprisonment for not more than not in immediate danger of extinction, B. Overutilization for Commercial, 1 year, a much greater deterrent than the Pecos sunflower is likely to become Recreational, Scientific, or Educational that available under State law. In an endangered species in the foreseeable Purposes general, State listing fails to generate the future if present trends continue. Some commercial trade in Pecos level of recognition or promote the Critical Habitat sunflower has occurred in the past opportunities for conservation that (Poole, Texas Parks and Wildlife result through Federal listing. Most Section 3 of the Act defines critical Department, Austin, in litt. 1991). This importantly, NMSA lacks the habitat as—(i) The specific areas within trade was undertaken by an organization interagency coordination and the geographical area occupied by a interested in preserving rare species of conservation requirements found in species, at the time it is listed in indigenous crop plants through their section 7 of the Federal Act. Pecos accordance with the Act, on which are distribution and cultivation. There was sunflower is not listed as an found those physical or biological also some collecting for crop breeding endangered, threatened, or as a features (I) essential to the conservation research (Seiler et al. 1981). With its protected plant under the Texas of the species and (II) that may require tolerance for high salinity, Pecos Endangered Plant Species Act. special management consideration or sunflower is considered a good protection; and (ii) specific areas candidate for the introduction of salt E. Other Natural or Manmade Factors outside the geographical area occupied tolerance into cultivated sunflowers. Affecting Its Continued Existence by a species at the time it is listed, upon Some Pecos sunflower sites are both Natural hybrids between Pecos a determination that such areas are small and easily accessible. Repeated sunflower and common sunflower can essential for conservation of the species. uncontrolled collecting may harm these occur and are known from sites in both ‘‘Conservation’’ means the use of all sites. Texas and New Mexico. Habitat for methods and procedures needed to common sunflower is increased by bring the species to the point at which C. Disease or Predation human activities and the two listing under the Act is no longer Livestock eat Pecos sunflowers, sunflowers may be in greater contact necessary. particularly when other green forage is than in the past. Natural hybrids have Section 4(a)(3) of the Act, as scarce. Livestock tend to pull off the low fertility, but are not completely amended, and implementing regulations flower heads. If an area is heavily grazed sterile (Heiser 1965). A measure of (50 CFR 424.12) require that, to the for several years in succession when isolation between the two species is maximum extent prudent and plants are flowering, the soil seed bank provided by the different flowering determinable, we designate critical may diminish and the population will times for Pecos sunflower and common habitat at the time the species is eventually decline. There are several sunflower. Hybrids are likely to be determined to be endangered or examples of Pecos sunflowers being intermediate between the two species in threatened. We find that designation of absent from habitat that is heavily flowering time and may serve as a critical habitat is not prudent for Pecos grazed, but growing in similar nearby bridge for gene flow between the sunflower. Our regulations (50 CFR habitat that is protected from grazing. In species. Once a bridge is established, 424.12(a)(1)) state that designation of these instances, grazing is the most the genetic swamping of small Pecos critical habitat is not prudent when one likely cause of the plant’s absence from sunflower populations could occur or both of the following situations otherwise suitable habitat. There are rapidly. exist—(1) The species is threatened by also examples of Pecos sunflower Natural droughts are common in the taking or other human activity, and populations persisting in areas grazed desert regions where Pecos sunflower identification of critical habitat can be for many years. Apparently the type and occurs. These droughts combined with expected to increase the degree of threat intensity of grazing has much to do with the effects of wetland alterations and to the species, or (2) such designation of the persistence of Pecos sunflower in losses could extirpate some small critical habitat would not be beneficial these areas. There have been no populations. The present distribution of to the species. observations of wildlife grazing or insect Pecos sunflower coincides with areas Critical habitat designation for Pecos damage on Pecos sunflower. having large reliable springs and this sunflower is not prudent for both of the may in part be a response to the effects above reasons. There has been some D. The Inadequacy of Existing of natural droughts. commercial trade in Pecos sunflower, Regulatory Mechanisms We have carefully assessed the best which was due largely to its rarity (See Pecos sunflower is listed as a New scientific and commercial information Factor B of the ‘‘Summary of Factors Mexico State endangered plant species available regarding the past, present, Affecting the Species’’ section). There in NMNRD Rule 85–3 of the State and future threats faced by this species are several documented instances of Endangered Plant Species Act (9–10–10 in determining to issue this final rule. other species of commercially valuable NMSA). The scientific collection, Based on this evaluation, our preferred rare plants being collected when their commercial transport, and sale of Pecos action is to list Pecos sunflower as a localities became known. In 1995, at sunflower is already regulated by threatened species. The drying of least 48 plants of the endangered NMSA. However, NMSA does not springs due to ground water pumping, Pediocactus knowltonii (Knowlton protect habitat on private land or the diversion of water for agriculture cactus) were taken from a monitoring require collecting permits for Federal and other uses, the filling of wetlands, plot at the species’ only known locality employees working on lands within the degradation of wetlands from (Sivinski, New Mexico Forestry VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56588 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Division, Santa Fe, in litt. 1996). In the critical habitat would also likely Water Act, the Natural Resources early 1990s, the rediscovery of Salvia jeopardize the species’ continued Conservation Service that provides penstemonoides (big red sage) in Texas existence. Designation of critical habitat private landowner planning and led to the collection of thousands of for Pecos sunflower on Federal lands, assistance for various soil and water seeds at the single rediscovery site therefore, is not prudent because it conservation projects, the Federal (Poole, in litt. 1991). would provide no additional benefit to Highway Administration for highway Listing contributes to the risk of over the species beyond that conferred by construction and maintenance projects collecting because the rarity of a plant listing. that receive funding from the is made known to far more people than Department of Transportation, the Available Conservation Measures were aware of it previously. Designating Bureau of Indian Affairs that has trust critical habitat, including the required Conservation measures provided to responsibilities for certain activities on disclosure of precise maps and species listed as endangered or Indian lands, and various agencies of descriptions of critical habitat, would threatened under the Act include the Department of Housing and Urban further advertise the rarity of Pecos recognition, recovery actions, Development that undertake sunflower and provide a road map to requirements for Federal protection, and homeowner mortgage insurance and occupied sites causing even greater prohibitions against certain activities. community development programs. threat to this plant from vandalism or Recognition through listing encourages We considered the potential impacts unauthorized collection. Many of the and results in conservation actions by of designating Pecos sunflower as a Pecos sunflower sites are small, have Federal, State, and private agencies, threatened plant species in relation to few individuals, and are easily groups, and individuals. The elevated the compliance of this action with accessible. These sites would be profile Federal listing affords enhances Secretarial Order 3206. That order was particularly susceptible to the likelihood that conservation issued to clarify the responsibilities of indiscriminate collection if publication activities will be undertaken. The Act the component agencies, bureaus, and of critical habitat maps made their exact provides for possible land acquisition offices of the Department of the Interior locations known. and cooperation with the States and and the Department of Commerce, when Critical habitat designation, by requires that recovery actions be carried actions taken under authority of the Act definition, directly affects only Federal out for all listed species. The protection and associated implementing agency actions. Private interests own 13 required of Federal agencies and the regulations affect, or may affect, Indian of the 25 Pecos sunflower sites. For the prohibitions against certain activities lands, Tribal trust resources, or the most part, activities constituting threats involving listed plants are discussed, in exercise of American Indian Tribal to the species on these lands, including part, below. rights. In keeping with the trust alterations of wetland hydrology, Section 7(a) of the Act requires responsibility and government-to- competition from non-native vegetation, Federal agencies to evaluate their government relationships, we recognize grazing, and agricultural and urban actions with respect to species that are our responsibility to consult with development, are not subject to the listed or proposed for listing as affected Tribes and provide written Federal review process under section 7. endangered or threatened and with notice to them as far in advance as Designation of critical habitat on private respect to those species’ designated or practicable of conservation restrictions lands provides no benefit to the species proposed critical habitat, if any. that we consider necessary to protect when only non-Federal actions are Regulations implementing this listed species. involved. interagency cooperation provision of the Secretarial Order 3206 states that, ‘‘If Activities on Federal lands and some Act are codified at 50 CFR part 402. a proposed conservation restriction is activities on private lands require Section 7(a)(4) of the Act requires directed at a Tribal activity that could Federal agencies to consult with us Federal agencies to confer with us on raise the potential issue of direct under section 7. There are few known any action that is likely to jeopardize (directed) take under the Act, then sites for Pecos sunflower and habitat for the continued existence of a proposed meaningful government-to-government the species is limited. Given these species or result in destruction or consultation shall occur, in order to circumstances, any activity that would adverse modification of proposed strive to harmonize the Federal trust adversely modify designated critical critical habitat. If a species is listed responsibility to Tribes, Tribal habitat would likely also jeopardize the subsequently, section 7(a)(2) requires sovereignty and the statutory missions species’ continued existence. Thus, in Federal agencies to ensure that activities of the Department of Interior and this case, the Federal agency prohibition they authorize, fund, or carry out are not Commerce.’’ The term ‘‘take’’ as defined against adverse modification of critical likely to jeopardize the continued in the Act means to harass, harm, habitat would provide no additional existence of such a species or to destroy pursue, hunt, shoot, wound, kill, trap, benefit beyond the prohibition against or adversely modify its critical habitat. capture, or collect, or to attempt to jeopardizing the species. If a Federal action may adversely engage in any such conduct. The Act Occupied habitat for Pecos sunflower affect a listed species or its critical has no prohibitions against take for occurs on a National Wildlife Refuge habitat, the responsible Federal agency listed plants; instead, regulations for and a National Fish Hatchery, which we must enter into formal consultation with threatened plants found at 50 CFR 17.71 administer; a National Monument the us. Federal agencies that manage prohibit their removal or reduction to National Park Service administers, and occupied Pecos sunflower habitat are possession from areas under Federal public lands the Bureau of Land the ones most likely to have activities jurisdiction. For threatened plants, there Management administers. Because these that involve section 7 consultation. are no prohibitions against their occupied habitats are well known to These agencies are the Bureau of Land removal and reduction to possession these Federal land managers, no adverse Management, National Park Service, and from areas outside Federal jurisdiction modification of this habitat is likely to Fish and Wildlife Service. Other or against their damage or destruction in occur without consultation under agencies with potential section 7 any area when no removal and section 7 of the Act. Because of the involvement include the U.S. Army reduction to possession are involved. small size of the species’ habitat, any Corps of Engineers through its permit We know of no instance where Indian adverse modification of the species’ authority under section 404 of the Clean Tribal members collect (i.e. remove and VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56589 reduce to possession) Pecos sunflowers Listing Pecos sunflower will require special purposes consistent with the for cultural, spiritual, religious, or us to development a recovery plan to purposes of the Act. economic reasons. Therefore, we do not help coordinate Federal, State, and Pecos sunflower is uncommon both in believe the prohibition against removal private efforts to conserve this species. cultivation or in the wild, and there was or reduction to possession from areas The plan will establish a framework for only limited commercial trade in the under Federal jurisdiction will affect agencies to coordinate activities and species. Therefore, it is anticipated few Indian lands, Tribal trust resources, or cooperate in conservation efforts. The trade permits will ever be sought or the exercise of American Indian Tribal plan will set recovery priorities, issued. You should direct requests for rights. estimate costs of various tasks, and copies of the regulations concerning the We met with representatives of the describe site-specific management trade of listed plants and general Laguna Tribe on March 12, 1998, prior actions necessary to achieve inquiries regarding prohibitions and to publication of the listing proposal to conservation and survival of the species. permits to the U.S. Fish and Wildlife discuss our intention to propose Pecos Additionally, under section 6 of the Act, Service (see ADDRESSES section). sunflower for protection under the Act. we will be able to grant funds to the Information collections associated with We discussed with them range-wide states of New Mexico and Texas for these permits are approved under the threats to the species, conservation management actions promoting the Paperwork Reduction Act, 44 U.S.C. measures listing would initiate, protection and recovery of Pecos 3501 et seq., and assigned Office of prohibitions that would result from sunflower. Management and Budget clearance listing, Tribal activities that occur in the Because many of the known Pecos number 1018–0094. For additional area where the sunflower grows on sunflower sites are on private land, we information about these permits and Tribal lands, and the role of Federal will pursue conservation easements and associated requirements, see 50 CFR agencies (especially the BIA) in insuring conservation agreements with willing 17.72. that activities they authorize, fund, or private landowners to help maintain It is our policy (59 FR 34272; July 1, carry out do not jeopardize the and/or enhance habitat for the plant. 1997) to identify to the maximum extent continued existence of listed species. Under a cooperative program between practicable at the time we list a species We discussed the value of monitoring to us and the State of New Mexico, those activities that would or would not assess conservation needs and indicated contacts were made with all private constitute a violation of the section 9 we would provide whatever assistance landowners and the importance of Pecos prohibitions of the Act. The intent of we could for monitoring and a sunflower and the consequences for the this policy is to increase public conservation program on Tribal lands. private landowner of having it listed awareness of the effect of this listing on Subsequently, we were contacted by a under the Act explained. To date, no proposed and ongoing activities within Tribal representative to provide agreements are established but several the species’ range. You may take the whatever information we had landowners indicate a willingness to following actions, without violation of concerning Pecos sunflower. We went continue with discussions. section 9, when carried out in through our files with the representative The Act and its implementing accordance with existing regulations and supplied those documents thought regulations found at 50 CFR 17.71 and and permit requirements: useful to the Tribe. We kept the Tribe 17.72 set forth a series of general (1) Activities authorized, funded, or informed during the listing proposal prohibitions and exceptions that apply carried out by Federal agencies (e.g., process with notifications about to all threatened plants. All trade wetland modification; the construction proposal comment requests and public prohibitions of Section 9(a)(2) of the or maintenance of drainage ditches, hearings. Act, implemented by 50 CFR 17.71, construction of impoundments or other A question was raised concerning the apply. These prohibitions, in part, make livestock watering facilities, power line potential effect listing this plant might it illegal for any person subject to the construction, maintenance, and have on future Indian water rights jurisdiction of the United States to improvement; highway construction, claims. The Pecos sunflower on Tribal import or export, transport in interstate maintenance, and improvement; lands occurs at springs adjacent to the or foreign commerce in the course of a mineral exploration and mining,) when Rio San Jose. These springs, although commercial activity, sell or offer for sale such activity is conducted in near the river, are not dependent on it this species in interstate or foreign accordance with any reasonable and for their flows. If upstream water rights commerce, or to remove and reduce to prudent measures given by us according claims reduced flows in the Rio San possession the species from areas under to section 7 of the Act. These activities Jose, the sunflower would likely be Federal jurisdiction. Seeds from may require Federal, State, and/or local unaffected. The area where the springs cultivated specimens of threatened approval under other laws or occur is presently used for grazing. The plants are exempt from these regulations. Tribe indicates no planned land use prohibitions provided that their (2) Normal agricultural practices, changes that would create new demands containers are marked ‘‘Of Cultivated including mowing or clearing, and light on water from the springs. Finally, if Origin.’’ Certain exceptions to the to moderate livestock grazing, and any water use changes led to loss of the prohibitions apply to agents of the pesticide and herbicide use, carried out sunflower on Tribal lands it would not Service and State conservation agencies. in accordance with any existing violate any of the limited prohibitions The Act and 50 CFR 17.72 also regulations, permit and label applicable to threatened plants given in provide for the issuance of permits to requirements, and best management section 9 of the Act or in 50 CFR 17.71. carry out otherwise prohibited activities practices. Water use changes occurring on non- involving threatened plant species (3) Clearing a defensible space for fire Federal lands and having no Federal under certain circumstances. Such protection and normal landscape nexus would also not be subject to the permits are available for scientific activities around one’s personal requirements of section 7 of the Act. purposes and to enhance the residence. Given these conditions, we cannot propagation or survival of the species. We believe that the following might foresee a circumstance where listing For threatened plants, permits are also potentially result in a violation of Pecos sunflower as a threatened plant available for botanical or horticultural section 9; however, possible violations would affect Indian water rights claims. exhibition, educational purposes, or are not limited to these actions alone: VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56590 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations (1) Removal, cutting, digging up, Environmental Impact Statements, as List of Subjects in 50 CFR Part 17 damaging, or destroying threatened defined under the authority of the plants on non-Federal land if conducted National Environmental Policy Act of Endangered and threatened species, in knowing violation of State law or 1969, need not be prepared in Exports, Imports, Reporting and regulation or in violation of State connection with regulations adopted recordkeeping requirements, criminal trespass law. pursuant to section 4(a) of the Transportation. (2) Interstate or foreign commerce and Endangered Species Act of 1973, as Regulation Promulgation import/export without previously amended. We published a notice obtaining an appropriate permit. outlining our reasons for this PART 17Ð[AMENDED] (3) The unauthorized removal, determination in the Federal Register reducing to possession or collection of on October 25, 1983 (48 FR 49244). Accordingly, the Service amends part this species from areas under Federal 17, subchapter B of chapter I, title 50 of Required Determinations jurisdiction. the Code of Federal Regulations, as In appropriate cases, permits could be This rule does not contain collections follows: issued to allow collection for scientific of information that require Office of 1. The authority citation for part 17 or recovery purposes, for horticultural Management and Budget approval or botanical exhibition, for educational continues to read as follows: under 44 U.S.C. 3501 et seq. purposes, or for special purposes Authority: 16 U.S.C. 1361–1407; 16 U.S.C. consistent with the purposes of the Act. References Cited 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– You should direct questions regarding 625, 100 Stat. 3500; unless otherwise noted. whether specific activities may A complete list of all references cited constitute a violation of section 9 to the herein is available on request from the 2. In § 17.12(h) add the following to Field Supervisor of the New Mexico U.S. Fish and Wildlife Service, New the List of Endangered and Threatened Ecological Services Field Office (see Mexico Ecological Services Field Office Plants in alphabetical order under ADDRESSES ADDRESSES section). (see section). FLOWERING PLANTS: Author: The primary author of this § 17.12 Endangered and threatened plants. National Environmental Policy Act final rule is Charlie McDonald, New We have determined that Mexico Ecological Services Field Office * * * * * Environmental Assessments and (see ADDRESSES section). (h) * * * Species Historic range Family Status When Critical Special Scientific name Common name listed habitat rules FLOWERING PLANTS ******* Helianthus paradoxus ..... Pecos sunflower (=puzzle U.S.A. (NM, TX) ... Asteraceae ...... T 667 NA NA sunflower, paradox sun- flower). ******* Dated: September 14, 1999. John G. Rogers, Acting Director, Fish and Wildlife Service. [FR Doc. 99–27186 Filed 10–19–99; 8:45 am] BILLING CODE 4310±55±P DEPARTMENT OF THE INTERIOR Endangered Species Act of 1973, as East 1300 South, Salt Lake City, Utah amended (Act). Astragalus desereticus, 84115. Fish and Wildlife Service considered extinct until its rediscovery FOR FURTHER INFORMATION CONTACT: John in 1981, exists in one small population 50 CFR Part 17 L. England at the above address in Utah County, Utah. Threats to the (telephone: 801/524–5001). RIN 1018±AE57 plant include residential development, SUPPLEMENTARY INFORMATION: highway widening, livestock grazing Endangered and Threatened Wildlife and trampling, and other impacts to its Background and Plants; Final Rule to List limited habitat. This plant receives no Marcus E. Jones collected a distinctive Astragalus desereticus (Deseret milk- protection under State or local laws or Astragalus from ‘‘below Indianola,’’ a vetch) as Threatened regulations. This rule implements town in Sanpete County, Utah, on June Federal protection provided by the Act AGENCY: 2, 1893. This same plant was again Fish and Wildlife Service, for this plant. Interior. collected by Ivar Tidestrom from ‘‘near EFFECTIVE DATE: November 19, 1999. ACTION: Final rule. Indianola’’ on June 17, 1909. Specimens ADDRESSES: The complete file for this from these two collections laid in SUMMARY: We, the U.S. Fish and rule is available for public inspection, obscurity in various herbaria until Wildlife Service (Service), determine by appointment, during normal business Rupert Barneby recognized their the plant species, Astragalus desereticus hours at the Utah Ecological Services uniqueness and described them as (Deseret milk-vetch), to be a threatened Field Office, U.S. Fish and Wildlife Astragalus desereticus (Barneby 1964). species under the authority of the Service, Lincoln Plaza Suite 404, 145 Efforts to relocate the species’ VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56591 population were initially fruitless tridentata), and plateau beardtongue proposals over 2 years old be (Barneby 1964, Welsh 1978a, 1978c) (Penstemon scariosus) (Franklin 1990). withdrawn, although proposals leading to a presumption of extinction The sole population of Astragalus published before the 1978 amendments’ (Ripley 1975, Welsh 1975, 1978b). desereticus consists of between 5,000 enactment could not be withdrawn However, on May 27, 1981, Elizabeth and 10,000 individuals that grow on an before the end of a 1-year grace period Neese discovered a population of A. area of less than 120 hectares (ha) (300 beginning on the enactment date. On desereticus on a sandstone outcrop acres (ac)) (Franklin 1990, Stone 1992). December 10, 1979, we published a above the town of Birdseye, Utah The species’ total range is notice of withdrawal (44 FR 70796) of County, Utah, less than 6.2 kilometers approximately 2.6 km (1.6 (mi)) long, that portion of the June 16, 1976, (km) (10 miles (mi)) from Indianola and 0.5 (km) (0.3 mi) across. Extensive proposal that had not been made final, (Welsh and Chatterley 1985). This searches of similar habitat in Utah and which included A. desereticus. population remains the only known Sanpete Counties, Utah, have failed to On December 15, 1980, we published occurrence of the species (Franklin identify any other populations (Franklin a revised notice of review for native 1990, 1991, Service 1991). It is possible 1991, Larry England, Service, pers. plants in the Federal Register (45 FR that this population is the one from comm. 1997). The land upon which A. 82480) designating Astragalus which Jones and/or Tidestrom made desereticus grows is owned by the State desereticus a category 1 species. At that their collections more than 70 years of Utah and three private land owners time, we defined category 1 candidates earlier (Franklin 1990, 1991, Welsh and (Franklin 1990, 1991; Chris Montague, as those taxa for which we had on file Chatterley 1985). The Nature Conservancy, 1992, 1997 sufficient information on biological Astragalus desereticus is a perennial, pers. comm.). Astragalus desereticus is vulnerability and threats to support herbaceous, sub-acaulescent (almost threatened by grazing and trampling by preparation of listing proposals. In stemless) plant in the bean family ungulates, alteration of its habitat due to addition, A. desereticus was identified (Fabaceae). Individual plants are residential development and road as a species that may have recently approximately 4–15 centimeters (cm) widening, and natural events, such as become extinct. In 1981, a population of (2–6 inches (in)) in height, and arise fire, due to its limited distribution. A. desereticus was discovered. On November 28, 1983, we published a from a caudex (the persistent base of an Previous Federal Action revised notice of review in the Federal otherwise annual herbaceous stem). Section 12 of the Act (16 U.S.C. 1531 Stems are about 6 cm (2 in) tall. The Register (48 FR 53640) in which A. et seq.) directed the Secretary of the desereticus was included as a category pinnately compound leaves (feather-like Smithsonian Institution to prepare a 2 candidate species. Category 2 arrangement with leaflets displayed on report on those plants considered to be candidates were formally defined as a central stalk) are 4–11 cm (2–4 in) long endangered, threatened, or extinct. The taxa for which data on biological with 11–17 leaflets. The leaflets are Secretary presented this report, vulnerability and threats indicated that elliptic to ovate in shape, with a dense designated as House Document No. 94– listing was possibly appropriate, but for silvery gray pubescence (short hairs) on 51, to Congress on January 9, 1975. On which data were not sufficient to both sides. The species’ flowers are of July 1, 1975, we published a notice in support issuance of listing proposals. In the characteristic papilionaceous form the Federal Register (40 FR 27823) preparing the 1983 notice, we deemed it common to the bean family, 1.8–2.2 cm accepting the report as a petition to list appropriate to acquire additional (0.7–0.9 in) long, white in color with a those taxa named therein under section information on the distribution and purple tip on the keel, and borne on a 4(c)(2) of the Act (petition acceptance is abundance of A. desereticus before stalk of 5–10 flowers. The seed pods are now governed by section 4(b)(3) of the proposing the species for listing. We 1 to 2 cm (0.4–0.8 in) long, densely Act), and its intention to review the maintained A. desereticus as a category covered with lustrous hairs, and bear status of those plants. Astragalus 2 species in updated notices of review 14–16 ovules (a minute rudimentary desereticus was included in the July 1, published in the Federal Register on structure from which a plant seed 1975, notice on list ‘‘C,’’ indicating that September 27, 1985 (50 FR 39526), and develops after fertilization). Detailed the species was probably extinct. February 21, 1990 (55 FR 6184). As a descriptions of A. desereticus can be On June 16, 1976, we published a result of additional information found in Barneby (1964, Barneby in proposed rule in the Federal Register obtained in 1990 and 1991 status Cronquist et al. 1989), and in Welsh (41 FR 24523) to designate surveys (Franklin 1990 and Service (1978c, Welsh et al. 1987, 1993). approximately 1,700 vascular plant 1991), we reclassified A. desereticus as The only known population of species, including Astragalus a category 1 candidate in the September Astragalus desereticus occurs primarily desereticus, as endangered pursuant to 30, 1993, notice of review (58 FR on steep south- and west-facing slopes. section 4 of the Act. The Smithsonian 51144). Upon publication of the The plant grows on soils derived from Institution and the Service assembled February 28, 1996, Notice of Review, (61 a specific and unusual portion of the this list of 1,700 plant species on the FR 7596), we ceased using category geologic Moroni Formation. This basis of comments and data received in designations and included A. geologic feature is characterized by response to House Document No. 94–51 desereticus as a candidate species. coarse, crudely bedded conglomerate and the July 1, 1975, Federal Register Candidate species are those for which (Franklin 1990). The plant community publication. In the proposed rule, we the Service has on file sufficient in which A. desereticus occurs is also designated A. desereticus as a information on biological vulnerability dominated by pinon pine (Pinus edulis) species about which we were and threats to support proposals to list and Utah juniper (Juniperus particularly interested in obtaining any the species as threatened or endangered. osteosperma). Other associated plant new information on living specimens We maintained Astragalus desereticus species include: sagebrush (Artemisia and extant populations. General as a candidate in the September 19, tridentata), scrub oak (Quercus comments received in relation to the 1997, Notice of Review (62 FR 49398). gambelii), wild buckwheat (Eriogonum 1976 proposal are summarized in an Section 4(b)(3)(B) of the Act’s 1982 brevicaule), Indian ricegrass (Stipa April 26, 1978, Federal Register amendments required the Secretary of hymenoides), needle and thread grass publication (43 FR 17909). The 1978 the Interior to make findings on certain (Stipa comata), bitter brush (Purshia amendments to the Act required that all petitions within 1 year of their receipt. VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56592 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Section 2(b)(1) of the Act’s 1982 Salt Lake Tribune and the Deseret News Summary of Factors Affecting the amendments further required that all on February 10, 1998, and the Daily Species petitions pending as of October 13, Herald on February 11, 1998. After a thorough review and 1982, be treated as having been newly In accordance with our policy consideration of all information submitted on that date. Because we published in the Federal Register on available, we have determined that accepted the 1975 Smithsonian report July 1, 1994 (59 FR 34270), we solicited Astragalus desereticus should be and the Service’s notices as petitions, the expert opinion of three appropriate classified as a threatened species. In we treated all the taxa contained in and independent specialists regarding making this determination we have those notices, including Astragalus pertinent scientific or commercial data followed the procedures set forth in desereticus, as having been newly and assumptions relating to the section 4(a)(1) of the Act and regulations petitioned on October 13, 1982. The implementing the listing provisions of deadline for a finding on such petitions, supportive biological and ecological the Act (50 CFR part 424). We may including that for A. desereticus, was information for Astragalus desereticus. determine a species to be an endangered October 13, 1983. Since that date, we The purpose of this review is to ensure or threatened species due to one or more made successive 1-year findings that that listing decisions are based on of the five factors described in section listing A. desereticus was warranted, but scientifically sound data, assumptions, 4(a)(1). These factors and their precluded by other listing actions of and analyses, including input of application to Astragalus desereticus higher priority. Our proposal to list A. appropriate experts and specialists. One Barneby (Deseret milk-vetch) are as desereticus as threatened on January 28, specialist responded in writing agreeing follows: 1998 (63 FR 4207), constituted the with our analysis and supporting the warranted 12-month finding for this proposed action, while two others A. The Present or Threatened species. responded verbally agreeing with our Destruction, Modification, or The processing of this final rule analysis. Curtailment of its Habitat or Range conforms to our Listing Priority During the comment period we Astragalus desereticus is known from Guidance for Fiscal Years 1998 and reviewed a total of three written one small population of about 5,000 1999 published in the Federal Register comments. We did not receive any reproducing individuals and several on May 8, 1998 (63 FR 25502). The comments on the issues raised in our thousand immature plants on less than guidance clarifies the order in which we discussion of the biology or threats to 120 ha (300 ac) (Franklin 1990, Stone will process rulemakings. Highest the species. Two commenters, including priority is processing emergency listing 1992). This species is endemic to one the respondent peer reviewer, concurred rules for any species determined to be unusual narrow geologic strata facing a significant and imminent risk to with our proposal to list Astragalus characterized by coarse, poorly sorted its well being (Tier 1). Second priority desereticus as threatened. The third conglomerate. Any conversion or (Tier 2) is processing final commenter stated that the Service destruction of A. desereticus habitat has determinations on proposed additions should not list A. desereticus because it the potential to jeopardize the species’ species to the lists of endangered and has no authority under the Act to list or limited population. Urban development threatened wildlife and plants; the regulate species that are not involved in of the Wasatch Front metropolitan area processing of new proposals to add interstate commerce. is rapidly spreading into the species to the lists; the processing of We believe that the application of the surrounding agricultural lands, administrative petition findings to add Act to Astragalus desereticus does not especially small communities in the drainages of the Provo, Spanish Fork, species to the lists, delist species, or exceed Congress’s Commerce Clause and Weber Rivers (Quality Growth reclassify listed species (petitions filed authority under the U.S. Constitution Efficiency Tools Technical Committee under section 4 of the Act); and a for the reasons given in Judge Wald’s 1997 (QETTC)). The population growth limited number of proposed or final opinion and Judge Henderson’s of this metropolitan area is expected to rules to delist or reclassify species. concurring opinion in National Third priority (Tier 3) is processing double by the year 2020. In addition, Association of Home Builders v. Babbitt, conversion of agricultural land to urban proposed or final rules designating 130 F.3d 1041 (D.C. Cir. 1997), cert. critical habitat. The processing of this use is expected to double in the same denied, 1185 S. Ct. 2340 (1998). That time period (QGETTC 1997). Highly final rule is a Tier 2 action. We have case involved a challenge to application updated this rule to reflect any changes accessible rural areas, such as Birdseye, of the Act’s prohibitions to protect the may grow in population at an even more in information concerning distribution, listed Delhi Sands flower-loving fly. As status, and threats since the publication rapid rate. Since the species’ with A. desereticus, the Delhi Sands of the proposed rule. rediscovery, one landowner has built a flower-loving fly is endemic to only one private residence within the species’ Summary of Comments and state. Judge Wald held that application occupied habitat. Prior to 1998, the Recommendations of the Act’s prohibitions against taking town of Birdseye contained about 20 In the January 28, 1998, proposed rule of endangered species to this fly was a homes. Since the publication of the and associated notifications, we proper exercise of Commerce Clause proposed rule, a 70-unit residential requested all interested parties to power to regulate: (1) Use of channels of subdivision began construction adjacent submit factual reports or information interstate commerce; and (2) activities to the south side of the species’ that might contribute to the substantially affecting interstate population. The entire A. desereticus development of a final rule. We commerce because it prevented loss of population is within 300 meters (m) contacted and requested comments from biodiversity and destructive interstate (1,000 feet (ft)) of U.S. Highway 89. The all appropriate Federal and State competition. Judge Henderson upheld nearest plants are within a few meters agencies, County governments, protection of the fly because doing so of the road. U.S. Highway 89 is scientific organizations, and other prevents harm to the development that currently a two-lane rural highway. interested parties. We published is part of interstate commerce. See Gibbs With increasing human population in newspaper notices requesting public v. Babbitt, 31 F.Supp.2d 531 (E.D.N.C. the general area of southern Utah comment on the proposed rule in The 1998). County and northern Sanpete County, it VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56593 is likely that this road will be expanded alkaloids as metabolic byproducts. The perhaps this contributed to the species’ to four lanes. Such a highway widening known alkaloid producers as well as the presumed extinction (Welsh 1985, could destroy a significant portion of selenium accumulators are not closely Franklin 1990). Indianola, Utah, and the the species population (QGETTC 1997). related to A. desereticus. The third type species’ current known population near Astragalus desereticus is located on of poison found within Astragalus are Birdseye, Utah, are about 4.4 km (7 mi) highly accessible public and private various nitrotoxins. Ruminants in apart. The specific geological land that is currently used for cattle particular are highly susceptible to characteristics of A. desereticus habitat grazing and wildlife management nitrotoxin poisoning. Some species are uncommon within the Moroni (Franklin 1991, Stone 1992). The land closely related to A. desereticus contain Formation, though the formation is managed by the Utah Division of nitrotoxins (Barneby 1989). While A. exposed for a much larger area in Wildlife Resources is a wildlife desereticus may not be preferred forage southern Utah County and northern management area that also is used for for cattle or native ungulates, it is Sanpete County, Utah. Although it is cattle grazing (Franklin 1991). Cattle are palatable and may be inadvertently thought that some additional used by the Utah Division of Wildlife taken along with preferred forage in the populations of A. desereticus were Resources (DWR) in spring to encourage area. present at or near Indianola as reported plant growth for big game forage in the In surveys of habitat similar to that by Jones in 1893 and Tidestrom in 1909, winter. This grazing occurs within the occupied by Astragalus desereticus in there are no known populations existing habitat of A. desereticus (Stone 1992). Utah County, our personnel observed in that location today. Other unknown The cattle tend to concentrate primarily that overgrazing by domestic ungulates factors may affect the current on the upslope areas where forage has almost completely denuded the distribution and vitality of A. production is greater (Stone 1992). landscape (Service 1991). Similar desereticus populations. Erosion in these areas is exacerbated by grazing pressure is known from the cattle grazing and game trails. In current habitat of A. desereticus; A potential threat to Astragalus addition to the effects of erosion, therefore, the effects of grazing, desereticus is related to the populations trampling threatens A. desereticus particularly overgrazing, constitute a of ungulates in the area and their effect particularly at the southern end of the likely threat. This species is much less on pollinators. Other species in the population (Franklin 1991). As cattle abundant in the more heavily grazed genus Astragalus suffer from low and wildlife graze the habitat of A. southern portion of its habitat (Franklin numbers of pollinators due to the desereticus, the animals are likely to 1990, 1991), indicating that grazing may indirect effect that ungulates can have trample plants. Although mule deer be a significant threat. Cattle grazing on the pollinator’s nest sites (Stone numbers have stabilized in recent years, may be particularly harmful because it 1992). Bumblebees (Bombus spp.), Rocky Mountain elk populations are occurs during a critical period for A. which nest in abandoned rodent increasing. Although currently DWR has desereticus reproduction (i.e., flowering) burrows, are likely the primary no specific plans for the conservation of (Stone 1992). pollinators of A. desereticus. Land use A. desereticus, they are interested in There are no known insect parasites practices that increase grazing pressure developing guidelines for the or disease organisms that significantly may cause burrows to collapse, conservation of Deseret milkvetch to affect this species. destroying bumblebee nests (Stone work in concert with their primary goal 1992). Since bees have a low fecundity D. The Inadequacy of Existing of enhancing big game winter range. The (low capability of producing offspring), Regulatory Mechanisms DWR is interested in acquiring property their populations may not recover for interests in additional winter range Astragalus desereticus receives no many years, particularly if grazing by lands also occupied by A. desereticus. protection or consideration under any large ungulates is maintained. An Federal, State, or local law or regulation absence of effective pollinators would B. Overutilization for Commercial, other than that provided by the Act. Recreational, Scientific, or Educational probably reduce the fecundity of A. Purposes E. Other Natural or Manmade Factors desereticus. Overutilization is not known to be a Affecting Its Continued Existence In preparing this final rule we have threat to Astragalus desereticus. By virtue of the limited number of carefully reviewed the best scientific individuals and range of the remaining and commercial information available C. Disease or Predation population of Astragalus desereticus, regarding the past, present, and future In contrast to many species of this species is threatened with threats faced by Astragalus desereticus. Astragalus, A. desereticus appears to be extinction from naturally occurring Based on this evaluation, the preferred palatable to cattle. The genus Astragalus events. The probability that a natural action is to list A. desereticus as has the largest number of species in the event such as fire, drought, or disease threatened. Threatened status reflects Intermountain west, many of which are will cause extinction is greater for the vulnerability of this species to poisonous to grazing animals. Three species having a small population and factors that may negatively affect the types of poisonous compounds are highly restricted range (Stone 1992). species and its extremely limited found within the genus. Some species Rare species in the genus Astragalus habitat. While not in immediate danger within the genus concentrate the toxic have exhibited low levels of genetic of extinction, A. desereticus is likely to element selenium in their tissues; these diversity when compared to other more become an endangered species in the species are called selenophytes (Stone widespread, closely related species foreseeable future if present threats 1992). The fact that A. desereticus does (Stone 1992). Low genetic variability continue or increase. We have contacted not produce a ‘‘snake-like’’ odor typical makes it difficult for a species to the current land owners and although of other ‘‘snakeweeds,’’ as selenophytes respond to changes in the environment many are receptive in the near-term to are sometimes called, and the fact that thus making them more vulnerable to providing for passive protection, having no other selenophytes occur in the area, extinction. no immediate plans for development, in indicate that A. desereticus is not a The original locality description for the long-term they continue to have selenophyte (Stone 1992). Other Astragalus desereticus at Indianola is expectations for the future use and Astragalus species produce poisonous thought to be over-generalized and development of their properties. VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56594 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Critical Habitat DWR managers and others involved in likely to jeopardize the continued Section 4(a)(3) of the Act and the management of the area. Therefore, existence of such a species or destroy or implementing regulations (50 CFR designation of critical habitat would adversely modify its critical habitat. If a 424.12) require that, to the maximum provide no benefit with respect to Federal action may affect a listed extent prudent and determinable, the notification. In addition, given the species or its critical habitat, the Secretary designate critical habitat at the species’ narrow distribution and responsible Federal agency must enter time a species is determined to be precarious status, virtually any into formal consultation with us. The single known population of endangered or threatened. Service conceivable adverse affect to the Astragalus desereticus is on State and regulations (50 CFR 424.12(a)(1)) state species’ habitat would very likely privately owned land. However, that designation of critical habitat is not jeopardize its continued existence. highway widening, which may prudent when one or both of the Designation of critical habitat for A. adversely affect A. desereticus, due to following situations exist: (1) the desereticus would, therefore, provide no benefit to the species apart from the the proximity of the plants to a major species is threatened by taking or other protection afforded by listing the plant highway project, may in part be funded human activity, and identification of as threatened. by the Federal Highway Administration critical habitat can be expected to Protection of the habitat of A. and involve consultation under section increase the degree of threat to the desereticus will be addressed through 7 of the Act. species, or (2) such designation of the section 4 recovery process and the The Act and its implementing critical habitat would not be beneficial section 7 consultation process. regulations set forth a series of general to the species. We have determined that Although this plant occurs only on trade prohibitions and exceptions that the designation of critical habitat for A. private and State land, it may be apply to all threatened plants. All desereticus is not prudent due to the affected by projects with Federal prohibitions of section 9(a)(2) of the Act, lack of benefit to the species. connections, including potential Federal implemented by 50 CFR 17.71 for Critical habitat receives consideration Highway Administration funding of threatened plants, apply. These under section 7 of the Act with regard road widening. We believe that prohibitions, in part, make it illegal for to actions carried out, authorized, or activities involving a Federal action any person subject to the jurisdiction of funded by a Federal agency (see which may affect A. desereticus can be the United States to import or export, ‘‘Available Conservation Measures’’ identified without designation of critical transport in the course of a commercial section). As such, designations of habitat, by providing Federal agencies activity, sell or offer for sale this species critical habitat may affect activities on with information on the location of in interstate or foreign commerce, or Federal lands and may affect activities occupied habitat and information on the remove and reduce the species to on non-Federal lands where such a kinds of activities which could affect possession from areas under Federal Federal nexus exists. Under section 7 of the species. For the reasons discussed jurisdiction. In addition, for plants the Act, Federal agencies are required to above, we find that the designation of listed as endangered, the Act prohibits ensure that their actions do not critical habitat for A. desereticus is not the malicious damage or destruction on jeopardize the continued existence of a prudent. areas under Federal jurisdiction and the listed species or result in destruction or removal, cutting, digging up, damaging, adverse modification of critical habitat. Available Conservation Measures or destruction of such plants in knowing However, both jeopardizing the Conservation measures provided to violation of any State law or regulation, continued existence of a species and species listed as endangered or or in the course of a violation of State adverse modification of critical habitat threatened under the Act include criminal trespass law. Section 4(d) of have similar standards and thus similar recognition, recovery actions, the Act allows for the provision of such thresholds for violation of section 7 of requirements for Federal protection, and protection to threatened species through the Act. In fact, biological opinions that prohibitions against certain practices. regulation. This protection may apply to conclude that a Federal agency action is Recognition through listing encourages this species in the future if such likely to adversely modify critical and results in conservation actions by regulations are promulgated. Seeds from habitat but not jeopardize the species for Federal, State, and private agencies, cultivated specimens of threatened which the critical habitat has been groups and individuals. The Act plants are exempt from these designated are extremely rare. Also, the provides for possible land acquisition prohibitions provided that their designation of critical habitat for the and cooperation with the State, and containers are marked ‘‘Of Cultivated purpose of informing Federal agencies requires that recovery actions be carried Origin.’’ Certain exceptions to the of the location of A. desereticus habitat out for all listed species. Such actions prohibitions apply to agents of the is not necessary because we can inform are initiated by the Service following Service and State conservation agencies. Federal agencies through other means. listing. The protection required of The Act and 50 CFR 17.72 also For these reasons, the designation of Federal agencies and the prohibitions provide for the issuance of permits to critical habitat for A. desereticus would against certain activities involving listed carry out otherwise prohibited activities provide no additional benefit to the plants are discussed, in part, below. involving threatened species under species beyond that conferred by listing, Section 7(a) of the Act, requires certain circumstances. Such permits are and, therefore, such designation is not Federal agencies to evaluate their available for scientific purposes and to prudent. actions with respect to any species that enhance the propagation or survival of Astragalus desereticus has an is proposed or listed as endangered or the species. For threatened plants, extremely narrow distribution in a threatened and with respect to its permits are also available for botanical sandstone outcrop, totaling about 120 ha critical habitat, if any is being and horticultural exhibition, (300 ac) in one population. At the designated. Regulations implementing educational purposes, or special reasons present time, no other site is known to this interagency cooperation provision consistent with the Act’s purposes. With be occupied or suitable for this plant. of the Act are codified at 50 CFR part respect to Astragalus desereticus, it is The private land owners at Birdseye are 402. Section 7(a)(2) requires Federal anticipated that few, if any, trade aware of the plant’s presence and agencies to ensure that activities they permits would be sought or issued since extremely limited habitat, as are the authorize, fund, or carry out are not the species is not common in the wild VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56595 and is unknown in cultivation. Requests National Environmental Policy Act Nature Conservancy. Salt Lake City, for copies of the regulations regarding We have determined that Utah. 18 pp. listed species and inquiries about Environmental Assessments and Welsh, S.L. 1978a. Status Report prohibitions and permits may be Environmental Impact Statements, as Astragalus desereticus. Unpublished addressed to: Regional Director, U.S. defined under the authority of the report prepared for the U.S. Fish and Fish and Wildlife Service, P.O. Box National Environmental Policy Act of Wildlife Service. Denver, Colorado. 5 25486, Denver Federal Center, Denver, 1969, need not be prepared in pp. Colorado 80225. connection with regulations adopted Welsh, S.L. 1978b. Endangered and It is our policy, published in the pursuant to section 4(a) of the Act. A Threatened Plants of Utah: A Federal Register on July 1, 1994 (59 FR notice outlining the basis for this Reevaluation. Great Basin Naturalist 34272), to identify to the maximum determination was published in the 38(1)1–18. extent practicable those activities that Federal Register on October 25, 1983 Welsh, S.L. 1978c. Utah Flora: Fabaceae would or would not constitute a (48 FR 49244). (Leguminosae). Great Basin Naturalist violation of section 9 of the Act if the 38(3):225–367. Required Determinations species is listed. The intent of this Welsh, S.L., N.D. Atwood, and J.L. policy is to increase public awareness of This rule does not contain collections Reveal. 1975. Endangered, the effect of the listing on proposed and of information that require Office of Threatened, Extinct, Endemic, and ongoing activities within a species’ Management and Budget approval Rare or Restricted Utah Vascular range. This species is not known to be under the Paperwork Reduction Act, 44 Plants. Great Basin Naturalist located on areas under Federal U.S.C. 3501 et seq. An information 35(4):327–376. jurisdiction. We believe the actions collection related to the rule pertaining Welsh, S.L., N.D. Atwood, L.C. Higgins, listed below would not result in a to permits for endangered and and S. Goodrich. 1987. A Utah Flora. violation of section 9: threatened species has OMB approval Great Basin Naturalist Mem. No. 9, 1– (1) Activities authorized, funded, or and is assigned clearance number 1018– 897. carried out by Federal agencies (e.g., 0094. This rule does not alter that grazing management, agricultural Welsh, S.L., and L.M. Chatterley. 1985. information collection requirement. For Utah’s Rare Plants Revisited. Great conversions, range management, rodent additional information concerning control, mineral development, road Basin Naturalist 45:173–236. permits and associated requirements for U.S. Fish and Wildlife Service. 1991. construction, human recreation, threatened plants, see 50 CFR 17.72. pesticide application, controlled burns) Astragalus desereticus: Supplemental and construction/maintenance of References Cited Status Report. Salt Lake City, Utah. 4 projects (e.g., fences, power lines, Barneby, R.C. 1964. Atlas of North pp. pipelines, utility lines) when such American Astragalus. Mem. of The Author: The primary author of this activities are conducted according to all New York Botanical Gardens proposed rule is John L. England (see reasonable and prudent measures 13(II):597–1188. ADDRESSES section). provided by the Service under section 7 Barneby, R.C. in A. Cronquist, A.H. List of Subjects in 50 CFR Part 17 of the Act; Holmgren, N.H. Holmgren, J.L. (2) Casual, dispersed human activities Reveal, and P.K. Holmgren. 1989. Endangered and threatened species, on foot (e.g., bird watching, sightseeing, Intermountain Flora, Volume 3, Part Exports, Imports, Reporting and photography, and hiking). B. Fabales. Columbia University recordkeeping requirements, The actions listed below may Press, New York, New York. 279 pp. Transportation. potentially result in a violation of Franklin, M.A. 1990. Report for 1990 Regulation Promulgation section 9; however, possible violations Challenge Cost Share Project, Manti- are not limited to these actions alone: LaSal National Forest. Target Species: Accordingly, amend part 17, (1) Unauthorized collecting of the Astragalus desereticus. Unpublished subchapter B of chapter I, title 50 of the species on Federal Lands; report prepared by the Utah Natural Code of Federal Regulations, as set forth (2) Application of herbicides in Heritage Program, Salt Lake City, below: violation of label restrictions; Utah. 5 pp + xiv. (3) Interstate or foreign commerce and Franklin, M.A. 1991. Deseret Milkvetch. PART 17Ð[AMENDED] import/export without previously Sego Lily, Newsletter of the Utah 1. The authority citation for part 17 obtaining an appropriate permit. Native Plant Society 15(2):6–8. continues to read as follows: Permits to conduct activities are Quality Growth Efficiency Tools available for scientific purposes, the Technical Committee. 1997. Baseline Authority: 16 U.S.C. 1361–1407; 16 U.S.C. enhancement of the propagation or Scenario. Report on file with the Utah 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– survival, economic hardship, botanical Governors Office of Planning and 625, 100 Stat. 3500, unless otherwise noted. or horticultural exhibition, educational Budget. 58 pp. 2. Amend section 17.12(h) by adding purposes, or other activities consistent Ripley, S.D. 1975. Report on the following, in alphabetical order with the purposes and policy of the Act. Endangered and Threatened Species under ‘‘FLOWERING PLANTS,’’ to the Questions regarding whether specific of the United States. House Document List of Endangered and Threatened activities, such as changes in land use, 94–51. 200 pp. Reprinted in Federal Plants: would constitute a violation of section Register 40(127): 27824–27924. 9 should be directed to the Utah Stone, R.D. 1992. Element Stewardship § 17.12 Endangered and threatened plants. Ecological Services Field Office (see Abstract for Astragalus desereticus. * * * * * ADDRESSES section). Unpublished report prepared for The (h) * * * VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56596 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Species Historic range Status When listed Critical Special Scientific name Common name habitat rules FLOWERING PLANTS ******* Astragalus desereticus ...... Deseret milk-vetch ...... U.S.A. (UT) ...... T 668 NA NA ******* Dated: September 30, 1999. actions already accomplished under this The species has a narrow head with Jamie Rappaport Clark, Agreement, have reduced the prominent dark markings on scale Director, Fish and Wildlife Service. imminence of the threats to the species pockets above the lateral line that [FR Doc. 99–27187 Filed 10–19–99; 8:45 am] sufficiently to justify a threatened produce a cross-hatched appearance BILLING CODE 4310±55±P designation. This action will implement when viewed from the top (Hubbs and Federal protection provided by the Act Brown 1956). for the Devils River minnow. We Little information is available on life DEPARTMENT OF THE INTERIOR determine that designation of critical history characteristics, feeding patterns, habitat for the Devils River minnow is or reproductive behaviors of this Fish and Wildlife Service not prudent. species. However, based on their EFFECTIVE DATES: The effective date of extended intestinal tract, species of the 50 CFR Part 17 this rule is November 19, 1999. genus Dionda are considered to feed RIN 1018±AE 86 ADDRESSES: The complete file for this primarily on algae. Since Dionda rule is available for inspection, by episcopa, a closely related species, are Endangered and Threatened Wildlife appointment, during normal business broadcast spawners with nonadhesive and Plants; Final Rule To List the hours at the Austin Ecological Services eggs that sink to the substrate (Johnston Devils River Minnow as Threatened Field Office, 10711 Burnet Road, Suite and Page 1992), we believe Devils River AGENCY: Fish and Wildlife Service, 200, Austin, Texas, 78758. minnows are as well. Interior. FOR FURTHER INFORMATION CONTACT: General habitat associations for Devils River minnow have been described as ACTION: Final rule. Nathan Allan, Fish and Wildlife Biologist, at the above address, channels of fast-flowing, spring-fed SUMMARY: We, the U.S. Fish and telephone 512/490–0057, or facsimile waters over gravel substrates (Harrell Wildlife Service, determine the Devils 512/490–0974. 1978). Although the species is closely River minnow (Dionda diaboli) to be a SUPPLEMENTARY INFORMATION: associated with spring systems, it most threatened species under the authority often occurs where spring flow enters a of the Endangered Species Act of 1973, Background stream, rather than in the spring outflow as amended (Act). The Devils River The Devils River minnow (Dionda itself (Hubbs and Garrett 1990). The minnow is a small fish with a known diaboli Hubbs and Brown) is classified species is adapted to the hydrologic distribution limited to three locations in in the Cyprinidae (minnow) family. It variations inherent in desert river Val Verde and Kinney counties, Texas, was first collected from Las Moras systems (Harrell 1978), which are and one drainage in Coahuila, Mexico. Creek, near Brackettville, Texas, on characterized by extended droughts and The species’ range is significantly April 14, 1951. The species was extreme flash floods (USGS 1989). reduced and fragmented due to habitat described by Hubbs and Brown (1956) The Devils River minnow is part of a loss from dam construction, spring from specimens collected in the Devils unique fish fauna in west Texas streams dewatering, and other stream River at Baker’s Crossing (southern-most where a mixture of fishes occur, modifications. The numbers of Devils bridge crossing of State Highway 163) in including Mexican peripherals, local River minnows collected during fish 1951. The species occurs with similar endemics, and widespread North surveys over the past 25 years have minnows, such as the closely related American fishes (Hubbs 1957). About declined; once one of the most abundant manantial roundnose minnow (Dionda half of the native fishes of the fish in the Devils River, the minnow has argentosa) and is also related to the Chihuahuan Desert of Mexico and Texas now become one of the least abundant. more common roundnose minnow are considered by Hubbs as threatened The species’ decline in abundance in (Dionda episcopa). Devils River minnow (1990) and at least four species have the Devils River may be attributed to the is recognized as a distinct species by the been documented to be extinct (Miller et effects of both habitat modification and American Fisheries Society (Robins et al. 1989), primarily due to habitat possibly predation by smallmouth bass al. 1991) based on morphological destruction and introduced species. (Micropterus dolomieu), an introduced characteristics (Hubbs and Brown 1956), The Devils River minnow is native to game fish. genetic markers (Mayden et al. 1992), tributary streams of the Rio Grande in We originally proposed to list the and chromosome differences (Gold et al. Val Verde and Kinney counties, Texas, Devils River minnow as endangered. 1992). and Coahuila, Mexico. The known However, since publication of the The Devils River minnow is a small historical range of the species is based proposed rule, a Conservation fish, with adults reaching sizes of 25–53 on collections from the 1950’s and Agreement (Agreement) for the species millimeters (mm) (1.0–2.1 inches (in.)) 1970’s and includes the Devils River has been signed and specific milestones standard length. The fish has a wedge- from Beaver Lake downstream to near for conservation actions have been shaped caudal (near the tail) spot and its confluence with the Rio Grande; San agreed to by us, the Texas Parks and pronounced lateral stripe with double Felipe Creek from the springs in the Wildlife Department (TPWD), and the dashes extending through the eye to the headwaters to springs in Del Rio; City of Del Rio. We determine that the snout but not reaching the lower lip. Sycamore Creek; Las Moras Creek near VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56597 Brackettville; Rio San Carlos, Mexico; that sustains spring flows within the conservation actions as described in the and the Rio Salado Drainage, Mexico range of the Devils River minnow is the Strategy and the effects of that (Brown 1955; Hubbs and Brown 1956; Edwards-Trinity (Plateau) Aquifer. This implementation on removing threats to Robinson 1959; Harrell 1978; Smith and major aquifer produces the largest the species when making the final Miller 1986; Garrett et al., 1992). number of springs in Texas (Brune listing determination for the Devils Despite numerous collection efforts, the 1975). The contributing and recharge River minnow. Following is a species has never been reported from area for springs on the Devils River and discussion of the conservation actions the mainstem Rio Grande, the Rio San Felipe Creek is suspected to include and implementation that have occurred Conchos drainage, or tributary streams a large area as far north as Sheffield in to date. other than those listed above. The range Pecos County and Eldorado in The ten conservation actions that are of the species prior to 1951 is unknown. Schleicher County, although the included in the Strategy and their A comprehensive assessment of the subsurface hydrogeomorphology implementation status are: distribution of Devils River minnow in (underground water characteristics) of (1) Determine the current status of the Texas was described by Garrett et al. the region is not well-defined (Brune Devils River minnow and monitor (1992). This study documented the 1981). The flow from springs fluctuates changes. This action was initiated in presence of the species in 1989 at two considerably, depending on the amount November 1997, (prior to signing the sites on the Devils River (Baker’s of rainfall, recharge, and water in Agreement) with sampling in the Crossing and Dolan Springs), two sites storage in the aquifer. Conservation of mainstem Devils River and San Felipe on San Felipe Creek, and one site on the quality and quantity of this Creek in Del Rio and continued with Sycamore Creek. None were collected in groundwater supply is essential for the collections from Philips Creek and samples from Las Moras Creek. continued existence of the Devils River Dolan Creek in May, 1998. Garrett et al. (1992) found that Devils minnow. (2) Maintain genetically River minnow was very rare throughout Areas where the Devils River minnow representative, captive populations of its range in 1989 compared to past occurs are mostly in private ownership. Devils River minnow at two fish collections. At 24 sampling locations Exceptions include the Devils River hatchery facilities for reintroduction, within the historical range, a total of State Natural Area located north of and as insurance against extinction. only 7 individuals were collected from Dolan Falls and managed by the TPWD This action has been initiated by the 5 sites. In addition to declines in the (Baxter 1993), and land adjoining TPWD by holding a small number of Devils River minnow populations, portions of San Felipe Creek owned by individuals of Devils River minnow at a Garrett et al. (1992) also observed a the City of Del Rio (population of about hatchery since November 1997. Those general shift in community structure 38,000). One important private holding individuals produced an unassisted toward fishes that tend to occupy quiet is the Dolan Falls Preserve, in the reproductive effort in March 1999, in an water or pool habitat, conditions that middle portion of the Devils River, artificial stream, indicating that captive are often limited in flowing spring runs. owned by The Nature Conservancy propagation is likely readily The authors hypothesized that this shift (Baxter 1993). Primary land uses within accomplished. We agreed to assist in was the result of reduced stream flows the watersheds supporting Devils River this action by providing an additional from drought, exacerbated by human minnow are cattle, sheep, and goat location to develop captive propagation modification of stream habitats, ranching. Generally, these areas are very techniques for the species. We have especially in Sycamore and Las Moras remote with little human development secured funding for our San Marcos creeks. beyond that necessary to support National Fish Hatchery and Technology The most recent information from ranching operations. Center to initiate this action in the very collections in 1997 and 1998 confirm The Devils River minnow is currently near future. the existence of Devils River minnow in listed as a threatened species by the (3) Reintroduce Devils River only three locations in Texas—two sites State of Texas, the Texas Organization minnows, reared in captive populations, in small streams tributary to the Devils for Endangered Species (Hubbs et al. in order to reestablish populations in River (Phillips Creek and Dolan Creek) 1991), and the Endangered Species nature. This action has not yet been and one site in San Felipe Creek in Del Committee of the American Fisheries implemented and depends on a number Rio. Society (Williams et al. 1989). The of other actions being completed before We are unaware of any published Devils River minnow is listed as an reintroductions can be initiated. information on the status of the Devils endangered species in Mexico (NOM– (4) Continue and enhance protection River minnow in Mexico. A review of ECOL–059). of the San Felipe Creek watershed. This museum records indicates that the The Agreement for Devils River action by the City of Del Rio to protect species may now occur in only one minnow was signed by the Service, the San Felipe Creek has not yet been locality in Mexico. Populations there TPWD (in cooperation with local implemented. The City has committed appear to be very depressed (S. landowners), and the City of Del Rio on to a concept of conservation of the Contreras-Balderas, University of Nuevo September 2, 1998, to expedite natural environment in any future Leon, in litt. 1997) and face significant conservation measures needed to ensure development plans within the riparian threats from industrial and agricultural the continued existence of the species. zone of the creek (Beth Eby, City development (Contreras and Lozano Preliminary drafts of the Agreement Manager, City of Del Rio, in litt. 1997). 1994). were made available to local This action will be an ongoing effort by The region of Texas where the Devils landowners for comment and a draft the City for protection of this population River minnow occurs is semi-arid, version was also distributed at a public of Devils River minnow. receiving an average of about 46 hearing on the proposal to list the (5) Provide technical assistance to centimeters (cm) (18 in.) of rainfall species. The Agreement includes a landowners on riparian protection and annually. Spring-fed streams of west Conservation Strategy (Strategy) to management. Not yet initiated. Texas flow southerly through rocky, describe the specific procedures (6) Review live bait harvest and limestone soils and shrubby vegetation required for conservation of the Devils selling practices in the Devils River area characteristic of the more arid western River minnow. We carefully considered to develop methods and take reaches of the Hill Country. The aquifer the implementation to date of the appropriate actions (for example, VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56598 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations regulation, education) to prevent the springs. In addition, implementation of We included the Devils River minnow further establishment of exotic aquatic conservation measures in San Felipe as a category 2 candidate species in species within the historical range of Creek in Del Rio (such as a finalized notices of review published December Devils River minnow. Not yet initiated. policy by the City of Del Rio for 30, 1982 (47 FR 38454), September 18, (7) Document the abundance and preservation of the San Felipe Creek 1985 (50 FR 37958), and January 6, 1989 ranges of exotic fish in the Devils River, watershed, development of a San Felipe (54 FR 554). Category 2 taxa were those and San Felipe, Las Moras, and Creek floodplain restoration plan, that we believed may be eligible for Sycamore creeks. Not yet initiated. completion of a water conservation threatened or endangered status, but for (8) Obtain and analyze changes in plan, and completion of a management which the available biological flow data for the Devils River, and San plan for the golf course) will be information in our possession was Felipe, Las Moras, and Sycamore creeks. completed to reduce threats to the insufficient to support listing the Not yet initiated. species there. species. However, new information (9) With progeny of the captive (6) Improve the status of the Devils obtained in 1989 (and later published as population, use a simulated River minnow in the Devils River. This Garrett et al. 1992) provided a basis for environment to determine ecological will be accomplished by establishing including the Devils River minnow as a and life history requirements of the additional locations of Devils River category 1 candidate in notices of Devils River minnow. The TPWD has minnow, with population sizes at least review published November 21, 1991 initiated this action through the equal to historical levels (such as (56 FR 58804), and November 15, 1994 purchase and construction of the similar to those found by H.L. Harrell in (59 FR 58982). Category 1 taxa were facilities necessary to do experiments on the 1970’s). This will include further those for which we had substantial the ecology of the species. Preliminary threat assessment and addressing biological information on hand to experiments have been initiated. potential limiting factors in this system, support proposing to list the species as (10) Determine predator/prey particularly the effects of smallmouth threatened or endangered. interactions between smallmouth bass bass and changes in stream flows. and the Devils River minnow through As announced in a notice published We concur with many of the public field studies. This action will depend in in the February 28, 1996, Federal comments that supported this part on the completion of a current Register (61 FR 7596), the designation of cooperative approach. This listing does study by Texas A&M University and multiple categories of candidates was not preclude continuation of implementation of laboratory discontinued, and only species for cooperative efforts between parties to experiments discussed in action number which we have sufficient information to the Agreement or continuing efforts to 9, above. support listing are now recognized as In February 1999, we requested implement the Conservation Strategy. candidates. The Devils River minnow confirmation from the TPWD and the As stated in the introduction of the remained a candidate species in notices City of Del Rio of their commitment to Agreement, we believe that full of review published February 28, 1996 implementation of the Agreement, and implementation of the Strategy may (61 FR 7596), and September 19, 1997 clarified some specific milestones for ultimately reduce the threats to the (62 FR 49398). accomplishing the goals of the Devils River minnow and allow a future review of the species’ status. This could On March 27, 1998, we published a Agreement. The TPWD and the City proposed rule to list the Devils River concurred in writing to implement key result in a future delisting if threats are removed and the status of the species minnow as endangered and invited components of the Agreement within public comment (63 FR 14885). On May the next 2 years. The milestones agreed significantly improves such that recovery has occurred. 14, 1998, we published a notice of to by the three parties include: public hearing on the proposal (63 FR (1) Have healthy, genetically Previous Federal Action 26764), and a public hearing was representative captive stocks of Devils On August 15, 1978, we published a subsequently held in Del Rio, Texas, on River minnow in at least two facilities. May 28, 1998. On October 13, 1998, we Each facility should maintain two proposed rule (43 FR 36117) to list the Devils River minnow as a threatened published a notice reopening the separate stocks, one from the Devils comment period on the proposed rule River and one from San Felipe Creek. species and to designate its critical habitat. On March 6, 1979, we for an additional 30 days and (2) Conduct the first annual announcing the availability of new population monitoring for the Devils published a notice (44 FR 12382) to withdraw the critical habitat portion of information and the Conservation River minnow throughout its historical Agreement (63 FR 54660). range in the U.S. the proposal to meet the new critical (3) Conduct the first annual habitat requirements set forth in the The processing of this final rule monitoring for the Devils River minnow Endangered Species Act Amendments conforms with our current listing throughout its historical range and of 1978 (Public Law 95–632, 92 Stat. priority guidance published in the potential habitats in Mexico. 3751). We reproposed the designation of Federal Register on May 8, 1998 (63 FR (4) Conduct the second annual critical habitat for the Devils River 25503). The guidance calls for giving population monitoring for the Devils minnow on May 16, 1980 (45 FR 32348). highest priority to handling emergency River minnow throughout its historical A notice of public hearing was situations (Tier 1) and second highest range in the U.S. published on July 9, 1980 (45 FR priority to resolving the listing status of (5) Improve the status of the Devils 46141), and the public hearing was held outstanding proposed listings, resolving River minnow in San Felipe Creek at on July 23, 1980, in Del Rio, Texas. The the conservation status of candidate Del Rio and restore Devils River 1978 amendments to the Act also species, processing petitions, and minnow populations in the headwater required that all proposals over two delisting or reclassifications (Tier 2). springs area. This will be indicated by years old be withdrawn. We withdrew The guidance assigns the lowest priority maintaining stable population sizes of the listing and critical habitat proposals (Tier 3) to processing proposed or final Devils River minnow at Del Rio and on September 30, 1980 (45 FR 64853), designations of critical habitat. restoring population sizes at least equal because the 2-year time limit on the Processing of this final rule is a Tier 2 to those historically in the headwater proposed listing had expired. action. VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56599 Summary of Comments and Conservation Agreement. The comments Agreement will be useful in facilitating Recommendations and our responses are as follows: and expediting the recovery of the Comment 1: There is a need for more Devils River minnow. In the March 27, 1998, proposed rule information on the Devils River minnow Comment 3: Some commenters (63 FR 14885), the May 14, 1998, public before a decision is made. The requested the listing decision be hearing notice (63 FR 26764), and the distribution and abundance of the fish delayed to allow the Conservation October 13, 1998, notice reopening the is likely larger than reported in the Agreement time to be implemented. comment period (63 FR 54660), we proposal, both in the U.S. and Mexico. Service Response: We are required by requested all interested parties to Service Response: We agree that more section 4 of the Act to publish a final submit factual reports or information can be learned about the Devils River decision within one year of a proposed that might contribute to the minnow and its conservation with rule. We took into account those actions development of a final rule. The original additional research. The Conservation of the Conservation Agreement that public comment period extended 120 Agreement has additional research and have been implemented to date and the days from the date of the proposal and monitoring as key components for benefits expected from actions that will closed on July 27, 1998. The comment benefitting the species (see the be implemented in the near future. We period was reopened for an additional ‘‘Background’’ section of this final rule). determined that, within the statutory 30 days on October 13, 1998, and closed However, we must base the listing time frames mandated by the Act, listing on November 12, 1998. The second decision on the best information the Devils River minnow as threatened comment period was reopened to accept available at this time. With the current at this time is the best course of action. comments on the proposal after the data, we conclude that the fish has Comment 4: Several commenters original comment period closed. declined over a significant portion of its stated a strong desire to not incur Updated information on the distribution range. Therefore, based on the best additional Federal regulations over land and abundance of the species was available information, threatened status and water use that would limit private provided by the TPWD (G. Graham, for the Devils River minnow is property rights. TPWD, in litt. 1998). In addition, a warranted. Service Response: We do not foresee Conservation Agreement for the Devils Comment 2: Numerous commenters substantial impacts on private property River minnow among us, the TPWD, requested that we accept the rights through the Devils River minnow. and the City of Del Rio was signed on Conservation Agreement among the Fish In the ‘‘Available Conservation September 2, 1998. and Wildlife Service, TPWD, and the Measures’’ section of this final rule, we We contacted numerous Federal and City of Del Rio in lieu of listing the have outlined some private activities State agencies, county and municipal minnow. Many believed this is a better that likely will and likely will not result governments, scientific organizations, approach to management of the Devils in take of the species under the and private individuals to request River minnow. prohibitions of section 9 of the Act. We comments on the proposal. Newspaper Service Response: We agree that are interested in working with notices inviting public comment and cooperative, voluntary efforts to landowners to develop cooperative announcing the public hearing were conserve this species that remove or solutions to species conservation that published between May 3 and May 12, reduce threats that preclude the need to avoid or minimize the need for list would be preferable to Federal 1998, in the Sanderson Times, Del Rio regulatory burdens on landowners. listing. However, full implementation of News Herald, Odessa American, San Comment 5: Local and state the conservation strategy activities that Angelo Standard Times, Midland governmental agencies could manage the agreement calls for has not occurred. Reporter-Telegram, Devils River News, the Devils River minnow better than the We signed the Conservation Agreement and the Ozona Stockman. Federal government. so that conservation efforts could be Service Response: Listing the species The public hearing was held in Del quickly put in place to reduce the risks by the Federal government does not Rio on May 28, 1998. About 50 people to the species’ survival. We have preclude State and local management of attended, and 18 made oral statements. considered the extent to which the the species. On the contrary, we We also received 13 written comments conservation actions outlined in the encourage State and local involvement from the public and agency officials Conservation Agreement have been in recovery of endangered species. We during both comment periods. Four of implemented and are likely to reduce believe that local actions are crucial to the oral comments at the public hearing threats to the species, particularly in the long-term conservation of this species. were the same or similar to written near-term, in making this listing We believe a cooperative approach by comments submitted by the same determination. We strongly support the all parties will provide an even greater parties. One person submitted two efforts of State and local agencies taking benefit to the species, and we offer any comment letters. Therefore, comments active roles in the conservation of the support where possible and needed. were received from 26 separate Devils River minnow, and we believe Comment 6: No significant commenters on the proposal. the Agreement and actions outlined in groundwater pumping has occurred in The following summary addresses the it have the potential to benefit the the watershed since the 1960’s. written and oral comments received. species. The actions already Service Response: We took this These comments comprise a range of accomplished in the Conservation comment into consideration in this final issues regarding the proposal. Because Agreement, as well as the agreed-upon rule (see discussion in the ‘‘Summary of multiple respondents offered similar schedule for implementing the Factors Affecting the Species’’ section) comments in some cases, those remaining actions, were considered in and have modified the discussion of this comments were combined. Of those the decision to list as threatened. We topic. Because of the lack of information commenters stating a position, 11 believe that the conservation agreement on groundwater withdrawals, we do not clearly indicated opposition to the is an important conservation tool. Even have substantial information showing listing and another 8 implied that they though full implementation has not the level of pumping in and around the were opposed. Seven commenters did occurred and we determined that threats Devils River watershed. This prevents not clearly state a position. Ten to the species still exist such that listing any correlation of streamflow with commenters expressed support for the is still warranted, the Conservation groundwater withdrawals. However, VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56600 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations sources such as Dietz (1955) and Brune Comment 9: One commenter stated factors we are required to consider (See (1981) claim that groundwater that there have never been any Devils the ‘‘Summary of Factors Affecting the withdrawals have affected stream flows. River minnows collected from Beaver Species’’ section below) when deciding We believe there is a potential that Lake or anywhere upstream of Pecan if a species is threatened or endangered. groundwater pumping could adversely Springs. However, when planning recovery, we affect habitat of the Devils River Service Response: In September 1973, do not expect to restore populations of minnow. and March 1974, H. Harrell collected Devils River minnow to historical Comment 7: There have not been any Devils River minnow in Beaver Lake. locations because some habitat changes changes in stream flows in the Devils Voucher specimens are deposited in the are not reversible. We do believe the River, and no data exist that suggest Strecker Museum, Baylor University. Devils River minnow can be protected otherwise. In addition, there has never The 1973 sample contains 14 specimens from extinction through conservation of been permanent stream flow in the and the 1974 sample contains 13 the remaining ecosystems upon which reach from Beaver Lake to Pecan specimens of Devils River minnow. the species depends. The past habitat Springs. Comment 10: The actual abundance of destruction only serves to heighten the Service Response: The information Devils River minnow is higher than need for protection and enhancement of used in evaluating historical stream reported in the proposed rule. The suitable habitats remaining for the flow on the Devils River is from gage recent collections of Devils River Devils River minnow. records collected by the International minnow from Phillips Creek and Dolan Comment 13: The Natural Resources Boundary and Water Commission at the Creek show they are plentiful. Conservation Service (NRCS) requested Service Response: The new gage near Del Rio (1900–1957), the gage we remove their agency from the list of information on the presence of the at Pafford Crossing (1960–1997), and the Federal agencies that may have actions Devils River minnow in Phillips and gage near Juno (1925–1973). We did not that require consultation under section Dolan creeks is included in this final locate any specific studies or analysis of 7 of the Act. The NRCS indicated that rule. The number of fish in Phillips hydrology on the Devils River. none of their programs adversely Creek taken in May 1998, indicated a We reevaluated all existing and new affected the minnow, but served to good population at this site at the time benefit the minnow by improving information concerning the presence of the collections were made. The permanent flow between Pecan Springs habitat. collections at Dolan Creek are important Service Response: We support the and Beaver Lake on the Devils River. because the only other collection of the NRCS in assisting landowners with The ‘‘Summary of Factors Affecting the species from this site was one specimen ranching practices that may benefit Species’’ section of this rule reflects the in 1989 (Garrett et al. 1992). The two Devils River minnow habitat. However, available information. One task locations in the Devils River drainage we left the NRCS as a potential agency included in the Conservation Agreement are less than 20 river-km (13 river-mi) for consultations because the Act is an analysis of the hydrology of the apart and are not sufficient to alleviate mandates that any Federal action that Devils River and other streams the concern for the status of the species may affect a listed species, even if that supporting Devils River minnow to in the Devils River or other portions of effect is beneficial, requires consultation determine if stream flows have declined its range. The most recent information with us under section 7 of the Act. We over time. can only confirm three locations of the included language in this final rule (see Comment 8: No changes in grazing species throughout its historical range Available Conservation Measures, practices have occurred in recent times. in the U.S. (these two in the Devils below) to explain the requirements of Instead, the land is actually in better River and one at Del Rio in San Felipe Federal agencies under section 7(a)(1) of condition today than in previous times Creek). Although population numbers the Act. and the only changes have been an are important, the determination to list Comment 14: The proposed rule does increase in the amount of cedar and a species is based on the five factors not indicate the Devils River minnow is mesquite. outlined in section 4 of the Act and bred or hunted for commercial Service Response: We took this summarized in this final rule under the purposes, or that it moves in interstate comment into consideration in this final ‘‘Summary of Factors Affecting the commerce. Therefore, the Service lacks rule (see discussion in the ‘‘Summary of Species’’ section. authority under the Act pursuant to the Factors Affecting the Species’’ section) Comment 11: Devils River minnows Commerce Clause of Article 1, section 8 and have modified the discussion of this are rare in the Devils River because of of the United States Constitution to topic. The proposed rule did not state the introduction of smallmouth bass by regulate the Devils River minnow. that land use practices, such as grazing, TPWD. Service Response: A recent decision were known to be a major threat to the Service Response: We agree that in the United States Court of Appeals Devils River minnow. Instead we cited predation by smallmouth bass could be for the District of Columbia Circuit Brune’s (1981) statement that some land a significant factor in the decline of (National Association of Homebuilders use practices, such as overgrazing, that Devils River minnow in the Devils v. Babbitt, 130 F. 3d 1041, D.C. Cir. result in the loss of native rangeland River. Identification of the significance 1997) makes it clear in its application of grasses on the watershed, could lead to of this threat is one of the actions the test used in the United States increased runoff and decreased included in the Conservation Agreement Supreme Court case, United States v. groundwater recharge. (Conservation Action #8). Lopez, 514 U.S. 549 (1995), that We do not have specific evidence that Comment 12: It is illogical to expect regulation of species limited to one land use practices are a significant the Devils River minnow population in State under the Act is within Congress’ reason for the current decline in the the Devils River to be reestablished to commerce clause power. On June 22, species’ distribution and abundance. 1950-levels under today’s vastly 1998, the Supreme Court declined to However, Brune (1981) stated that if changed circumstances, such as accept an appeal of this case (118 S. Ct. upland areas are poorly managed, one Amistad Dam. 2340 1998). Therefore, our application long-term effect is an increased rate of Service Response: Destruction of the of the Act to Devils River minnow, a rainfall runoff and decreased rates of species’ habitat, such as what resulted fish endemic to only two counties in the recharge to the groundwater. from Amistad Dam, is one of the five State of Texas, is constitutional. We VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56601 have authority under the Act to list the Devils River minnow was clearly run habitat that remained. Amistad Devils River minnow as threatened and supported by the scientific literature, Reservoir, however, inundated these direct its conservation and eventual emphasizing that the factors cited in the springs, eliminating the natural recovery. proposal were real threats to the environment and suitable habitat for In addition to the reasons supporting continued existence of the species. One native fish. Also, the construction of the the constitutionality of the Act itself reviewer pointed out the lack of dam created a physical barrier to fish that were discussed in National intensive surveys to determine the exact movement that permanently separated Association of Homebuilders v. Babbitt, status of the species as a weakness in the Devils River population of the the past, current, and potentially future the available information. However, we species from others, such as the use of Devils River minnow habitat for believe that sufficient surveys have been population in San Felipe Creek. agriculture and livestock production, conducted to demonstrate a significant Habitat for the species may be affected residential development and roads and range reduction for the Devils River by inconsistent spring flows in the highways are activities that affect minnow. upstream portion of the Devils River, interstate commerce. The specimens of especially between Pecan Springs and this species in museums around the Summary of Factors Affecting the Species Beaver Lake (about 26 km, 16 mi). The country directly traveled via the only discharge records in this portion of channels of interstate commerce, as well After a thorough review and the river are from a gage near Juno, as the scientists and others who have consideration of all information located downstream of Pecan Springs traveled interstate to study or observe available, we determine that the Devils (International Boundary and Water the species. Finally, international River minnow should be classified as a Commission, unpublished data, in litt., commerce between the U.S. and threatened species. Procedures found at 1997) that was discontinued in 1973 Mexico, where the species also occurs, section 4(a)(1) of the Act (16 U.S.C. 1531 and has no records from 1949 to 1963. may impact Devils River minnow et seq.) and regulations implementing The available data from this gage show habitat and is also under the authority the listing provisions of the Act (50 CFR an average base flow (based on the of Federal regulation. part 424) were followed. A species may monthly median discharge) in the range Comment 15: The Service is be determined to be an endangered or of about 1,982 to 2,832 liters per second intentionally making untrue, threatened species due to one or more (lps) (70 to 100 cubic feet per second nonscientific statements to serve a of the five factors described in section (cfs)) from 1925 to 1949 and a range of political agenda to list the Devils River 4(a)(1). These factors and their about 991 to 1982 lps (35 to 70 cfs) from minnow. application to the Devils River minnow 1963 to 1973. Service Response: In both the (Dionda diaboli) are as follows: proposed rule and this final rule we We based our assessment of the conducted an objective evaluation of the A. The Present or Threatened uppermost portion of the river on scientific evidence available to reach a Destruction, Modification, or published observational data. One of the decision on whether the Devils River Curtailment of its Habitat or Range earliest descriptions of the Devils River is from Taylor (1904) who stated the minnow warrants listing under the Act. Devils River Where additional information was river ‘‘rises’’ at Pecan Springs. It is submitted to us, we have considered The Devils River is the largest unclear from this account whether there that new information as well. The segment of the historical documented was any flow upstream of this spring information upon which this decision is range of the Devils River minnow. The system. However, Brune (1975 and based has been peer reviewed by Devils River from Beaver Lake to its 1981) clearly states that the river once independent experts outside the confluence with the Rio Grande is about flowed from Beaver Lake, as did other Service, as required by our 1994 Peer 127 river-km (79 river-mi) long. At least springs downstream from Beaver Lake Review Policy (see discussion below). one-quarter of the total length of the such as Juno, Headwater, Stein, and San Devils River, from Big Satan Canyon to Pedro springs, but has dried in recent Peer Review the Rio Grande, has been permanently times. Brune (1975 and 1981) supports Service policy (59 FR 34270; July 1, lost as potential habitat due to this by—(1) referencing an observation 1994) requires that we solicit review of inundation behind Amistad Dam. from 1916 that described the Beaver listing actions from a minimum of three One of the most significant losses of Lake area as a beautiful stream; (2) independent experts. We sent copies of Devils River minnow habitat occurred providing flow data from Beaver Lake in the proposed rule, supporting primary in the lower portion of the Devils River 1925 at 45 lps (1.59 cfs) and in 1939 at literature, and other information to five with the impoundment of Amistad 0.38 lps (0.01 cfs); and, (3) recording no independent specialists who have Reservoir in 1968. The river surface flow from these springs in 1971 extensive knowledge in the biology and downstream of Big Satan Canyon is and 1976. ecology of Devils River minnow or other often inundated by Amistad Reservoir Harrell (1978) collected Devils River native fishes. Four of these specialists and the river can be affected farther minnow from the Beaver Lake area in are currently employed at universities upstream when the reservoir level is 1973 and 1974 (specimens in Strecker conducting research on fishes and one high. Backwaters from Amistad Dam Museum, Baylor University). This reviewer is a retired fishery biologist have inundated the natural stream indicates that there was sufficient from a state agency, currently serving as habitats, transforming the area from a surface flow in the area during those Executive Secretary of a scientific river to a lake environment. The area is years to support populations of the fish. society specializing in native fishes of no longer suitable for most native fishes, However, Harrell (1978) states that the southwestern U.S. Four peer including Devils River minnow. during the study period in 1974–75, reviewers responded to our request. Before construction of Amistad Dam, Pecan Springs was the uppermost All four reviewers indicated the two smaller dams (Devils Lake and Wall flowing surface water connected to the proposal was consistent with the Lake) were built in about the 1920’s in river. Harrell (1978) further states that information available in the scientific the lower portion of the stream. the upper portion of the Devils River literature. Three of the reviewers However, Devils River minnows were (Beaver Lake to Baker’s Crossing) has indicated that the proposal to list the collected in 1953 and 1954 in the spring intermittent flow characterized by VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56602 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations numerous rapids (citing Belisle and naturally and has been referred to as one after the proposed rule from additional Josselet 1975). of the most pristine rivers in Texas. surveys in 1998 found populations of The available information indicates Because of groundwater reservoirs that Devils River minnow in Phillips Creek that the flow of the Devils River support the remaining spring systems, and Dolan Creek (Gary Graham, TPWD, upstream of Pecan Springs is the river maintains a substantial in litt. 1998). Phillips Creek is a very intermittent and is connected to perennial flow in the range of 200 to 400 small intermittent tributary to the Devils downstream surface flows only during cfs at the inflow to Amistad Reservoir River that enters from the east, south of wetter climatic conditions. The Devils (unpublished data, International Baker’s Crossing. No previous River minnow has been documented in Boundary and Water Commission, in collections are recorded from Phillips these areas in the past and, therefore, litt. 1997). Creek. Sampling in May 1998, resulted this reach is considered potential When spring flows become seasonally in the collection of about 142 habitat for the species. This habitat is intermittent, fish populations are unable individuals, or about 10 percent of the likely also naturally intermittent and to use the stream to fulfill their life fishes collected, and was fourth most may not have been continuously history requirements. Declines in base abundant of the eleven species occupied by the fish during recent time. flow of streams also affect fish collected. Despite numerous collection Observations in 1954 and 1955 populations by reducing the total efforts in Dolan Creek, only one suggested a significant increase in available habitat and thereby individual had previously been irrigation farming from groundwater intensifying competitive and predatory collected in this tributary to the Devils wells in the area of Juno and the interactions. For Devils River minnow, River. Sampling in May 1998, resulted headwaters of the Devils River (Dietz decreased stream flows could lead to a in the collection of about 12 1955). The result reported by Dietz population decline due to exclusion individuals. (1955) was the lowering of the from preferred habitats and increased The Conservation Agreement and groundwater to a level causing the mortality from predation. subsequent commitments were designed Devils River to cease flowing for a The eighth action listed in the to monitor and improve populations of number of miles below Baker’s Crossing. Conservation Strategy of the Agreement Devils River minnow in the Devils The upper portion of the Devils River is requires the analysis of past changes in River. By September 2000, we will likely the most susceptible to declines flows throughout the range of the Devils establish more (than the two currently in groundwater levels. River minnow. These studies will known) locations of Devils River Brune (1981) states that agricultural determine the potential effects of flows minnow in the Devils River with land use practices (specifically the on habitat for Devils River minnow. population sizes at least equal to decline of grasses from livestock Using relative abundance as an historical levels (such as that found by grazing) both within and north of the indicator, the Devils River minnow has H.L. Harrell in the 1970’s). Threats will watershed of the Devils River may affect decreased in abundance in the Devils be assessed and potential limiting aquifer levels and account for a lack of River over time. The Devils River factors in this system addressed, permanent flows from the northern- minnow was the fifth most abundant particularly the effects of smallmouth most springs. Brune (1981) explains that species of 18 species collected in 1953 bass and changes in stream flows. the natural layer of organic mulch that at Baker’s Crossing (Brown 1955); the formerly functioned as a topsoil capable sixth most abundant of 23 species in the San Felipe Creek of absorbing rainfall has been lost and river in 1974 (Harrell 1978); and one of San Felipe Creek constitutes the replaced with barer soils that enhance the least abundant of 16 species in 1989 second largest segment of remaining runoff and limit recharge. (Garrett et al. 1992). Recent information habitat for Devils River minnow in Another cumulative factor may be the from Cantu and Winemiller (1997) Texas. Brune (1981) lists San Felipe expansion of Ashe juniper (Juniperus indicates that the species was still Springs (including ten separate spring ashei) and Redberry juniper (Juniperus present in the Devils River at the sources) as one of the four largest pinchotti), both commonly referred to as confluence with Dolan Falls in 1994, springs in Texas. Devils River minnow cedar. These two species have become but only in low numbers (thirteenth previously occurred in two areas on this abundant on the rangeland watersheds most abundant of 27 species). The four stream. The upper area is associated of the Devils River due to a number of collections by Cantu and Winemiller with a series of springs, Head and Lowe natural and human factors (Smiens et al. (1997) were extensive surveys over 1 springs, several miles upstream of the 1997). The overabundance of juniper year at the one site near Dolan Falls. City of Del Rio, and the lower area is has been cited as a factor that could Even with this increased effort, only 28 associated with two large springs in Del affect rangeland hydrology (Thurow and individuals of Devils River minnow, out Rio. Hester 1997). However, definitive data of 4,470 total fish, were documented. No In 1979, Devils River minnow made are not available to show that removal voucher specimens were maintained to up about 2 percent of all collections of juniper will produce increased verify these collections. (total of 3,458 fish), and was the seventh groundwater levels in Texas. Studies of The decline in abundance within the most abundant of 16 species in the juniper removal in other states have not Devils River can best be documented upper portion of San Felipe Creek. In resulted in significant yields to from collections at the site at Baker’s 1989, no Devils River minnow were groundwater or stream flows (Thurow Crossing. Over 60 individuals were collected from this site (Garrett et al. and Hester 1997). collected there in 1953, only one was 1992). No known collections have been Any decline of permanent discharge collected in 1989, and none were made in this area since 1989. This area from springs is a significant threat to collected in 1997. of San Felipe Creek (upstream of Del Devils River minnow in the Devils No Devils River minnow were Rio) is privately owned and no River. This threat can be the result of collected in November 1997, by the information is available to discern why drought and/or human activities that TPWD from several locations on the the populations of Devils River minnow withdraw groundwater or significantly Devils River from Pecan Springs in this area have significantly declined. reduce recharge. The downstream downstream to Finegan Springs, just Garrett et al. (1992) stated that reduced portion of the Devils River below above Dolan Falls (Gary Garrett, TPWD, flow from these springs may have Baker’s Crossing continues to flow in litt. 1997). New information received contributed to the reduction in VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56603 abundance of Devils River minnow. Any Water quality and contamination are creek. In addition, the City has agreed further declines in spring flows due to inherent threats to the population in to consider the needs of the Devils River increased withdrawals could negatively San Felipe Creek because of the urban minnow and its habitat in the affect the Devils River minnow setting. Recent studies by the Texas reconstruction of those portions of the population in this location. Natural Resource Conservation creek that were damaged in the August At San Felipe Springs in the City of Commission (TNRCC; 1994) found 1998 flooding. These actions together Del Rio the fish was very rare (less than elevated levels of nitrates, phosphates will provide an opportunity to protect 1 percent of 1,651 fish collected, and the and orthophosphate in San Felipe the existing populations and expand the tenth most abundant of 12 species Creek, indicating potential water quality available habitat for Devils River collected) in 1989 (Garrett et al. 1992). problems. Land uses in the immediate minnow in San Felipe Creek. Data from 1997 suggest that the Devils area of the springs, such as runoff from Sycamore Creek River minnow is common in the San the municipal golf course, may be Felipe Springs and the urban section of contributing to these conditions. Other Sycamore Creek constitutes a the creek (about 50 individuals were threats from catastrophic events such as relatively small portion of the range of collected for captive study) (Gary contaminant spills could adversely the species. There is only one published Garrett, TPWD, in litt. 1997). affect the species. account of Devils River minnow in this The San Felipe Springs are located The stream channel of San Felipe stream from one site, at the State within the City of Del Rio and may be Creek in Del Rio has been modified to Highway 277 crossing near the Rio threatened with future habitat changes a limited extent for bank stabilization Grande River (Garrett et al. 1992). from continued urban development. and public access. In some areas these Harrell (1980) references the species’ Brune (1981) shows data supporting that actions may have limited the available occurrence there from an unpublished the springs have increased their flow habitat for Devils River minnow. collection in the early 1970’s (H. since the filling of Amistad Reservoir. Based on the current abundance of the Harrell, pers. comm. 1997). Garrett et al. The Reservoir is thought to increase Devils River minnow in San Felipe (1992) found only one individual of flows from San Felipe Springs because Creek, it appears that existing practices Devils River minnow at this location. the pool elevation of the reservoir is that could impact the aquatic habitat are Sycamore Creek is an ungaged stream, often higher than that of the spring not yet serious enough to significantly and there is little information available outlet. This situation places hydrostatic reduce the local population. Aquatic on habitat conditions. However, the pressure on San Felipe Springs through habitat conservation measures (such as Devils River minnow in this stream is inundated spring openings within the water use conservation and water evidently very rare and faces increased reservoir (Brune 1981). According to quality protection) in this section of San risk of extirpation because of the Brune (1981), before the reservoir filled, Felipe Creek could help ensure survival apparent small population size. Devils the springs flowed about 2000 lps (about of the species there. River minnow in Sycamore Creek likely 70 cfs). Since the reservoir filled, flows In August 1998, San Felipe Creek face potential threats from drought and at the springs have averaged 135 to 150 experienced a very large flood, with habitat modification (Garrett et al., cfs (unpublished data from International flows estimated at over 100,000 cfs. This 1992). The Conservation Agreement is Boundary and Water Commission, in was the largest estimated peak flow on intended to restore Devils River minnow litt. 1997). Both of these flow averages record (previous high was about 69,500 to Sycamore Creek and/or Las Moras are after withdrawals of water by the cfs). Although the Devils River minnow Creek by September 2000. This effort City of Del Rio for municipal use. is adapted to withstand floods (Harrell will necessitate further assessment of The City of Del Rio draws water 1978), the effects of this event are limiting factors, threat abatement, and directly from San Felipe Springs, which unknown as no collections have been landowner cooperation. are the sole source of the City’s made since the flood. municipal water supply as well as for As part of the Conservation Las Moras Creek Laughlin Air Force Base. During 1995 Agreement, by September 2000, we Las Moras Creek represents the and 1996 the average water use by the agreed to improve the status of the eastern extent of the range of the City varied seasonally from about 8 to Devils River minnow in San Felipe species. Although the populations there 19 million gallons per day (about 12 to Creek by maintaining stable populations may have been restricted to the spring 29 cfs). The expected population growth at Del Rio and restoring Devils River area in Brackettville, the number of fish of Del Rio is projected to be low, 0.5 to minnow in the headwater springs area in historical collections was relatively 1 percent annually (B. Eby, City of Del at levels at least equal to historical large (54 individuals were collected in Rio, pers. comm., 1997). The City is population sizes. In addition, a finalized 1953) (Hubbs and Brown 1956). The currently planning to upgrade their policy by the City of Del Rio for natural spring system in Brackettville water treatment facility and provide a preservation of the San Felipe Creek that supports Las Moras Creek is the maximum of 20 million gallons per day watershed, development of a San Felipe location of the earliest collection of (about 31 cfs) for municipal use (U.S. Creek floodplain restoration plan (as Devils River minnow. The species has Environmental Protection Agency, response to the flood of August 1998), not been collected from these springs Finding of No Significant Impact, in litt. completion of a water conservation since the 1950’s and is believed to be 1998; O.J. Valdez, Malcom Pirnie, Inc., plan, and completion of a management extirpated from that stream, based on pers. comm., 1999). This new treatment plan for the golf course will reduce several sampling efforts in the late plant and associated facilities will threats to the species. 1970’s and 1980’s (Smith and Miller provide some water conservation Other actions that may aid in 1986; Hubbs et al. 1991; Garrett et al. because the existing system of water conserving the Devils River minnow 1992). distribution and storage leaks include reducing per capita water Habitat for the Devils River minnow significantly. With additional water consumption, seeking alternative was lost when the spring was altered by conservation measures in place to sources of water, preserving water damming the outflow and removing reduce per capita water use, the City quality, educating the public on the streambank vegetation to create a could decrease its water consumption importance of the creek, and limiting recreational swimming pool. Garrett et from San Felipe Creek in the future. population density adjacent to the al. (1992) reported that the creek VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56604 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations smelled of chlorine, indicating that the and surface water withdrawals, as well concern is the threat of predation by swimming pool may be maintained with as air and water pollution. Watersheds smallmouth bass, a game fish chlorination (a toxin to fish). Garrett et in northern Mexico have been heavily introduced to Amistad Reservoir in al. (1992) also indicate that spring flow impacted by land uses and industrial about 1975. The smallmouth bass is has been drastically reduced by drought development (S. Contreras-Balderas, native to eastern North America but has and diversion of water for human University of Nuevo Leon, in litt. 1997). been widely introduced as a sport fish consumption. The springs apparently The Rio Sabinas, in particular, has been to reservoirs and streams outside its ceased flowing in the 1960’s and again noted for decreasing flows; and spring natural range. It is believed smallmouth in the 1980’s (Garrett et al. 1992). This systems within Coahuila have been bass gained access to the upper portions combination of habitat loss and extensively exploited (Contreras and of the Devils River (upstream of Dolan alteration and the resulting water Lozano 1994). Contreras-Balderas (1987) Falls) in the early to mid-1980’s (Gary quality problems appears to be the most considered the Devils River minnow in Garrett, TPWD, pers. comm. 1997). This likely cause for the apparent extirpation danger of extinction, and the species is species is now the dominant predator in of the species from Las Moras Creek. currently listed by the Mexican the fish community of the Devils River. The Conservation Agreement is government as endangered. The TPWD is currently managing the intended to restore Devils River minnow Devils River as a trophy smallmouth Range-Wide to Las Moras Creek and/or Sycamore bass fishery with size and catch limits. Creek by September 2000. This effort Habitat loss and modification The Devils River minnow evolved in will necessitate further assessment of throughout a significant portion of the the presence of native fishes that limiting factors, threat abatement, and range of the Devils River minnow has consume other fishes, such as channel landowner cooperation. resulted in both the fragmentation and catfish (Ictalurus punctatus) and contraction of the range of the species. largemouth bass (Micropterus Mexico The previous occurrences of known salmoides). The Devils River minnow The only known historical locations localities of Devils River minnow in has adapted to persist with these of the Devils River minnow in Mexico Texas can be grouped into nine species. However, smallmouth bass are are in the Rio San Carlos and three geographic areas, primarily associated not native, are aggressive predators, and upper streams of the Rio Salado with spring systems—five areas in the are known to impact other native fish drainage. The Rio San Carlos is a small Devils River (lower Devils River, Dolan communities (Taylor et al. 1984, Moyle tributary of the Rio Grande located 27 Falls, Baker’s Crossing, Pecan Springs, 1994). The Devils River minnow is km (17 mi) south of Ciudad Acuna. Juno to Beaver Lake); two areas in San within the size class of small fishes that Only a few individuals have been Felipe Creek (headwater springs and Del are susceptible to predation by collected from this location, once in Rio); one area in Sycamore Creek; and smallmouth bass. The scarcity of Devils 1968 (University of Michigan Museum one area in Las Moras Creek. River minnow in the Devils River specimens, unpublished data, 1997) and Of these nine areas, the best available (where smallmouth bass are prominent) again in 1974. The species has not been information confirms the existence of and the abundance of Devils River collected from this site since 1974 and Devils River minnow in only Phillips minnow in San Felipe Creek (where its status there is unknown (S. Creek downstream from Baker’s smallmouth bass are not known to Contreras-Balderas, University of Nuevo Crossing, Dolan Creek (about 20 km occur) provides circumstantial evidence Leon, in litt. 1997). away from Phillips Creek), and San of the likely impacts of this introduced The population of Devils River Felipe Creek in Del Rio. The known predator. In addition, the small creeks minnow in the Rio Salado drainage of existence of only three localities, with where the Devils River minnow were northern Mexico represents a critical one in an urban setting, makes the status recently found (Phillips and Dolan portion of the southern-most extent of of the species in the U.S. tenuous. creeks) are also not known to contain the range. The Rio Salado is a tributary However, actions in the Conservation smallmouth bass. The establishment of of the Rio Grande and is geographically Agreement implemented to date, plus smallmouth bass in San Felipe, Phillips, distinct from the tributaries where the future actions to be implemented or Dolan creeks is another potential fish occurs in Texas. Collections of the according to an agreed-upon schedule, threat to Devils River minnow in those species are limited to the Rio Sabinas, leads us to determine that threatened locations. Rio San Juan, and Rio Alamo from about status is appropriate. Although detailed The tenth action in the Conservation 8 km (5 mi) northwest of Muzquiz to information is limited regarding the Strategy includes a determination of the about 12 km (7 mi) west of Nueva Rosita status of the species in Mexico, its legal interactions between smallmouth bass (S. Contreras-Balderas, University of status and degradation of aquatic and Devils River minnow. If results Nuevo Leon, in litt. 1997). Therefore, habitats indicate it is endangered with indicate that smallmouth bass are likely the known range of the species in the extinction in that country. having negative effects on Devils River Rio Salado is about 30 km (20 mi). The minnow populations, actions such as most recent collections of Devils River B. Overutilization for Commercial, localized smallmouth bass removal minnow (31 individuals) from this area Recreational, Scientific, or Educational efforts in conjunction with were in 1994 (S. Contreras-Balderas, Purposes reintroductions of Devils River minnow University of Nuevo Leon, in litt. 1997). Overutilization is not considered a will be considered. Long-term The Conservation Agreement includes significant threat to the Devils River management of smallmouth bass in the the survey of Mexican streams that minnow. However, there is a potential Devils River will be addressed through could potentially contain populations of for impacts should this species be regulations on catch and size limits to Devils River minnow by September harvested as a baitfish (either reduce abundance and modify 2000. The likely condition of aquatic commercially or non-commercially). population structures. habitats in the Rio Salado Drainage in Mexico is extremely poor. Contreras and C. Disease or Predation D. The Inadequacy of Existing Lozano (1994) report that aquatic The Devils River minnow may be Regulatory Mechanisms ecosystems in this region of Mexico face affected by the presence of introduced The Devils River minnow is listed as significant threats due to groundwater fishes within its range. Of special a threatened species by the State of VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56605 Texas. This provides some protection vulnerable to loss from random natural fishes throughout the range of the Devils from collecting, as a permit is required events, including population River minnow. to collect listed species in Texas. fluctuations (Meffe 1986). The The overall decline in abundance of However, there are no State or local Conservation Agreement is intended to Devils River minnow could be the result regulations to protect habitat for the improve population levels and of several cumulative factors. For conservation of the species. In addition, distribution of Devils River minnow example, subtle changes in stream flows no regulations exist to prevent throughout its range to reduce these could produce small shifts in habitat unintentional releases of exotic species threats. use that make the species more by the baitfish industry and anglers. The construction of Amistad Dam has vulnerable to competition and predation Limited State regulations separated the two primary populations by native predators and non-native administered by the TNRCC serve to of Devils River minnow in Texas (Devils smallmouth bass. In addition, long-term protect in-stream flows for surface water River and San Felipe Creek). This drought could have an effect on the rights and water quality for wildlife and population fragmentation could have habitat of the species, particularly when human uses. However, these regulations significant conservation implications combined with impacts of human water were not designed to conserve habitat (Gilpin 1987). Determining and use. This species has adapted to for native fishes and currently no monitoring the genetic structure of the historical natural climatic variations minimum in-stream flows are required different Devils River minnow (such as large floods and prolonged on streams where Devils River minnow populations will be needed to ensure droughts). However, in conjunction occur. the necessary genetic variation within with other threats to the species Surface water rights along the Rio and among populations is not lost (primarily existing habitat loss and Grande in Texas and its U.S. tributaries (Meffe 1986; Minckley et al. 1991). exotic predators), a drought could are administered by the State of Texas. Recent collections in 1997 from San significantly increase the threat of Groundwater withdrawals that could be Felipe Creek revealed for the first time extinction. The use of water supplies for affecting stream flows within the range the presence of armored catfish human needs (municipal or agricultural) of the Devils River minnow are (Hypostomus sp.) (Gary Garrett, TPWD, serves to worsen the effects of drought unregulated. Texas courts have held in litt. 1997). This fish is an exotic on the natural environment. that, with few exceptions, landowners species that has established a breeding We have carefully assessed the best have the right to take all the water that population in the San Antonio River, scientific and commercial information can be captured under their land (rule Texas, and was cited as potentially available regarding the past, present, of capture). Therefore, there is little competing with other Dionda species and future threats faced by this species opportunity to protect groundwater due to its food habitats (Hubbs et al. in determining to make this final rule. reserves within existing regulations. 1978). Although Dionda species are Therefore, based on this evaluation, the State Water Quality Standards, though common in spring runs in Central most appropriate action is to list the primarily concerned with protecting Texas, they are now absent from these Devils River minnow as threatened. The human health, may provide some habitats in the San Antonio River, species currently inhabits a very limited protection to the Devils River minnow implying the potential displacement by range and the best scientific information and its habitat. However, the sensitivity the armored catfish (R.J. Edwards, available indicates a significant decline of Devils River minnow to any University of Texas-Pan American, in in range and abundance of the species. contaminants or water quality changes litt. 1998). This could be a threat to Some new information was received is unknown and could require more Devils River minnow populations in since the proposal that suggested habitat stringent standards than used for human San Felipe Creek. loss in the upper reaches of the Devils health. The classification of the Devils The future release (intentional or River may be less severe than originally River and San Felipe Creek under the unintentional) of other fishes into areas thought. This is because we originally Texas Surface Water Quality Standards inhabited by Devils River minnow is characterized the habitat as historically requires maintenance of existing water another potential threat. Live bait fish a continuous flowing stream, when this quality. Sycamore and Las Moras creeks are commonly discarded into nearby upper reach may always have been are not classified under these standards. waters by anglers, resulting in intermittent; therefore, the habitat may introductions of non-native species. have never been more than marginal. In E. Other Natural or Manmade Factors This situation has occurred in many addition, the discovery of two Affecting Its Continued Existence streams in the southwestern U.S. with additional localities of Devils River Habitat loss throughout the range of considerable impacts to the native fish minnow in tributaries to the Devils the Devils River minnow has reduced community (Moyle 1994). In addition, River provided information that the number of known locations to as few exotic fishes from aquariums could be populations are extant in the Devils as three. The Devils River minnow is introduced into local waters. Currently, River drainage. New information was currently known to be common in only only a small number of introduced also provided showing the presence of two locations, Phillips Creek and San fishes occur within the range of the an additional exotic species in San Felipe Creek in Del Rio. However, Devils River minnow, but the potential Felipe Creek that presents a threat not actions identified in the Conservation for unintentional introductions is high mentioned in the proposed rule. Agreement that have been implemented because of the number of anglers on the The Conservation Agreement to date have reduced the threat of Devils River and the urban setting of involving us, the TPWD, and the City of extinction of the Devils River minnow. San Felipe Creek. Threats to the Del Rio provides commitments to work If Devils River minnow still occurs in populations of Devils River minnow toward the recovery of the species other locations (such as Sycamore from possible introduction and through implementing the 10 actions Creek, headwaters of San Felipe Creek, establishment of non-native fishes described in the Conservation Strategy and the Devils River), the number of fish include diseases, parasites, competition (see ‘‘Background’’ section of this rule). may be too small to constitute viable for food and space, predation, and In addition, we have received populations (Caughley and Gunn 1996). hybridization. The Conservation confirmation from both TPWD and the Small populations can lead to genetic Agreement has provisions for City of Del Rio of their commitment to erosion through inbreeding and are assessment and monitoring of exotic implement certain key actions of the VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56606 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Agreement within the first two years of section of this rule). The watersheds in Apart from section 7, the Act provides its signing. However, we can still only the U.S. in which the Devils River no additional protection to lands confirm three localities where the minnow occurs are almost entirely in designated as critical habitat. species remains in the U.S.; habitat loss private ownership, and no significant Designating critical habitat does not has been considerable in the Devils Federal actions affecting the species’ create a park or preserve, and does not River due to Amistad Dam and in Las habitat are likely to occur in the area. require or create a management plan for Moras Creek; and the Conservation Therefore, the designation of critical the areas where the species occurs; does Agreement has not yet been fully habitat would provide little, if any, not establish numerical population implemented. benefit to the species through section 7 goals or prescribe specific management An endangered species is defined of the Act. actions (inside or outside of critical under the Act as one that is in danger In addition, any Federal action that habitat); and does not have a direct of extinction throughout all or a would cause adverse modification of effect on areas not designated as critical significant portion of its range. A critical habitat for the Devils River habitat. A designation of critical habitat threatened species is one that is likely minnow likely would also cause that includes private lands would only to become an endangered species within jeopardy for areas where the species is affect actions where a Federal nexus the foreseeable future throughout all or known to occur. Under section 7, (such as Federal funding, authorization, a significant portion of its range. We actions funded, authorized, and carried or permit) is present and would not have carefully examined the best out by Federal agencies may not confer any substantial conservation scientific and commercial information jeopardize the continued existence of a benefit beyond that already provided available, and determine that threatened species or result in the destruction or through section 7 consultation. status is appropriate for the Devils River adverse modification of critical habitat. Because the Devils River minnow is minnow. To ‘‘jeopardize the continued existence’’ predominantly found in streams flowing of a species is defined as an action that Critical Habitat through private lands, the cooperation appreciably reduces the likelihood of its of private landowners is imperative to Critical habitat is defined in section 3 survival and recovery (50 CFR part 402). conserve the Devils River minnow. of the Act as—(i) The specific areas ‘‘Destruction or adverse modification of Designation of critical habitat on private within the geographical area occupied critical habitat’’ is defined as an lands could result in a detriment to the by a species, at the time it is listed in appreciable reduction in the value of species. The regulatory effect of critical accordance with the Act, on which are critical habitat for the survival and found those physical or biological recovery of a species. Common to both habitat designation is often features (I) essential to the conservation definitions is an appreciable detrimental misunderstood by private landowners, of the species and (II) that may require effect to both the survival and recovery particularly those whose property special management considerations or of a listed species. In biological terms boundaries are included within a protection and; (ii) specific areas and in consultation practice, the general description of critical habitat for outside the geographical area occupied jeopardy standard and the adverse a species. In the past, landowners have by a species at the time it is listed, upon modification standard are virtually mistakenly believed that critical habitat a determination that such areas are identical for areas occupied by the designation would prevent development essential for the conservation of the species. and impose restrictions on the use of species. ‘‘Conservation’’ as defined in For any listed species, an analysis to their private property. In some cases, section 3(3) of the Act means the use of determine jeopardy under section landowners have believed that critical all methods and procedures needed to 7(a)(2) would consider impacts to the habitat designation is an attempt by the bring the species to the point at which species resulting from impacts to government to confiscate their private listing under the Act is no longer habitat. Therefore, an analysis to property. This misconception was necessary. determine jeopardy would include an evident from public comments received Section 4(a)(3) of the Act and analysis closely parallel to an analysis in 1980 on the proposed designation of implementing regulations (50 CFR to determine adverse modification of critical habitat for the Devils River 424.12) require that, to the maximum critical habitat. A Federal action that minnow. Several citizens indicated they extent prudent and determinable, the would adversely modify the species’ strongly believed that by designating Secretary designate critical habitat at the habitat would also jeopardize the critical habitat, the Federal government time the species is determined to be species (and vice versa). Specifically for would have the right to trespass on endangered or threatened. Our the Devils River minnow, any private property, control private land regulations (50 CFR 424.12(a)) state that modification to suitable habitat within management actions, and even take designation of critical habitat is not the species’ range also will substantially ownership of private land for the prudent when one or both of the affect the species. Actions that may species. As a result of this following situations exist—(1) The affect the habitat of the Devils River misunderstanding, fear of critical species is threatened by taking or other minnow include, but are not limited habitat designation has sometimes human activity, and identification of to—(1) Reduction of water flows from reduced private landowner cooperation critical habitat can be expected to springs or streams, (2) Degradation of in efforts to conserve species listed in increase the degree of such threat to the water quality, (3) Alteration of shallow, Texas. For example, fear resulting from species, or (2) such designation of fast-flowing stream areas downstream talk of possible designation of critical critical habitat would not be beneficial from the outflow of springs, and (4) habitat for the golden-cheeked warbler to the species. We find that the Construction of structures that interfere (Dendroica chrysoparia) reduced private designation of critical habitat for the with instream movement of fishes. landowner cooperation in the Devils River minnow is not prudent due Given the imperiled status and narrow management of the species. In addition, to lack of benefit. range of the Devils River minnow, it is in the past landowners have specifically The section 7 prohibitions against likely that any Federal action that denied access to study sites for Devils adverse modification of critical habitat would destroy or adversely modify the River minnow (Hubbs and Garrett 1990, apply to Federal actions only (see the species’ critical habitat would also Garrett et al. 1992) due to fears of ‘‘Available Conservation Measures’’ jeopardize its continued existence. regulation. VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56607 Critical habitat designation can jeopardy analysis similar to an adverse Elimination System. Other Federal sometimes serve to highlight areas that modification analysis for critical habitat. agencies whose actions could require may be in need of special management We have already provided private consultation include the Department of considerations or protection. However, landowners and State and Federal Defense, NRCS, the Federal Highways in the case of the Devils River minnow agencies with up-to-date information on Administration, and the Department of the TPWD and local landowners are important areas for the Devils River Housing and Urban Development. already aware of the areas in need of minnow and we plan to continue to do In addition, section 7(a)(1) of the Act special management considerations or so. Finally, even if designation of requires all Federal agencies to review protection. Because this species was critical habitat for the Devils River the programs they administer and use previously proposed for listing in 1978, minnow would provide some small, these programs in furtherance of the and critical habitat proposed in 1980 incremental benefit to the species, that purposes of the Act. All Federal (due to amendements to the Act both benefit is outweighed by the possible agencies, in consultation with the proposals were withdrawn on reduction in landowner cooperation that Service, are to carry out programs for September 30, 1980 (45 FR 64853)), the would facilitate the management and the conservation of endangered species public has been aware of the recovery of this species. Based on this and threatened species listed pursuant distribution of the species and need for analysis, we conclude that designation to section 4 of the Act. conservation for over 20 years. Prior to of critical habitat for the Devils River The Act and its implementing and following publication of the 1998 minnow is not prudent. regulations set forth a series of general proposed rule to list the Devils River prohibitions and exceptions that apply Available Conservation Measures minnow (critical habitat was not to all endangered wildlife. The prudent in the 1998 proposal (63 FR Conservation measures provided to prohibitions, codified at 50 CFR 17.31, 14885)), we initiated an extensive species listed as endangered or in part, make it illegal for any person public outreach effort to inform and threatened under the Act include subject to the jurisdiction of the U.S. to educate the general public and recognition, recovery actions, take (includes harass, harm, pursue, interested parties within the range of the requirements for Federal protection, and hunt, shoot, wound, kill, trap, capture, species. We sent out press releases to prohibitions against certain practices. or collect, or to attempt any of these), local newspapers, contacted elected Recognition through listing results in import or export, ship in interstate officials, Federal, State, and county public awareness and conservation commerce in the course of commercial agencies, and interested parties, actions by Federal, State, and local activity, or sell or offer for sale in including private landowners. A public agencies, private organizations, and interstate or foreign commerce any hearing was held in 1998, with over 40 individuals. The Act provides for listed species. It also is illegal to people from the local public in possible land acquisition and possess, sell, deliver, carry, transport, or attendance. The hearing included the cooperation with the States and requires ship any such wildlife that has been sharing of information on areas that recovery actions be carried out for taken illegally. Certain exceptions apply important to the species. In addition, all listed species. to agents of the Service and State over the last two years, TPWD has Section 7(a) of the Act, as amended, conservation agencies. participated in at least three meetings requires Federal agencies to evaluate Permits may be issued to carry out with affected private landowners (more their actions with respect to any species otherwise prohibited activities than 30 individuals in attendance at that is proposed or listed as endangered involving threatened wildlife under each meeting) to inform them of the or threatened and with respect to its certain circumstances. Regulations need for conservation of the species, as critical habitat, if any is being governing permits are described in 50 part of the development of the designated. Regulations implementing CFR 17.22, 17.23, and 17.32. Such Conservation Agreement with the State these interagency cooperation permits are available for scientific and the City of Del Rio. provisions of the Act are codified at 50 purposes, for the enhancement or We have evaluated the potential CFR part 402. Section 7(a)(2) requires propagation or survival of the species, notification and education benefit Federal agencies to ensure that activities or for incidental take in connection with offered by critical habitat designation they authorize, fund, or carry out are not otherwise lawful activities. For and find that, for the Devils River likely to jeopardize the continued threatened species, there are also minnow, there would be no additional existence of such a species or to destroy permits for zoological exhibition, benefit over the outreach associated or adversely modify its critical habitat, educational purposes, or special with the proposal, current outreach for if any has been designated. If a Federal purposes consistent with the purposes this final rule and interagency action may affect a listed species or its of the Act. Information collections coordination processes currently in critical habitat, the responsible Federal associated with these permits are place. Notification and education can be agency must enter into consultation approved under the Paperwork conducted more effectively by working with the Service. Reduction Act, 44 U.S.C. 3501 et seq., directly with landowners and Although few Federal agency actions and assigned Office of Management and communities through the recovery are anticipated, examples of those that Budget clearance number 1018–0094. implementation process and, where a may require consultation as described in For additional information concerning Federal nexus exists, through section 7 the preceding paragraph include U.S. these permits and associated consultation and coordination. Critical Army Corps of Engineers review and requirements, see 50 CFR 17.32. habitat designation for the Devils River approval of activities such as the It is our policy (59 FR 34272) to minnow would provide no additional construction of roads, bridges, and identify to the maximum extent notification or education benefit. dredging projects subject to section 404 practicable at the time a species is listed In summary, we have determined that of the Clean Water Act (33 U.S.C. 1344 those activities that would or would not the designation of critical habitat for the et seq.) and section 10 of the Rivers and constitute a violation of section 9 of the Devils River minnow would not be Harbors Act of 1899 (33 U.S.C. 401 et Act. The intent of this policy is to beneficial to the species. For the Devils seq.) and U.S. Environmental Protection increase public awareness of the effect River minnow, the section 7 Agency authorization of discharges of the listing on proposed and ongoing consultation process will produce a under the National Pollutant Discharge activities within a species’ range. We VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56608 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations believe that, based on the best available into areas that provide access to the defined under the authority of the information, the following actions will aquifer and where such discharge or National Environmental Policy Act of not likely result in a violation of section dumping could affect water quality in 1969, need not be prepared in 9: spring outflows; connection with regulations adopted (1) Normal livestock grazing and other (4) Herbicide, pesticide, or fertilizer pursuant to section 4(a) of the standard ranching practices, such as application in or near the springs and/ Endangered Species Act of 1973, as improving rangeland native grass cover, or stream segments containing the amended. A notice outlining our that do not destroy or degrade Devils species; reasons for this determination was River minnow habitat; (5) Introduction of certain non-native (2) Riparian restoration activities that species (fish, plants, and other) into published in the Federal Register on improve the ecological health of native occupied habitat of the Devils River October 25, 1983 (48 CFR 49244). riparian zones along streams and minnow or areas connected to these References Cited springs, as long as construction habitats; and activities do not impair Devils River (6) Actions that may affect Devils A complete list of all references cited minnow habitat; River minnow and are authorized, herein, as well as others, is available (3) Recreational activities such as funded or carried out by a Federal upon request from the Austin Ecological swimming, canoeing, and fishing, as agency when the action is not Services Field Office (see ADDRESSES long as non-native fish or other exotic conducted in accordance with an section). organisms are not used as bait and incidental take statement issued by us Author: The primary author of this released to the stream, and the activities pursuant to section 7 of the Act. are conducted in such a way as to not In the descriptions of activities above, final rule is Nathan Allan, Fish and damage habitat or negatively affect a violation of section 9 would occur if Wildlife Service (see ADDRESSES water quality; and those activities occur to an extent that section). (4) Actions that may affect Devils would result in ‘‘take’’ of Devils River List of Subjects in 50 CFR Part 17 River minnow and are authorized, minnow. Not all of the activities funded or carried out by a Federal mentioned above will result in violation Endangered and threatened species, agency when the action is conducted in of section 9 of the Act; only those Exports, Imports, Reporting and accordance with an incidental take activities that result in ‘‘take’’ of Devils recordkeeping requirements, statement issued by us pursuant to River minnow would be considered Transportation. section 7 of the Act. violations of section 9. We recognize Activities we believe could that a wide variety of activities would Regulation Promulgation potentially harm the Devils River not harm the species, even if undertaken minnow and result in ‘‘take’’ include, in the vicinity of the species’ habitat. Accordingly, part 17, subchapter B of but are not limited to: Questions regarding whether specific chapter I, title 50 of the Code of Federal (1) Unauthorized collecting or activities would likely constitute a Regulations, is amended as set forth handling of the species; violation of section 9 should be directed below: (2) Any activities that may result in to the Field Supervisor, Austin destruction or significant alteration of Ecological Services Field Office (see PART 17Ð[AMENDED] habitat occupied by Devils River ADDRESSES section). Requests for copies minnow including, but not limited to, of the regulations regarding listed 1. The authority citation for part 17 the discharge of fill material, the wildlife and inquiries about continues to read as follows: diversion or alteration of spring and prohibitions and permits may be Authority: 16 U.S.C. 1361–1407; 16 U.S.C. stream flows or withdrawal of addressed to the U.S. Fish and Wildlife 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– groundwater to the point at which Service, Region 2, Division of 625, 100 Stat. 3500, unless otherwise noted. Devils River minnow are harmed, and Endangered Species, P.O. Box 1306, the alteration of the physical channels Albuquerque, New Mexico 87103–1306 2. Amend section 17.11(h) by adding within the spring runs and stream (telephone 505–248–6920; facsimile the following, in alphabetical order segments occupied by the species; 505–248–6788). under ‘‘FISHES’’ to the List of (3) Discharge or dumping of Endangered and Threatened Wildlife to pollutants such as chemicals, silt, National Environmental Policy Act read as follows: household or industrial waste, or other We have determined that material into the springs or streams Environmental Assessments and § 17.11 Endangered and threatened occupied by Devils River minnow or Environmental Impact Statements, as wildlife. Species Vertebrate popu- Historic range lation where endan- Status When listed Critical habi- Special Common name Scientific name gered or threatened tat rules ******* FISHES ******* Minnow, Devils River Dionda diaboli ...... U.S.A. (TX), Mexico Entire ...... T 669 NA NA ******* VerDate 12-OCT-99 17:13 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm08 PsN: 20OCR2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56609 Dated: September 30, 1999. Jamie Rappaport Clark, Director, Fish and Wildlife Service. [FR Doc. 99–27188 Filed 10–19–99; 8:45 am] BILLING CODE 4310±55±P VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 eDt 2OT9 31 c 9 99Jt100 O000Fm001Ft41 ft41 :F\M2OR.X fm3PsN:20OCR3 pfrm03 E:\FR\FM\20OCR3.XXX Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt190000 13:18Oct19, 1999 VerDate 12-OCT-99 federal register October 20,1999 Wednesday Accrediting Agencies;FinalRule The Secretary'sRecognitionof 34 CFRPart602 Education Department of Part III 56611 56612 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations DEPARTMENT OF EDUCATION consensus meant that no member of the elements we will use to determine if an committee dissented from the agreed- agency’s standards effectively address 34 CFR Part 602 upon language. The Secretary invited each area for which the agency is comments on the proposed regulations required to have a standard. RIN 1845±AA09 by August 24, 1999, and several Discussion: We disagree with the The Secretary's Recognition of comments were received. An analysis of alternative language suggested by the Accrediting Agencies the comments and of the changes in the first commenter. ‘‘Student learning’’ is proposed regulations follows. extremely important, but it is difficult to AGENCY: Department of Education. In the preamble to the notice of assess comprehensively. Furthermore, ACTION: Final regulations. proposed rulemaking (NPRM), we success with respect to student discussed the changes we proposed to achievement is only one of the areas for SUMMARY: The Secretary amends the improve the accrediting agency which Congress has mandated that regulations governing the Secretary’s recognition process. The major changes agencies have standards. recognition of accrediting agencies to included the following: While we appreciate the desire for implement provisions added to the • Revising and reordering the some type of benchmark in the Higher Education Act of 1965, as standards accrediting agencies must regulations by which to measure the amended (HEA), by the Higher have. effectiveness of an agency’s standards, Education Amendments of 1998. The • Providing a maximum timeframe we believe the issue is quite complex, Secretary recognizes accrediting for agencies to come into compliance and any attempt to define the issue agencies to assure that those agencies with the criteria for recognition (called thoroughly would be over-regulation at are, for HEA and other Federal the ‘‘12-month rule’’). best. Aspects of effectiveness are found purposes, reliable authorities regarding • Including distance education in the in the agency’s standards themselves, in the quality of education or training scope of an agency’s recognition. the agency’s efforts to conduct a offered by the institutions or programs Other proposed changes included in systematic program of review that they accredit. the NPRM were the result of discussion demonstrates that its standards are DATES: These regulations are effective and subsequent consensus among adequate to evaluate educational quality July 1, 2000. negotiators about how to improve the and relevant to the education and training needs of students, and in the FOR FURTHER INFORMATION CONTACT: current regulations by clarifying existing agency’s application of its standards, Karen W. Kershenstein, U.S. regulatory language and eliminating policies, and procedures. As desirable Department of Education, 400 Maryland redundancies. as it might be to try to define Avenue, SW., room 3012, ROB–3, These final regulations contain ‘‘effectiveness’’ in a manner that Washington, DC 20202–5244. If you use several changes resulting from the 26 encompasses and quantifies all of these a telecommunications device for the public comments we received. Most of perspectives, we believe a more deaf (TDD), you may call the Federal the changes are clarifications of the reasoned approach is one of seeking Information Relay Service (FIRS) at 1– regulatory language rather than patterns of evidence that, taken 800–877–8339. substantive changes. We discuss substantive changes under collectively, demonstrate effectiveness. Individuals with disabilities may Change: None. obtain this document in an alternate the sections of the regulations to which format (e.g., Braille, large print, they pertain. We discuss major issues Success With Respect to Student audiotape, or computer diskette) on according to subject, with appropriate Achievement (§ 602.16(a)(1)) sections of the regulations referenced in request to the contact person listed in Comments: While several commenters parentheses. Generally, we do not the preceding paragraph. expressed satisfaction with our overall address technical and other minor SUPPLEMENTARY INFORMATION: The approach to the requirement that changes in the proposed regulations, regulations in this document were agencies have a standard that assesses and do not respond to comments developed through the use of negotiated success with respect to student suggesting changes that the Secretary is rulemaking. Section 492 of the Higher achievement, one commenter expressed not authorized by law to make, e.g., Education Act requires that, before concern that the regulations failed to requiring accrediting agencies to publishing any proposed regulations to make student achievement the conduct unannounced inspections. implement programs under Title IV of ‘‘touchstone’’ of accreditation. To Finally, we do not address comments the Act, the Secretary obtain public remedy this situation, the commenter directed at our processes, such as a involvement in the development of the suggested that this section include a comment that the regulations should be proposed regulations. After obtaining statement that an accrediting agency revised to say that we will evaluate the advice and recommendations, the will not be considered to be a reliable consistency of an accrediting agency’s Secretary must conduct a negotiated authority regarding educational quality application of standards on the basis of rulemaking process to develop the if it denies accreditation to an ‘‘actual fact.’’ proposed regulations. All proposed institution because the institution does regulations must conform to agreements Analysis of Comments and Changes not adhere to the agency’s input resulting from the negotiated standards even though the institution Required Accreditation Standards rulemaking process unless the Secretary achieves success with respect to student (§ 602.16) reopens that process or explains any achievement in relation to its mission. departure from the agreements to the Comments: One commenter believed Another commenter felt the regulations negotiated rulemaking participants. that the regulations needed to include a needed to make it clear that agencies are These regulations were published in definition of ‘‘effectively,’’ which not required to measure success with proposed form in the Federal Register appears in 602.16(a)(1). This commenter respect to student achievement using a on June 25, 1999 (64 FR 34466) in suggested that the definition state that particular assessment strategy. conformance with the consensus of the ‘‘input demands cannot override Discussion: As we explained negotiated rulemaking committee. student learning.’’ Another commenter previously, we believe requiring success Under the committee’s protocols, asked what data, factors, or other with respect to student achievement to VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56613 override all other areas for which of strengthening’’ compliance will be has not been reached. Deferral is not a Congress requires agencies to have handled under the 12-month rule. final decision. standards would conflict with the intent Finally, several commenters Changes: We have changed of Congress. We agree that agencies expressed the opinion that the 602.35(b)(3)(iii) to state that the deferral should be permitted flexibility in regulations should give the National period begins on the date of the selecting strategies for measuring Advisory Committee or the Secretary Secretary’s decision. We have also success with respect to student some latitude in implementing the 12- changed 602.35(d) to clarify that achievement. We recognize that month rule, either for the benefit of recognition of a recognized agency assessing success with respect to agencies that are trying to improve their continues until the Secretary reaches a student achievement is a complex, processes or to allow agencies to final decision to approve or deny multi-dimensional problem. For this continue to be recognized despite their recognition. reason, we discussed in the preamble to noncompliance with some of the the NPRM a number of measures that an criteria. Distance Education and Scope of agency could use, or could require its One commenter thought the Recognition (§ 602.3) institutions or programs to use, in the regulations needed to make it clear that Comments: Several commenters assessment of student achievement. The recognized agencies maintain their expressed concerns about the inclusion key, we believe, is the measurement of status as recognized agencies even if of distance education in the scope of an success with respect to student they are under a deferral or until a agency’s recognition. Most of their achievement in relation to institutional decision on their application for comments focused on whether agencies mission. Different institutional missions continued recognition has been reached. would have to go through a separate may dictate different measures, and Discussion: We understand and review process before distance agencies should be free to choose the appreciate the many concerns that education would be included in their measure or measures they believe to be commenters, most of whom were scope of recognition, although one best suited to the types of institutions or affiliated with recognized accrediting commenter asked why distance programs they accredit, provided they agencies, expressed about this new, education, which the commenter can demonstrate that those measures are statutorily mandated provision. We note described as ‘‘just one particular type of effective. that some of the concerns are directed instructional methodology,’’ should be Change: None. toward process, i.e., how we will included in an agency’s scope of implement this provision, rather than recognition. The ‘‘12-Month’’ Rule (§§ 602.32 and toward the provision itself, and we 602.35) Discussion: The 1998 amendments to generally do not address process in the the Higher Education Act clearly require Comments: We received numerous regulations. us to evaluate distance education comments about these sections of the With regard to the issue of when the accrediting activities as part of the regulations that deal with the provision 12-month period begins, we note that recognition process and to include in the 1998 Amendments to the HEA some of the commenters appear to distance education as a component in requiring the Secretary to limit, assume that the Secretary must always determining the scope of an agency’s suspend, or terminate the recognition of give agencies 12 months to correct recognition. We do not envision an agency if the agency either does not whatever problem caused the Secretary implementing this provision by meet the criteria for recognition or is to decide to defer a decision on the requiring agencies to go through a ineffective in its performance with agency’s application for recognition. separate review process to have distance respect to the criteria. Alternatively, the That is incorrect. Nevertheless, we education included in their scope. statute permits the Secretary to grant an believe it would be useful for the Rather, we will observe and evaluate, as agency a period of no more than 12 regulations to establish clearly that part of our regular review of an agency months during which it must come into whatever deferral period the Secretary for initial or continued recognition, the compliance or demonstrate effectiveness grants, that period begins on the date of agency’s compliance with the criteria in its performance. If it fails to do so the Secretary’s deferral decision. for recognition, including the agency’s On the issue of defining good cause in within the specified timeframe, then the compliance in accrediting distance the regulations, we note that negotiators statute requires the Secretary to limit, education programs and institutions. carefully considered whether the suspend, or terminate the agency’s Change: None. recognition. regulations should define ‘‘good cause’’ Many commenters felt the regulations and in the end concluded that it was Section 602.3 Definitions needed to specify when the 12-month best not to define this term. Instead, the Adverse action period begins. They also felt that it burden rests with an agency that has should begin on the date of the failed to meet the statutory deadline to Comments: One commenter felt that Secretary’s decision. demonstrate that good cause exists for show cause and probation should be One commenter felt that the the Secretary to grant a request for an considered adverse actions to allow regulations needed to define what extension of time. accrediting agencies to work more constitutes good cause. The commenter With regard to the call for greater effectively with institutions that need felt that the regulations should make it flexibility to continue to recognize more time to improve. In raising this clear that the Secretary is expected to agencies that are not in full compliance, issue, the commenter noted that grant extensions only for demonstrable no change can be made because the students are the ones who are hurt most exigency and lack of fault and that statute does not allow for greater if schools have to close if they lose their extensions of the timeframe should be flexibility. accreditation. Another commenter, rare and brief. Finally, the proposed regulations however, supported the change we Many commenters raised questions were intended to convey that a proposed that excludes show cause and about how we will review agencies recognized agency maintains its status probation from the term ‘‘adverse under this provision. In particular, they as a recognized agency even if action on action.’’ questioned how some of our previous its continued recognition has been Discussion: We continue to believe citations of agencies as being ‘‘in need deferred or a decision on recognition that including interim actions such as VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 56614 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations probation and show cause as adverse the waiver of the ‘‘separate and throughout the accreditation period. actions would permit a noncompliant independent’’ requirement nullify the Specifically, they objected to the institution or program to retain availability of the waiver and are not statement that an agency’s monitoring accreditation or preaccreditation well consistent with the statute. procedures must provide for prompt beyond the maximum timeframes the Discussion: We believe the suggestion and appropriate action by an agency regulations prescribe. It would also put that recognized agencies not be required whenever it receives substantial, students at risk because the quality of to demonstrate compliance with 602.14 credible evidence from any reliable education provided by the institution or when they apply for continued source, including the courts, that program might suffer as a result of the recognition has merit. However, we do indicates a systemic problem that calls institution’s or program’s not think a regulatory change is needed into question the ability of an institution noncompliance with the agency’s to implement it. We expect to develop or program to meet the agency’s standards. We believe that the provision new guidelines for agencies on how to standards. They also objected to the in 602.20(b), allowing an agency to submit petitions for recognition under statement in the preamble that we find extend the timeframe for coming into these regulations, and we will it unacceptable for an agency to have as compliance for good cause, gives the implement this suggestion in those its policy that it will not look at, or take agency the flexibility it needs on a case- materials. appropriate action based upon, by-case basis to deal with situations in With respect to the waiver of the information that comes to its attention which the agency believes there is ‘‘separate and independent’’ through pending third-party litigation. justification for giving the institution or requirement, we disagree with the The commenters felt that our position program more time. commenter’s conclusion that the would place the agency in the middle of Change: None. regulations are inconsistent with the the litigation. statute and nullify the availability of the Discussion: The comments are Representative of the public waiver. We note that the regulations on directed to preamble, rather than Comment: One commenter expressed this point remain unchanged from those regulatory, language, so there is no need concern that the proposed definition issued in 1994. to make any changes to the regulations. does not state that a student may serve Change: None. Agencies, under the regulations, have a as a representative of the public. responsibility to monitor institutions Section 602.15 Administrative and Discussion: We continue to believe, as and programs throughout their Fiscal Responsibilities we stated in the preamble to the final accreditation period to ensure that regulations previously amending this Comment: One commenter suggested educational quality is maintained and to part 602, published April 29, 1994 (59 that the composition of on-site take appropriate action whenever they FR 22250) (the 1994 regulations), that it evaluation teams should be receive substantial, credible evidence is useful for agencies to include reconsidered but offered no specific from any reliable source that calls into students and members of their families suggestions for change. question the quality of the education or as representatives of the public. The Discussion: Even though the training provided by the institution or students are the consumers in this commenter provided no specific program. That obligation applies with context. However, the definition we suggestions, we reconsidered the respect to information the agency proposed in the NPRM, which is the proposed language in 602.15(a)(3) and obtains as a result of litigation, just as same as the definition in the 1994 (4) governing the composition of an it applies to information obtained from regulations, does not preclude selection agency’s evaluation, policy, and other sources. of students or their family members for decision-making bodies. We found that Change: None. the language allowed an agency that this purpose. Therefore, there is no need Section 602.21 Review of Standards to change the definition. accredited a single-purpose institution, Change: None. such as a freestanding law school, to Comments: Most commenters liked satisfy the regulations by simply having the proposed regulations, which require Vocational Education educators, i.e., academic and agencies to maintain a systematic Comment: One commenter requested administrative personnel, on these program of review that demonstrates that we add a definition of ‘‘vocational bodies and not any practitioners. While their standards are adequate to evaluate education’’ to 602.3, noting that we we know that most agencies that the quality of education or training mentioned the term in the discussion of accredit single-purpose institutions provided by the institutions and success with respect to student include practitioners on their evaluation programs they accredit and relevant to achievement in the preamble to the teams, we felt it was important that the the needs of students. Two commenters, NPRM. regulations require this practice. however, preferred the language in the Discussion: The term is not used in Change: We have modified 1994 regulations, which required the regulations. Therefore, there is no 602.15(a)(4) to require an agency to have agencies to maintain a systematic need to define it. educators and practitioners on its program of review that demonstrated Change: None. evaluation, policy, and decision-making their standards were valid and reliable bodies if it accredits programs or single- indicators of educational quality. One Section 602.14 Purpose and purpose institutions that prepare commenter thought the phrase ‘‘relevant Organization students for a specific profession. to the needs of students’’ in the Comments: One commenter suggested proposed regulations should be replaced that recognized agencies be exempt from Section 602.19 Monitoring and by the phrase from the 1994 regulations, demonstrating compliance with this Reevaluation of Accredited Institutions ‘‘relevant to the education and training section when they apply for continued and Programs needs of students,’’ which the recognition if they were found to be in Comment: Two commenters commenter believed was more compliance the last time they were expressed concern about the discussion appropriate. Finally, one commenter reviewed and their structure has not in the preamble of the NPRM about stated that an agency’s standards should changed since then. Another commenter agencies’ responsibilities for monitoring not be deemed adequate to evaluate the believed that the provisions related to accredited institutions and programs quality of education or relevant to the VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56615 needs of students if they resulted in the knowledge that their comments will be Discussion: We continue to believe denial of accreditation to schools that considered. Finally, one commenter felt that there is need for an accrediting achieve student success in learning. the requirement for agencies to agency to monitor an institution very Discussion: The issue of the complete an action to change a standard closely as it begins to operate more than validation of standards through the ‘‘within a reasonable period of time’’ just the main campus. While the need systematic review of an agency’s after a problem is found was too vague. for that close monitoring may diminish standards was discussed at length The commenter suggested as an once the institution has gained during negotiated rulemaking. The alternative that agencies could experience in establishing effective ultimate consensus that was reached demonstrate that they have a formal systems for the administration of reflects negotiators’ belief that the process that allows changes to the multiple sites, we do not believe that, in language in the proposed regulations standards to occur in a systematic general, the addition of a single strikes a balance between overly manner. additional site is sufficient for an prescriptive regulation of agencies’ Discussion: During negotiated institution to be able to demonstrate that standards and processes and a rulemaking, accreditors readily it has in place effective mechanisms to requirement that looks only at an acknowledged their responsibility to administer multiple sites. agency’s review process and not at the notify persons they knew to be Change: None. substance of the standards. It also interested, but expressed concern about avoids some of the problems the burden and cost of providing timely Section 602.24(b) Change in Ownership encountered with the language in the and effective notice to a large number of Comment: One commenter stated that 1994 regulations that uses the terms entities to see if they might have an the proposed regulations did not ‘‘validity’’ and ‘‘reliability,’’ the interest in commenting on proposed address a problem that existed with the interpretations of which, when applied changes to their standards. The language 1994 regulations, namely that an agency in the context of agencies’ standards, negotiators agreed upon was an attempt cannot conduct a site visit unless it is were often misunderstood and misused. to find a reasonable solution to the notified of the change in ownership. We believe the comment about the problem. Based on the comments we The commenter suggested requiring need for agencies to demonstrate that received, we have reconsidered the agencies to conduct the site visit within their standards are relevant to the matter. We believe the concept of 6 months following the change, or education and training needs of requiring a regional accreditor to notify notification of the change, whichever students, not simply the needs of all institutions in its region of proposed comes later. students, has merit. However, we changes to its standards has some merit, Discussion: The regulations require an disagree that an agency’s standards but that it imposes a greater burden than agency’s definition of substantive should not be deemed adequate to necessary to address the concern. A change to include any change in the evaluate the quality of education or more reasonable approach, we believe, legal status, form of control, or relevant to the needs of students if its is to require an accrediting agency to ownership of the institution. The standards resulted in the denial of provide notice of proposed changes to agency’s procedures for handling accreditation to schools that achieve its standards to all parties who have substantive change must also require an student success in learning. made their interest known to the institution to obtain the agency’s Demonstrating success with respect to agency. This will ensure that all who approval before the change is included student achievement is certainly want notice will get it. in its scope of accreditation of the necessary to establishing the adequacy With regard to the comment that the institution. Thus, the situation the of an agency’s standards. By itself, regulations should require agencies to commenter describes represents a however, such a demonstration is by no give institutions opportunity and failure by the school to follow the means sufficient to ensure the adequacy adequate time to respond, we believe agency’s required procedures and of those standards. the regulations, by stating that agencies should be dealt with by the agency. No Change: We have changed 602.21(a) must give ‘‘adequate opportunity to regulatory change is needed. Obviously, to require agencies to maintain a comment on the proposed changes,’’ an agency can only conduct a site visit systematic program of review that already do this. if it knows about the change in demonstrates their standards are Finally, we do not believe the phrase ownership, and we would not regard the relevant to the education and training ‘‘within a reasonable period of time’’ is agency as being in violation of the needs of students. too vague. Rather, we believe it provides criteria for recognition if it failed to Section 602.21(c) Process for Changing a degree of flexibility to agencies in conduct a visit within 6 months of the Standards establishing schedules for meetings, change solely because it was not within a reasonable range. informed of the change at the time it Comment: Several commenters raised Change: We have added the phrase occurred. concerns that the proposed regulations ‘‘and other parties who have made their Change: None. require an agency to provide notice interest known to the agency’’ to about proposed changes to standards 602.21(c)(1). Section 602.24(c)(ii) Teach-outs only to its relevant constituencies but Comment: One commenter noted that not to other interested parties. One Section 602.22(a)(vii) Substantive the location of the closing institution commenter felt regional accreditors Change Procedures for Additional may not be very near other institutions should be required to notify all Locations that offer similar programs and institutions in their region, while Comments: Most commenters suggested that the regulations require specialized accreditors should be welcomed the changes to the the teach-out institution to be as required to provide notice to all requirement for mandatory site visits to geographically proximate to the closing institutions that provide education in new sites within 6 months. One institution as possible. the field. Another commenter felt the commenter, however, wanted us to Discussion: We believe that this regulations should require agencies to remove the requirement for a site visit provision in the regulations must give institutions opportunity and to any additional locations a school balance the goal of achieving the most adequate time to respond, with the establishes. geographically proximate teach-out with VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 56616 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations the goal of ensuring, to the extent Section 602.33 Appeal of an Advisory resulting from statutory requirements possible, that a teach-out is offered. Committee Recommendation and those we have determined to be Sometimes there is no institution that is Comments: One commenter thought necessary for a determination that an as close to the closing institution as we that the 10-day timeframe for an agency accrediting agency that seeks might wish. In other instances, the most to file its intent to appeal an Advisory recognition is in fact a reliable authority geographically proximate institution Committee recommendation was too regarding the quality of education or does not want to provide the teach-out, short. The commenter also questioned training provided by the institutions or but another institution is willing to do whether the 10-day timeframe meant 10 programs it accredits. In assessing the potential costs and so even if it is not as close to the closing calendar days or 10 business days. benefits—both quantitative and institution. Discussion: We do not believe the 10- qualitative—of these final regulations, day timeframe to file an intent to appeal We believe the regulations contain the we have determined that the benefits of an Advisory Committee flexibility necessary to best protect the regulations justify the costs. students. They address the proximity recommendation is too short. An agency We have also determined that this issue by requiring the teach-out knows the Advisory Committee’s regulatory action does not unduly institution to demonstrate that it can recommendation as soon as it is made, interfere with State, local, and tribal provide students access to the program and it need only submit a simple governments in the exercise of their without requiring them to move or declaration of intent to appeal, without governmental functions. travel substantial distances. any documentation, to meet the 10-day We discussed the potential costs and requirement. The regulations permit the Change: None. benefits of these final regulations in the agency 30 days to submit the actual preamble to the NPRM under the Section 602.26 Notification of appeal, along with any supporting headings: Changes From Existing Accrediting Decisions documentation that agency may wish Regulations (64 FR 34467–34473), the Secretary to consider. Paperwork Reduction Act of 1995 (64 Comments: One commenter stated On the issue of whether the timeframe FR 34474), and Regulatory Flexibility that the 24-hour rule for notifying the refers to calendar or business days, we Act Certification (64 FR 34474). public of final decisions to place an note that all timeframes specified in institution or program on probation or these regulations follow the same Paperwork Reduction Act of 1995 an equivalent status or to deny, convention as in the previous The Paperwork Reduction Act of 1995 withdraw, suspend, revoke, or terminate regulations; namely, they refer to does not require accrediting agencies to the accreditation or preaccreditation of calendar days, not business days. respond to a collection of information an institution or program was unclear. Change: None. unless it displays a valid Office of The commenter asked whether this Section 602.42 Appeal of the Management and Budget (OMB) control provision meant notifying the public in Subcommittee’s Recommendation number. We display the valid OMB general, for example, by posting the control number assigned to the notice to the agency’s web site, or Comments: One commenter thought collection of information in these final whether it meant telling anyone who that the selection of a subcommittee of regulations at the end of the affected happened to call the agency to inquire the Advisory Committee to conduct a sections of the regulations. about the institution or program. hearing on whether an agency’s recognition should be limited, Assessment of Educational Impact Another commenter suggested that suspended, or terminated should be In the NPRM we requested comments guaranty agencies be included in the done randomly. on whether the proposed regulations notification. Discussion: With regard to the would require transmission of Discussion: With respect to the first composition of the subcommittee, the information that any other agency or commenter, we believe the principal principal issue is the availability of authority of the United States gathers or issue here is providing effective notice members to serve. The subcommittee is makes available. to the public. We believe one way to do only convened if Department staff has Based on the response to the NPRM this is to post the information to the concluded that an agency fails to and on our review, we have determined agency’s web site within 24 hours of comply with the criteria for recognition that these final regulations do not notifying the institution or program, but or is ineffective with respect to those require transmission of information that there may be other ways. The agency criteria, either of which is a very serious any other agency or authority of the should have the flexibility to decide the situation and must be dealt with as United States gathers or makes approach that suits it best. Certainly the quickly as possible. Requiring that available. subcommittee members be selected on a agency should give the information out Electronic Access to This Document to anyone who happens to call the completely random basis, or even on a agency inquiring about the institution or rotating basis, could jeopardize the You may view this document in text program after the 24-hour timeframe. Department’s ability to convene the or Adobe Portable Document Format subcommittee quickly. (PDF) on the Internet at the following We agree with the commenter who Change: None. sites: suggested that guaranty agencies should http://ocfo.ed.gov/fedreg.htm receive notification about accrediting Executive Order 12866 http://ifap.ed.gov/csbllhtml/ decisions. However, an accrediting We have reviewed these final fedlreg.htm agency may not know which guaranty regulations in accordance with http://www.ed.gov/legislation/HEA/ agencies service a particular institution. Executive Order 12866. Under the terms rulemaking/ Accordingly, the Department will of the order, we have assessed the To use the PDF, you must have the establish a process for forwarding this potential costs and benefits of this Adobe Acrobat Reader Program with information, upon receipt, to guaranty regulatory action. Search, which is available free at the agencies. The potential costs associated with first of the previous sites. If you have Change: None. these final regulations are those questions about using the PDF, call the VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56617 U.S. Government Printing Office (GPO), 602.28 Regard for decisions of States and (Authority: 20 U.S.C. 1099b) toll free, at 1–888–293–6498; or in the other accrediting agencies. § 602.2 How do I know which agencies the Washington, DC, area at (202) 512–1530. Subpart CÐThe Recognition Process Secretary recognizes? Note: The official version of this document Application and Review by Department Staff (a) Periodically, the Secretary is the document published in the Federal 602.30 How does an agency apply for publishes a list of recognized agencies Register. Free Internet access to the official recognition? edition of the Federal Register and the Code in the Federal Register, together with 602.31 How does Department staff review of Federal Regulations is available on GPO each agency’s scope of recognition. You an agency’s application? Access at: may obtain a copy of the list from the http://www.access.gpo.gov/nara/ Review by the National Advisory Committee Department at any time. The list is also index.html on Institutional Quality and Integrity available on the Department’s web site. (Catalog of Federal Domestic Assistance 602.32 What is the role of the Advisory (b) If the Secretary denies continued Number does not apply.) Committee and the senior Department recognition to a previously recognized official in the review of an agency’s agency, or if the Secretary limits, List of Subjects in 34 CFR Part 602 application? suspends, or terminates the agency’s Colleges and universities, Education, 602.33 How may an agency appeal a recognition before the end of its Reporting and recordkeeping recommendation of the Advisory Committee? recognition period, the Secretary requirements. publishes a notice of that action in the Review and Decision by the Secretary Dated: October 4, 1999. Federal Register. The Secretary also 602.34 What does the Secretary consider Richard W. Riley, makes the reasons for the action when making a recognition decision? available to the public, on request. Secretary of Education. 602.35 What information does the For the reasons discussed in the Secretary’s recognition decision include? (Authority: 20 U.S.C. 1099b) preamble, the Secretary amends title 34 602.36 May an agency appeal the § 602.3 What definitions apply to this part? of the Code of Federal Regulations by Secretary’s final recognition decision? revising part 602 to read as follows: The following definitions apply to Subpart DÐLimitation, Suspension, or this part: Termination of Recognition PART 602ÐTHE SECRETARY'S Accreditation means the status of RECOGNITION OF ACCREDITING Limitation, Suspension, and Termination public recognition that an accrediting AGENCIES Procedures agency grants to an educational 602.40 How may the Secretary limit, institution or program that meets the Subpart AÐGeneral suspend, or terminate an agency’s agency’s standards and requirements. Sec. recognition? Accrediting agency or agency means a 602.1 Why does the Secretary recognize 602.41 What are the notice procedures? legal entity, or that part of a legal entity, accrediting agencies? 602.42 What are the response and hearing procedures? that conducts accrediting activities 602.2 How do I know which agencies the through voluntary, non-Federal peer Secretary recognizes? 602.43 How is a decision on limitation, 602.3 What definitions apply to this part? suspension, or termination of recognition review and makes decisions concerning reached? the accreditation or preaccreditation Subpart BÐThe Criteria for Recognition Appeal Rights and Procedures status of institutions, programs, or both. Basic Eligibility Requirements Act means the Higher Education Act 602.44 How may an agency appeal the 602.10 Link to Federal programs. subcommittee’s recommendation? of 1965, as amended. 602.11 Geographic scope of accrediting 602.45 May an agency appeal the Adverse accrediting action or adverse activities. Secretary’s final decision to limit, action means the denial, withdrawal, 602.12 Accrediting experience. suspend, or terminate its recognition? suspension, revocation, or termination 602.13 Acceptance of the agency by others. of accreditation or preaccreditation, or Subpart EÐDepartment Responsibilities Organizational and Administrative any comparable accrediting action an Requirements 602.50 What information does the agency may take against an institution 602.14 Purpose and organization. Department share with a recognized or program. 602.15 Administrative and fiscal agency about its accredited institutions Advisory Committee means the and programs? responsibilities. National Advisory Committee on Authority: 20 U.S.C. 1099b, unless Required Standards and Their Application Institutional Quality and Integrity. otherwise noted. 602.16 Accreditation and preaccreditation Branch campus means a location of standards. Subpart AÐGeneral an institution that meets the definition 602.17 Application of standards in reaching of branch campus in 34 CFR 600.2. an accrediting decision. § 602.1 Why does the Secretary recognize Distance education means an 602.18 Ensuring consistency in decision- accrediting agencies? educational process that is characterized making. (a) The Secretary recognizes by the separation, in time or place, 602.19 Monitoring and reevaluation of accrediting agencies to ensure that these between instructor and student. The accredited institutions and programs. agencies are, for the purposes of the term includes courses offered 602.20 Enforcement of standards. 602.21 Review of standards. Higher Education Act of 1965, as principally through the use of— amended (HEA), or for other Federal (1) Television, audio, or computer Required Operating Policies and Procedures purposes, reliable authorities regarding transmission, such as open broadcast, 602.22 Substantive change. the quality of education or training closed circuit, cable, microwave, or 602.23 Operating procedures all agencies offered by the institutions or programs satellite transmission; must have. they accredit. (2) Audio or computer conferencing; 602.24 Additional procedures certain (b) The Secretary lists an agency as a institutional accreditors must have. (3) Video cassettes or disks; or 602.25 Due process. nationally recognized accrediting (4) Correspondence. 602.26 Notification of accrediting decisions. agency if the agency meets the criteria Final accrediting action means a final 602.27 Other information an agency must for recognition listed in subpart B of this determination by an accrediting agency provide the Department. part. regarding the accreditation or VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 56618 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations preaccreditation status of an institution (2) Types of degrees and certificates (b) A region of the United States that or program. A final accrediting action is covered; includes at least three States that are not appealable within the agency. (3) Types of institutions and programs reasonably close to one another; or Institution of higher education or covered; (c) The United States. (4) Types of preaccreditation status institution means an educational (Authority: 20 U.S.C. 1099b) institution that qualifies, or may qualify, covered, if any; and as an eligible institution under 34 CFR (5) Coverage of accrediting activities § 602.12 Accrediting experience. related to distance education, if any. part 600. (a) An agency seeking initial Institutional accrediting agency Secretary means the Secretary of the U.S. Department of Education or any recognition must demonstrate that it means an agency that accredits has— institutions of higher education. official or employee of the Department acting for the Secretary under a (1) Granted accreditation or Nationally recognized accrediting preaccreditation— agency, nationally recognized agency, or delegation of authority. Senior Department official means the recognized agency means an accrediting (i) To one or more institutions if it is senior official in the U.S. Department of agency that the Secretary recognizes requesting recognition as an Education who reports directly to the under this part. institutional accrediting agency and to Secretary regarding accrediting agency one or more programs if it is requesting Preaccreditation means the status of recognition. recognition as a programmatic public recognition that an accrediting State means a State of the Union, accrediting agency; agency grants to an institution or American Samoa, the Commonwealth of program for a limited period of time that (ii) That covers the range of the Puerto Rico, the District of Columbia, specific degrees, certificates, signifies the agency has determined that Guam, the United States Virgin Islands, the institution or program is progressing institutions, and programs for which it the Commonwealth of the Northern seeks recognition; and towards accreditation and is likely to Mariana Islands, the Republic of the (iii) In the geographic area for which attain accreditation before the Marshall Islands, the Federated States of it seeks recognition; and expiration of that limited period of time. Micronesia, and the Republic of Palau. Program means a postsecondary The latter three are also known as the (2) Conducted accrediting activities, educational program offered by an Freely Associated States. including deciding whether to grant or institution of higher education that Teach-out agreement means a written deny accreditation or preaccreditation, leads to an academic or professional agreement between institutions that for at least two years prior to seeking degree, certificate, or other recognized provides for the equitable treatment of recognition. educational credential. students if one of those institutions (b) A recognized agency seeking an Programmatic accrediting agency stops offering an educational program expansion of its scope of recognition means an agency that accredits specific before all students enrolled in that must demonstrate that it has granted educational programs that prepare program have completed the program. accreditation or preaccreditation covering the range of the specific students for entry into a profession, (Authority: 20 U.S.C. 1099b) occupation, or vocation. degrees, certificates, institutions, and Representative of the public means a Subpart BÐThe Criteria for programs for which it seeks the person who is not— Recognition expansion of scope. (1) An employee, member of the (Authority: 20 U.S.C. 1099b) governing board, owner, or shareholder Basic Eligibility Requirements § 602.13 Acceptance of the agency by of, or consultant to, an institution or § 602.10 Link to Federal programs. others. program that either is accredited or The agency must demonstrate that— preaccredited by the agency or has (a) If the agency accredits institutions The agency must demonstrate that its applied for accreditation or of higher education, its accreditation is standards, policies, procedures, and preaccreditation; a required element in enabling at least decisions to grant or deny accreditation (2) A member of any trade association one of those institutions to establish are widely accepted in the United States or membership organization related to, eligibility to participate in HEA by— affiliated with, or associated with the programs; or (a) Educators and educational agency; or (b) If the agency accredits institutions institutions; and (3) A spouse, parent, child, or sibling of higher education or higher education (b) Licensing bodies, practitioners, of an individual identified in paragraph programs, or both, its accreditation is a and employers in the professional or (1) or (2) of this definition. required element in enabling at least vocational fields for which the Scope of recognition or scope means one of those entities to establish educational institutions or programs the range of accrediting activities for eligibility to participate in non-HEA within the agency’s jurisdiction prepare which the Secretary recognizes an Federal programs. their students. agency. The Secretary may place a (Authority: 20 U.S.C. 1099b) limitation on the scope of an agency’s (Authority: 20 U.S.C. 1099b) recognition for Title IV, HEA purposes. § 602.11 Geographic scope of accrediting Organizational and Administrative The Secretary’s designation of scope activities. Requirements defines the recognition granted The agency must demonstrate that its according to— accrediting activities cover— § 602.14 Purpose and organization. (1) Geographic area of accrediting (a) A State, if the agency is part of a (a) The Secretary recognizes only the activities; State government; following four categories of agencies: The Secretary recognizes ... that ... (1) An accrediting agency ...... (i) Has a voluntary membership of institutions of higher education; VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56619 The Secretary recognizes ... that ... (ii) Has as a principal purpose the accrediting of institutions of higher education and that ac- creditation is a required element in enabling those institutions to participate in HEA pro- grams; and (iii) Satisfies the ``separate and independent'' requirements in paragraph (b) of this section. (2) An accrediting agency ...... (i) Has a voluntary membership; and (ii) Has as its principal purpose the accrediting of higher education programs, or higher edu- cation programs and institutions of higher education, and that accreditation is a required ele- ment in enabling those entities to participate in non-HEA Federal programs. (3) An accrediting agency ...... for purposes of determining eligibility for Title IV, HEA programsÐ (i) Either has a voluntary membership of individuals participating in a profession or has as its principal purpose the accrediting of programs within institutions that are accredited by a na- tionally recognized accrediting agency; and (ii) Either satisfies the ``separate and independent'' requirements in paragraph (b) of this sec- tion or obtains a waiver of those requirements under paragraphs (d) and (e) of this section. (4) A State agency ...... (i) Has as a principal purpose the accrediting of institutions of higher education, higher edu- cation programs, or both; and (ii) The Secretary listed as a nationally recognized accrediting agency on or before October 1, 1991 and has recognized continuously since that date. (b) For purposes of this section, the the ‘‘separate and independent’’ policies, and procedures, to conduct its term separate and independent means requirements in paragraph (b) of this on-site evaluations, establish its that— section if the agency demonstrates policies, and make its accrediting and (1) The members of the agency’s that— preaccrediting decisions; decision-making body—who decide the (1) The Secretary listed the agency as (3) Academic and administrative accreditation or preaccreditation status a nationally recognized agency on or personnel on its evaluation, policy, and of institutions or programs, establish the before October 1, 1991 and has decision-making bodies, if the agency agency’s accreditation policies, or recognized it continuously since that accredits institutions; both—are not elected or selected by the date; (2) The related, associated, or (4) Educators and practitioners on its board or chief executive officer of any evaluation, policy, and decision-making related, associated, or affiliated trade affiliated trade association or membership organization plays no role bodies, if the agency accredits programs association or membership organization; or single-purpose institutions that (2) At least one member of the in making or ratifying either the prepare students for a specific agency’s decision-making body is a accrediting or policy decisions of the profession; representative of the public, and at least agency; one-seventh of that body consists of (3) The agency has sufficient (5) Representatives of the public on representatives of the public; budgetary and administrative autonomy all decision-making bodies; and (3) The agency has established and to carry out its accrediting functions (6) Clear and effective controls against implemented guide lines for each independently; and conflicts of interest, or the appearance member of the decision-making body to (4) The agency provides to the related, of conflicts of interest, by the agency’s— avoid conflicts of interest in making associated, or affiliated trade association (i) Board members; or membership organization only decisions; (ii) Commissioners; (4) The agency’s dues are paid information it makes available to the (iii) Evaluation team members; separately from any dues paid to any public. related, associated, or affiliated trade (e) An agency seeking a waiver of the (iv) Consultants; association or membership organization; ‘‘separate and independent’’ (v) Administrative staff; and and requirements under paragraph (d) of this (vi) Other agency representatives; and (5) The agency develops and section must apply for the waiver each time the agency seeks recognition or (b) The agency maintains complete determines its own budget, with no and accurate records of— review by or consultation with any continued recognition. (Authority: 20 U.S.C. 1099b) (1) Its last two full accreditation or other entity or organization. preaccreditation reviews of each (c) The Secretary considers that any § 602.15 Administrative and fiscal institution or program, including on-site joint use of personnel, services, responsibilities. evaluation team reports, the institution’s equipment, or facilities by an agency The agency must have the or program’s responses to on-site and a related, associated, or affiliated administrative and fiscal capability to reports, periodic review reports, any trade association or membership carry out its accreditation activities in reports of special reviews conducted by organization does not violate the light of its requested scope of the agency between regular reviews, and ‘‘separate and independent’’ recognition. The agency meets this a copy of the institution’s or program’s requirements in paragraph (b) of this requirement if the agency demonstrates most recent self-study; and section if— that— (2) All decisions regarding the (1) The agency pays the fair market (a) The agency has— value for its proportionate share of the (1) Adequate administrative staff and accreditation and preaccreditation of joint use; and financial resources to carry out its any institution or program, including all (2) The joint use does not compromise accrediting responsibilities; correspondence that is significantly the independence and confidentiality of (2) Competent and knowledgeable related to those decisions. the accreditation process. individuals, qualified by education and (Approved by the Office of Management and (d) For purposes of paragraph (a)(3) of experience in their own right and Budget under control number 1845–0003) this section, the Secretary may waive trained by the agency on its standards, (Authority: 20 U.S.C. 1099b) VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 56620 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Required Standards and Their nationally recognized institutional (2) The institution’s or program’s Application accrediting agency, the agency is not performance with respect to student required to have the accreditation achievement. § 602.16 Accreditation and standards described in paragraphs preaccreditation standards. (Authority: 20 U.S.C. 1099b) (a)(1)(viii) and (a)(1)(x) of this section. (a) The agency must demonstrate that (d) An agency that has established § 602.18 Ensuring consistency in decision- it has standards for accreditation, and and applies the standards in paragraph making. preaccreditation, if offered, that are (a) of this section may establish any The agency must consistently apply sufficiently rigorous to ensure that the additional accreditation standards it and enforce its standards to ensure that agency is a reliable authority regarding deems appropriate. the education or training offered by an the quality of the education or training institution or program, including any provided by the institutions or programs (Approved by the Office of Management and Budget under control number 1845–0003) offered through distance education, is of it accredits. The agency meets this (Authority: 20 U.S.C. 1099b) sufficient quality to achieve its stated requirement if— objective for the duration of any (1) The agency’s accreditation § 602.17 Application of standards in accreditation or preaccreditation period standards effectively address the quality reaching an accrediting decision. granted by the agency. The agency of the institution or program in the The agency must have effective meets this requirement if the agency— following areas: mechanisms for evaluating an (a) Has effective controls against the (i) Success with respect to student institution’s or program’s compliance inconsistent application of the agency’s achievement in relation to the with the agency’s standards before standards; institution’s mission, including, as reaching a decision to accredit or (b) Bases decisions regarding appropriate, consideration of course preaccredit the institution or program. accreditation and preaccreditation on completion, State licensing The agency meets this requirement if the agency’s published standards; and examination, and job placement rates. the agency demonstrates that it— (c) Has a reasonable basis for (ii) Curricula. (a) Evaluates whether an institution or determining that the information the (iii) Faculty. program— (iv) Facilities, equipment, and agency relies on for making accrediting (1) Maintains clearly specified decisions is accurate. supplies. educational objectives that are (v) Fiscal and administrative capacity consistent with its mission and (Authority: 20 U.S.C. 1099b) as appropriate to the specified scale of appropriate in light of the degrees or § 602.19 Monitoring and reevaluation of operations. certificates awarded; accredited institutions and programs. (vi) Student support services. (2) Is successful in achieving its stated (vii) Recruiting and admissions (a) The agency must reevaluate, at objectives; and regularly established intervals, the practices, academic calendars, catalogs, (3) Maintains degree and certificate institutions or programs it has publications, grading, and advertising. requirements that at least conform to accredited or preaccredited. (viii) Measures of program length and commonly accepted standards; the objectives of the degrees or (b) Requires the institution or program (b) The agency must monitor credentials offered. to prepare, following guidance provided institutions or programs throughout (ix) Record of student complaints by the agency, an in-depth self-study their accreditation or preaccreditation received by, or available to, the agency. that includes the assessment of period to ensure that they remain in (x) Record of compliance with the educational quality and the institution’s compliance with the agency’s standards. institution’s program responsibilities or program’s continuing efforts to This includes conducting special under Title IV of the Act, based on the improve educational quality; evaluations or site visits, as necessary. most recent student loan default rate (c) Conducts at least one on-site (Authority: 20 U.S.C. 1099b) data provided by the Secretary, the review of the institution or program § 602.20 Enforcement of standards. results of financial or compliance during which it obtains sufficient audits, program reviews, and any other information to determine if the (a) If the agency’s review of an information that the Secretary may institution or program complies with institution or program under any provide to the agency; and the agency’s standards; standard indicates that the institution or (2) The agency’s preaccreditation (d) Allows the institution or program program is not in compliance with that standards, if offered, are appropriately the opportunity to respond in writing to standard, the agency must— related to the agency’s accreditation the report of the on-site review; (1) Immediately initiate adverse standards and do not permit the (e) Conducts its own analysis of the action against the institution or institution or program to hold self-study and supporting program; or preaccreditation status for more than documentation furnished by the (2) Require the institution or program five years. institution or program, the report of the to take appropriate action to bring itself (b) If the agency only accredits on-site review, the institution’s or into compliance with the agency’s programs and does not serve as an program’s response to the report, and standards within a time period that institutional accrediting agency for any any other appropriate information from must not exceed— of those programs, its accreditation other sources to determine whether the (i) Twelve months, if the program, or standards must address the areas in institution or program complies with the longest program offered by the paragraph (a)(1) of this section in terms the agency’s standards; and institution, is less than one year in of the type and level of the program (f) Provides the institution or program length; rather than in terms of the institution. with a detailed written report that (ii) Eighteen months, if the program, (c) If none of the institutions an assesses— or the longest program offered by the agency accredits participates in any (1) The institution’s or program’s institution, is at least one year, but less Title IV, HEA program, or if the agency compliance with the agency’s standards, than two years, in length; or only accredits programs within including areas needing improvement; (iii) Two years, if the program, or the institutions that are accredited by a and longest program offered by the VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56621 institution, is at least two years in institution does not adversely affect the or is subject to some limitation by the length. capacity of the institution to continue to agency on its accreditation or (b) If the institution or program does meet the agency’s standards. The agency preaccreditation status; not bring itself into compliance within meets this requirement if— (2) An effective mechanism for the specified period, the agency must (1) The agency requires the institution conducting, at reasonable intervals, take immediate adverse action unless to obtain the agency’s approval of the visits to additional locations of the agency, for good cause, extends the substantive change before the agency institutions that operate more than three period for achieving compliance. includes the change in the scope of additional locations; and (Authority: 20 U.S.C. 1099b) accreditation or preaccreditation it (3) An effective mechanism, which previously granted to the institution; may, at the agency’s discretion, include § 602.21 Review of standards. and visits to additional locations, for (a) The agency must maintain a (2) The agency’s definition of ensuring that accredited and systematic program of review that substantive change includes at least the preaccredited institutions that demonstrates that its standards are following types of change: experience rapid growth in the number adequate to evaluate the quality of the (i) Any change in the established of additional locations maintain education or training provided by the mission or objectives of the institution. educational quality. institutions and programs it accredits (ii) Any change in the legal status, (d) The purpose of the visits described and relevant to the educational or form of control, or ownership of the in paragraph (c) of this section is to training needs of students. institution. verify that the additional location has (b) The agency determines the specific (iii) The addition of courses or the personnel, facilities, and resources it procedures it follows in evaluating its programs that represent a significant claimed to have in its application to the standards, but the agency must ensure departure, in either content or method agency for approval of the additional that its program of review— of delivery, from those that were offered location. (1) Is comprehensive; when the agency last evaluated the (Authority: 20 U.S.C. 1099b) (2) Occurs at regular, yet reasonable, institution. intervals or on an ongoing basis; (iv) The addition of courses or § 602.23 Operating procedures all (3) Examines each of the agency’s programs at a degree or credential level agencies must have. standards and the standards as a whole; above that which is included in the (a) The agency must maintain and and institution’s current accreditation or make available to the public, upon (4) Involves all of the agency’s preaccreditation. request, written materials describing— relevant constituencies in the review (v) A change from clock hours to (1) Each type of accreditation and and affords them a meaningful credit hours. preaccreditation it grants; opportunity to provide input into the (vi) A substantial increase in the (2) The procedures that institutions or review. number of clock or credit hours programs must follow in applying for (c) If the agency determines, at any awarded for successful completion of a accreditation or preaccreditation; point during its systematic program of program. (3) The standards and procedures it review, that it needs to make changes to (vii) The establishment of an uses to determine whether to grant, its standards, the agency must initiate additional location geographically apart reaffirm, reinstate, restrict, deny, revoke, action within 12 months to make the from the main campus at which the terminate, or take any other action changes and must complete that action institution offers at least 50 percent of related to each type of accreditation and within a reasonable period of time. an educational program. preaccreditation that the agency grants; Before finalizing any changes to its (b) The agency may determine the (4) The institutions and programs that standards, the agency must— procedures it uses to grant prior the agency currently accredits or (1) Provide notice to all of the approval of the substantive change. preaccredits and, for each institution agency’s relevant constituencies, and Except as provided in paragraph (c) of and program, the year the agency will other parties who have made their this section, these may, but need not, next review or reconsider it for interest known to the agency, of the require a visit by the agency. accreditation or preaccreditation; and changes the agency proposes to make; (c) If the agency’s accreditation of an (5) The names, academic and (2) Give the constituencies and other institution enables the institution to professional qualifications, and relevant interested parties adequate opportunity seek eligibility to participate in Title IV, employment and organizational to comment on the proposed changes; HEA programs, the agency’s procedures affiliations of— and for the approval of an additional (i) The members of the agency’s (3) Take into account any comments location described in paragraph policy and decision-making bodies; and on the proposed changes submitted (a)(2)(vii) of this section must determine (ii) The agency’s principal timely by the relevant constituencies if the institution has the fiscal and administrative staff. and by other interested parties. administrative capacity to operate the (b) In providing public notice that an additional location. In addition, the institution or program subject to its (Authority: 20 U.S.C. 1099b) agency’s procedures must include— jurisdiction is being considered for Required Operating Policies and (1) A visit, within six months, to each accreditation or preaccreditation, the Procedures additional location the institution agency must provide an opportunity for establishes, if the institution— third-party comment concerning the § 602.22 Substantive change. (i) Has a total of three or fewer institution’s or program’s qualifications (a) If the agency accredits institutions, additional locations; for accreditation or preaccreditation. At it must maintain adequate substantive (ii) Has not demonstrated, to the the agency’s discretion, third-party change policies that ensure that any agency’s satisfaction, that it has a comment may be received either in substantive change to the educational proven record of effective educational writing or at a public hearing, or both. mission, program, or programs of an oversight of additional locations; or (c) The accrediting agency must— institution after the agency has (iii) Has been placed on warning, (1) Review in a timely, fair, and accredited or preaccredited the probation, or show cause by the agency equitable manner any complaint it VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 56622 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations receives against an accredited (2) The agency may extend with the agency’s requests for institution or program that is related to accreditation to the branch campus only information and documents. the agency’s standards or procedures; after it evaluates the business plan and (b) The agency notifies the institution (2) Take follow-up action, as takes whatever other actions it deems or program in writing of any adverse necessary, including enforcement necessary to determine that the branch accrediting action or an action to place action, if necessary, based on the results campus has sufficient educational, the institution or program on probation of its review; and financial, operational, management, and or show cause. The notice describes the (3) Review in a timely, fair, and physical resources to meet the agency’s basis for the action. equitable manner, and apply unbiased standards. (c) The agency permits the institution judgment to, any complaints against (3) The agency must undertake a site or program the opportunity to appeal an itself and take follow-up action, as visit to the branch campus as soon as adverse action and the right to be appropriate, based on the results of its practicable, but no later than six months represented by counsel during that review. after the establishment of that campus. appeal. If the agency allows institutions (d) If an institution or program elects (b) Change in ownership. The agency or programs the right to appeal other to make a public disclosure of its must undertake a site visit to an types of actions, the agency has the accreditation or preaccreditation status, institution that has undergone a change discretion to limit the appeal to a the agency must ensure that the of ownership that resulted in a change written appeal. institution or program discloses that of control as soon as practicable, but no (d) The agency notifies the institution status accurately, including the specific later than six months after the change of or program in writing of the result of its academic or instructional programs ownership. appeal and the basis for that result. covered by that status and the name, (c) Teach-out agreements. (1) The (Authority: 20 U.S.C. 1099b) address, and telephone number of the agency must require an institution it agency. accredits or preaccredits that enters into § 602.26 Notification of accrediting decisions. (e) The accrediting agency must a teach-out agreement with another provide for the public correction of institution to submit that teach-out The agency must demonstrate that it incorrect or misleading information an agreement to the agency for approval. has established and follows written (2) The agency may approve the accredited or preaccredited institution procedures requiring it to provide teach-out agreement only if the or program releases about— written notice of its accrediting agreement is between institutions that (1) The accreditation or decisions to the Secretary, the are accredited or preaccredited by a preaccreditation status of the institution appropriate State licensing or nationally recognized accrediting or program; authorizing agency, the appropriate agency, is consistent with applicable (2) The contents of reports of on-site accrediting agencies, and the public. standards and regulations, and provides reviews; and The agency meets this requirement if for the equitable treatment of students the agency, following its written (3) The agency’s accrediting or by ensuring that— preaccrediting actions with respect to procedures— (i) The teach-out institution has the (a) Provides written notice of the the institution or program. necessary experience, resources, and following types of decisions to the (f) The agency may establish any support services to provide an Secretary, the appropriate State additional operating procedures it educational program that is of licensing or authorizing agency, the deems appropriate. At the agency’s acceptable quality and reasonably appropriate accrediting agencies, and discretion, these may include similar in content, structure, and the public no later than 30 days after it unannounced inspections. scheduling to that provided by the makes the decision: (Approved by the Office of Management and closed institution; and (1) A decision to award initial Budget under control number 1845–0003) (ii) The teach-out institution accreditation or preaccreditation to an (Authority: 20 U.S.C. 1099b) demonstrates that it can provide institution or program. students access to the program and (2) A decision to renew an § 602.24 Additional procedures certain services without requiring them to move institution’s or program’s accreditation institutional accreditors must have. or travel substantial distances. or preaccreditation; If the agency is an institutional (3) If an institution the agency (b) Provides written notice of the accrediting agency and its accreditation accredits or preaccredits closes, the following types of decisions to the or preaccreditation enables those agency must work with the Department Secretary, the appropriate State institutions to obtain eligibility to and the appropriate State agency, to the licensing or authorizing agency, and the participate in Title IV, HEA programs, extent feasible, to ensure that students appropriate accrediting agencies at the the agency must demonstrate that it has are given reasonable opportunities to same time it notifies the institution or established and uses all of the following complete their education without program of the decision, but no later procedures: additional charge. than 30 days after it reaches the (a) Branch campus. (1) The agency (Approved by the Office of Management and decision: must require the institution to notify the Budget under control number 1845–0003) (1) A final decision to place an agency if it plans to establish a branch (Authority: 20 U.S.C. 1099b) institution or program on probation or campus and to submit a business plan an equivalent status. for the branch campus that describes— § 602.25 Due process. (2) A final decision to deny, (i) The educational program to be The agency must demonstrate that the withdraw, suspend, revoke, or terminate offered at the branch campus; procedures it uses throughout the the accreditation or preaccreditation of (ii) The projected revenues and accrediting process satisfy due process. an institution or program; expenditures and cash flow at the The agency meets this requirement if (c) Provides written notice to the branch campus; and the agency does the following: public of the decisions listed in (iii) The operation, management, and (a) The agency uses procedures that paragraphs (b)(1) and (b)(2) of this physical resources at the branch afford an institution or program a section within 24 hours of its notice to campus. reasonable period of time to comply the institution or program; VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56623 (d) For any decision listed in information to assist the Department in about the accreditation or paragraph (b)(2) of this section, makes resolving problems with the preaccreditation status of an institution available to the Secretary, the institution’s participation in the Title or program and any adverse actions it appropriate State licensing or IV, HEA programs. has taken against an accredited or authorizing agency, and the public upon (Approved by the Office of Management and preaccredited institution or program. request, no later than 60 days after the Budget under control number 1845–0003) (Approved by the Office of Management and decision, a brief statement summarizing (Authority: 20 U.S.C. 1099b) Budget under control number 1845–0003) the reasons for the agency’s decision (Authority: 20 U.S.C. 1099b) and the comments, if any, that the § 602.28 Regard for decisions of States affected institution or program may and other accrediting agencies. Subpart CÐThe Recognition Process wish to make with regard to that (a) If the agency is an institutional decision; and accrediting agency, it may not accredit Application and Review by Department (e) Notifies the Secretary, the or preaccredit institutions that lack legal Staff appropriate State licensing or authorization under applicable State § 602.30 How does an agency apply for authorizing agency, the appropriate law to provide a program of education recognition? accrediting agencies, and, upon request, beyond the secondary level. (a) An accrediting agency seeking the public if an accredited or (b) Except as provided in paragraph initial or continued recognition must preaccredited institution or program— (c) of this section, the agency may not submit a written application to the (1) Decides to withdraw voluntarily grant initial or renewed accreditation or Secretary. The application must consist from accreditation or preaccreditation, preaccreditation to an institution, or a of— within 30 days of receiving notification program offered by an institution, if the (1) A statement of the agency’s from the institution or program that it is agency knows, or has reasonable cause requested scope of recognition; withdrawing voluntarily from to know, that the institution is the (2) Evidence that the agency complies accreditation or preaccreditation; or subject of— with the criteria for recognition listed in (2) Lets its accreditation or (1) A pending or final action brought subpart B of this part; and preaccreditation lapse, within 30 days by a State agency to suspend, revoke, (3) Supporting documentation. of the date on which accreditation or withdraw, or terminate the institution’s (b) By submitting an application for preaccreditation lapses. legal authority to provide postsecondary recognition, the agency authorizes (Approved by the Office of Management and education in the State; Department staff to observe its site visits Budget under control number 1845–0003) (2) A decision by a recognized agency and decision meetings and to gain to deny accreditation or (Authority: 20 U.S.C. 1099b) access to agency records, personnel, and preaccreditation; facilities on an announced or § 602.27 Other information an agency (3) A pending or final action brought unannounced basis. must provide the Department. by a recognized accrediting agency to (c) The Secretary does not make The agency must submit to the suspend, revoke, withdraw, or terminate available to the public any confidential Department— the institution’s accreditation or agency materials a Department (a) A copy of any annual report it preaccreditation; or employee reviews during the evaluation prepares; (4) Probation or an equivalent status of either the agency’s application for (b) A copy, updated annually, of its imposed by a recognized agency. recognition or the agency’s compliance directory of accredited and (c) The agency may grant with the criteria for recognition. preaccredited institutions and programs; accreditation or preaccreditation to an institution or program described in (Approved by the Office of Management and (c) A summary of the agency’s major Budget under control number 1845–0003) paragraph (b) of this section only if it accrediting activities during the (Authority: 20 U.S.C. 1099b) previous year (an annual data provides to the Secretary, within 30 summary), if requested by the Secretary days of its action, a thorough and § 602.31 How does Department staff to carry out the Secretary’s reasonable explanation, consistent with review an agency's application? responsibilities related to this part; its standards, why the action of the (a) Upon receipt of an agency’s (d) Any proposed change in the other body does not preclude the application for either initial or agency’s policies, procedures, or agency’s grant of accreditation or continued recognition, Department accreditation or preaccreditation preaccreditation. staff— standards that might alter its— (d) If the agency learns that an (1) Establishes a schedule for the (1) Scope of recognition; or institution it accredits or preaccredits, review of the agency by Department (2) Compliance with the criteria for or an institution that offers a program it staff, the National Advisory Committee recognition; accredits or preaccredits, is the subject on Institutional Quality and Integrity, (e) The name of any institution or of an adverse action by another and the Secretary; program it accredits that the agency has recognized accrediting agency or has (2) Publishes a notice of the agency’s reason to believe is failing to meet its been placed on probation or an application in the Federal Register, Title IV, HEA program responsibilities equivalent status by another recognized inviting the public to comment on the or is engaged in fraud or abuse, along agency, the agency must promptly agency’s compliance with the criteria with the agency’s reasons for concern review its accreditation or for recognition and establishing a about the institution or program; and preaccreditation of the institution or deadline for receipt of public comment; (f) If the Secretary requests, program to determine if it should also and information that may bear upon an take adverse action or place the (3) Provides State licensing or accredited or preaccredited institution’s institution or program on probation or authorizing agencies, all currently compliance with its Title IV, HEA show cause. recognized accrediting agencies, and program responsibilities, including the (e) The agency must, upon request, other appropriate organizations with eligibility of the institution or program share with other appropriate recognized copies of the Federal Register notice. to participate in Title IV, HEA programs. accrediting agencies and recognized (b) Department staff analyzes the The Secretary may ask for this State approval agencies information agency’s application to determine VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 56624 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations whether the agency satisfies the criteria Committee meeting, the agency may decision on the agency’s application for for recognition, taking into account all request that the Advisory Committee recognition. available relevant information defer acting on the application at that (1)(i) The Advisory Committee concerning the compliance of the meeting. If Department staff’s failure to recommends approval of recognition if agency with those criteria and any send the materials at least 45 days the agency complies with the criteria for deficiencies in the agency’s performance before the Advisory Committee meeting recognition listed in subpart B of this with respect to the criteria. The analysis is due to the failure of the agency to part and if the agency is effective in its includes— submit reports or other information the performance with respect to those (1) Site visits, on an announced or Secretary requested by the deadline the criteria. unannounced basis, to the agency and, Secretary established, the agency forfeits (ii) If the Advisory Committee at the Secretary’s discretion, to some of its right to request a deferral. recommends approval, the Advisory the institutions or programs it accredits (g) Department staff reviews any Committee also recommends a or preaccredits; response to the staff analysis that the recognition period and a scope of (2) Review of the public comments agency submits. If necessary, recognition. and other third-party information the Department staff prepares an addendum (iii) If the recommended scope or Department staff receives by the to the staff analysis and provides the period of recognition is less than that established deadline, as well as any agency with a copy. requested by the agency, the Advisory other information Department staff (h) Before the Advisory Committee Committee explains its reasons for assembles for purposes of evaluating the meeting, Department staff provides the recommending the lesser scope or agency under this part; and Advisory Committee with the following recognition period. (3) Review of complaints or legal information: (2)(i) If the agency fails to comply actions involving the agency. (1) The agency’s application for with the criteria for recognition in (c) Department staff’s evaluation may recognition and supporting subpart B of this part, or if the agency also include a review of information documentation. is not effective in its performance with directly related to institutions or (2) The Department staff analysis of respect to those criteria, the Advisory programs accredited or preaccredited by the agency. Committee recommends denial of the agency relative to their compliance (3) Any written third-party comments recognition, unless the Advisory with the agency’s standards, the the Department received about the Committee concludes that a deferral effectiveness of the standards, and the agency on or before the established under paragraph (b)(3) of this section is agency’s application of those standards. deadline. warranted. (d) If, at any point in its evaluation of (4) Any agency response to either the (ii) If the Advisory Committee an agency seeking initial recognition, Department staff analysis or third-party recommends denial, the Advisory Department staff determines that the comments. Committee specifies the reasons for its agency fails to demonstrate substantial (5) Any addendum to the Department recommendation, including all criteria compliance with the basic eligibility staff analysis. the agency fails to meet and all areas in requirements in §§ 602.10 through (6) Any other information Department which the agency fails to perform 602.13, the staff— staff relied on in developing its analysis. effectively. (1) Returns the agency’s application (i) At least 30 days before the (3)(i) The Advisory Committee may and provides the agency with an Advisory Committee meeting, the recommend deferral of a decision on explanation of the deficiencies that Department publishes a notice of the recognition if it concludes that the caused staff to take that action; and meeting in the Federal Register inviting agency’s deficiencies do not warrant (2) Recommends that the agency interested parties, including those who immediate loss of recognition and if it withdraw its application and reapply submitted third-party comments concludes that the agency will when the agency can demonstrate concerning the agency’s compliance demonstrate or achieve compliance with compliance. with the criteria for recognition, to make the criteria for recognition and effective (e) Except with respect to an oral presentations before the Advisory performance with respect to those application that is withdrawn under Committee. criteria before the expiration of the paragraph (d) of this section, when deferral period. Department staff completes its (Authority: 20 U.S.C. 1099b) (ii) In its deferral recommendation, evaluation of the agency, the staff— Review by the National Advisory the Advisory Committee states the bases (1) Prepares a written analysis of the Committee on Institutional Quality and for its conclusions, specifies any criteria agency, which includes a recognition Integrity for recognition the agency fails to meet, recommendation; and identifies any areas in which the (2) Sends the analysis and all § 602.32 What is the role of the Advisory agency fails to perform effectively with supporting documentation, including all Committee and the senior Department respect to the criteria. third-party comments the Department official in the review of an agency's (iii) The Advisory Committee also received by the established deadline, to application? recommends a deferral period, which the agency no later than 45 days before (a) The Advisory Committee considers may not exceed 12 months, either as a the Advisory Committee meeting; and an agency’s application for recognition single deferral period or in combination (3) Invites the agency to provide a at a public meeting and invites with any expiring deferral period in written response to the staff analysis Department staff, the agency, and other which similar deficiencies in and third-party comments, specifying a interested parties to make oral compliance or performance were cited deadline for the response that is at least presentations at the meeting. A by the Secretary. two weeks before the Advisory transcript is made of each Advisory (c) At the conclusion of its meeting, Committee meeting. Committee meeting. the Advisory Committee forwards its (f) If Department staff fails to provide (b) When it concludes its review, the recommendations to the Secretary the agency with the materials described Advisory Committee recommends that through the senior Department official. in paragraph (e)(2) of this section at the Secretary either approve or deny (d) For any Advisory Committee least 45 days before the Advisory recognition or that the Secretary defer a recommendation not appealed under VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56625 § 602.33, the senior Department official (h) All oral presentations at the (iv) The deferral period may not includes with the Advisory Committee Advisory Committee meeting. exceed 12 months, either as a single materials forwarded to the Secretary a (i) Any materials submitted by the deferral period or in combination with memorandum containing the senior parties, within the established any expiring deferral period in which Department official’s recommendations timeframes, in an appeal taken in similar deficiencies in compliance or regarding the actions proposed by the accordance with § 602.33. performance were cited by the Advisory Committee. (Authority: 20 U.S.C. 1099b) Secretary, except that the Secretary may (Authority: 20 U.S.C. 1099b and 1145) grant an extension of an expiring § 602.35 What information does the deferral period at the request of the § 602.33 How may an agency appeal a Secretary's recognition decision include? agency for good cause shown. recommendation of the Advisory (a) The Secretary notifies the agency (c) The recognition period may not Committee? in writing of the Secretary’s decision exceed five years. (a) Either the agency or the senior regarding the agency’s application for Department official may appeal the recognition. (d) If the Secretary does not reach a Advisory Committee’s recommendation. (b) The Secretary either approves or final decision to approve or deny an If a party wishes to appeal, that party denies recognition or defers a decision agency’s application for continued must— on the agency’s application for recognition before the expiration of its (1) Notify the Secretary and the other recognition. recognition period, the Secretary party in writing of its intent to appeal (1)(i) The Secretary approves automatically extends the recognition the recommendation no later than 10 recognition if the agency complies with period until the final decision is days after the Advisory Committee the criteria for recognition listed in reached. meeting; subpart B of this part and if the agency (Authority: 20 U.S.C. 1099b) (2) Submit its appeal in writing to the is effective in its performance with Secretary no later than 30 days after the respect to those criteria. § 602.36 May an agency appeal the Advisory Committee meeting; and (ii) If the Secretary approves Secretary's final recognition decision? (3) Provide the other party with a recognition, the Secretary’s recognition An agency may appeal the Secretary’s copy of the appeal at the same time it decision defines the scope of decision under this part in the Federal submits the appeal to the Secretary. recognition and the recognition period. courts as a final decision in accordance (b) The non-appealing party may file (iii) If the scope or period of with applicable Federal law. a written response to the appeal. If that recognition is less than that requested party wishes to do so, it must— by the agency, the Secretary explains (Authority: 20 U.S.C. 1099b) (1) Submit its response to the the reasons for approving a lesser scope Subpart DÐLimitation, Suspension, or Secretary no later than 30 days after or recognition period. Termination of Recognition Limitation, (2)(i) If the agency fails to comply receiving its copy of the appeal; and Suspension, and Termination with the criteria for recognition in (2) Provide the appealing party with Procedures a copy of its response at the same time subpart B of this part, or if the agency it submits its response to the Secretary. is not effective in its performance with § 602.40 How may the Secretary limit, (c) Neither the agency nor the senior respect to those criteria, the Secretary suspend, or terminate an agency's Department official may include any denies recognition, unless the Secretary recognition? new evidence in its submission; i.e., concludes that a deferral under (a) If the Secretary determines, after evidence it did not previously submit to paragraph (b)(3) of this section is notice and an opportunity for a hearing, the Advisory Committee. warranted. that a recognized agency does not (ii) If the Secretary denies recognition, (Authority: 20 U.S.C. 1099b and 1145) comply with the criteria for recognition the Secretary specifies the reasons for Review and Decision by the Secretary in subpart B of this part or that the this decision, including all criteria the agency is not effective in its § 602.34 What does the Secretary consider agency fails to meet and all areas in performance with respect to those when making a recognition decision? which the agency fails to perform criteria, the Secretary— The Secretary makes the decision effectively. regarding recognition of an agency (3)(i) The Secretary may defer a (1) Limits, suspends, or terminates the based on the entire record of the decision on recognition if the Secretary agency’s recognition; or agency’s application, including the concludes that the agency’s deficiencies (2) Requires the agency to take following: do not warrant immediate loss of appropriate action to bring itself into (a) The Advisory Committee’s recognition and if the Secretary compliance with the criteria and recommendation. concludes that the agency will achieve effectiveness within a (b) The senior Department official’s demonstrate or achieve compliance with timeframe that may not exceed 12 recommendation, if any. the criteria for recognition and effective months. (c) The agency’s application and performance with respect to those (b) If, at the conclusion of the supporting documentation. criteria before the expiration of the timeframe specified in paragraph (a)(2) (d) The Department staff analysis of deferral period. the agency. (ii) In the deferral decision, the of this section, the Secretary determines, (e) All written third-party comments Secretary states the bases for the after notice and an opportunity for a forwarded by Department staff to the Secretary’s conclusions, specifies any hearing, that the agency has failed to Advisory Committee for consideration criteria for recognition the agency fails bring itself into compliance or has failed at the meeting. to meet, and identifies any areas in to achieve effectiveness, the Secretary (f) Any agency response to the which the agency fails to perform limits, suspends, or terminates Department staff analysis and third- effectively with respect to the criteria. recognition, unless the Secretary party comments. (iii) The Secretary also establishes a extends the timeframe, on request by the (g) Any addendum to the Department deferral period, which begins on the agency for good cause shown. staff analysis. date of the Secretary’s decision. (Authority: 20 U.S.C. 1099b). VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 56626 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations § 602.41 What are the notice procedures? (2) A transcript is made of the (3) Provide the other party with a (a) Department staff initiates an action hearing. copy of the appeal at the same time it to limit, suspend, or terminate an (3) Except as provided in paragraph submits the appeal to the Secretary. agency’s recognition by notifying the (e) of this section, the subcommittee (b) The non-appealing party may file agency in writing of the Secretary’s allows Department staff, the agency, and a written response to the appeal. If that intent to limit, suspend, or terminate any interested party to make an oral or party wishes to do so, it must— recognition. The notice— written presentation, which may (1) Describes the specific action the include the introduction of written and (1) Submit its response to the Secretary seeks to take against the oral evidence. Secretary no later than 30 days after agency and the reasons for that action, (e) On agreement by Department staff receiving its copy of the appeal; and including the criteria with which the and the agency, the subcommittee (2) Provide the appealing party with agency has failed to comply; review may be based solely on the a copy of its response at the same time (2) Specifies the effective date of the written materials submitted. it submits its response to the Secretary. action; and (Authority: 20 U.S.C. 1099b) (c) Neither the agency nor the senior (3) Informs the agency of its right to § 602.43 How is a decision on limitation, Department official may include any respond to the notice and request a new evidence in its submission, i.e., hearing. suspension, or termination of recognition reached? evidence it did not previously submit to (b) Department staff may send the the subcommittee. notice described in paragraph (a) of this (a) After consideration of the notice of section at any time the staff concludes intent to limit, suspend, or terminate (d) If the subcommittee’s that the agency fails to comply with the recognition, the agency’s response, if recommendation is appealed, the criteria for recognition in subpart B of any, and all submissions and Secretary renders a final decision after this part or is not effective in its presentations made at the hearing, if taking into account that performance with respect to those any, the subcommittee issues a written recommendation and the parties’ criteria. opinion and sends it to the Secretary, written submissions on appeal, as well with copies to the agency and the senior as the entire record before the (Authority: 20 U.S.C. 1099b) Department official. The opinion subcommittee and the subcommittee’s § 602.42 What are the response and includes— opinion. (1) Findings of fact, based on hearing procedures? (Authority: 20 U.S.C. 1099b) (a) If the agency wishes either to consideration of all the evidence, respond to the notice or request a presentations, and submissions before § 602.45 May an agency appeal the hearing, or both, it must do so in writing the subcommittee; Secretary's final decision to limit, suspend, (2) A recommendation as to whether or terminate its recognition? no later than 30 days after it receives the a limitation, suspension, or termination notice of the Secretary’s intent to limit, An agency may appeal the Secretary’s of the agency’s recognition is warranted; suspend, or terminate recognition. final decision limiting, suspending, or and (1) The agency’s submission must (3) The reasons supporting the terminating its recognition to the identify the issues and facts in dispute subcommittee’s recommendation. Federal courts as a final decision in and the agency’s position on them. (b) Unless the subcommittee’s accordance with applicable Federal law. (2) If neither a response nor a request recommendation is appealed under (Authority: 20 U.S.C. 1099b) for a hearing is filed by the deadline, the § 602.44, the Secretary issues a final notice of intent becomes a final decision decision on whether to limit, suspend, Subpart EÐDepartment by the Secretary. or terminate the agency’s recognition. Responsibilities (b)(1) After receiving the agency’s The Secretary bases the decision on response and hearing request, if any, the § 602.50 What information does the consideration of the full record before Department share with a recognized agency Secretary chooses a subcommittee the subcommittee and the composed of five members of the about its accredited institutions and subcommittee’s opinion. programs? Advisory Committee to adjudicate the matter and notifies the agency of the (Authority: 20 U.S.C. 1099b) (a) If the Department takes an action subcommittee’s membership. Appeal Rights and Procedures against an institution or program (2) The agency may challenge accredited by the agency, it notifies the membership of the subcommittee on § 602.44 How may an agency appeal the agency no later than 10 days after taking grounds of conflict of interest on the subcommittee's recommendation? that action. part of one or more members and, if the (a) Either the agency or the senior (b) If another Federal agency or a State agency’s challenge is successful, the Department official may appeal the agency notifies the Department that it Secretary will replace the member or subcommittee’s recommendation. If a has taken an action against an members challenged. party wishes to appeal, that party institution or program accredited by the (c) After the subcommittee has been must— agency, the Department notifies the selected, Department staff sends the (1) Notify the Secretary and the other agency as soon as possible but no later members of the subcommittee copies of party in writing of its intent to appeal than 10 days after receiving the written the notice to limit, suspend, or the recommendation no later than 10 notice from the other Government terminate recognition, along with the days after receipt of the agency. agency’s response, if any. recommendation; (d)(1) If a hearing is requested, it is (2) Submit its appeal to the Secretary (Authority: 20 U.S.C. 1099b) held in Washington, DC, at a date and in writing no later than 30 days after [FR Doc. 99–27313 Filed 10–19–99; 8:45 am] time set by Department staff. receipt of the recommendation; and BILLING CODE 4000±01±P VerDate 12-OCT-99 13:18 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR3.XXX pfrm03 PsN: 20OCR3 eDt 2OT9 32 c 9 99Jt100 O000Fm001Ft41 ft41 :F\MA0C.9 fm3PsN:20OCN2 pfrm03 E:\FR\FM\A20OC3.096 Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt190000 13:24Oct19, 1999 VerDate 12-OCT-99 federal register October 20,1999 Wednesday Defining MetropolitanAreas;Notice Concerning ChangestotheStandards for Office ofManagementandBudget Area StandardsReviewCommitteetothe Recommendations FromtheMetropolitan Budget Management and Office of Part IV 56627 56628 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices OFFICE OF MANAGEMENT AND AppendixÐReport to the Office of 70526–70561). Table 1 of the December BUDGET Management and Budget on the Review of Notice summarized the evolution of MA the Metropolitan Area Standards and standards since 1950. (The December Recommendations From the Recommendations for Standards for Notice is available on the OMB web Metropolitan Area Standards Review Defining Core-Based Statistical Areas for the First Decade of the 21st Century site.) Committee to the Office of Management and Budget Concerning A. Formation of the Metropolitan Area 2. Review Process Changes to the Standards for Defining Standards Review Committee The MA standards are reviewed and, Metropolitan Areas B. Public Participation and Comment if warranted, revised in the years C. Review Process D. Principles Guiding Review and preceding each decennial census. AGENCY: Executive Office of the Development of Recommendations Periodic review of the MA standards is President, Office of Management and E. Issues Under Review necessary to ensure their continued Budget (OMB), Office of Information F. Comparison of the Current Metropolitan usefulness and relevance. The current and Regulatory Affairs. Area Standards with the Recommended review of the MA standards—the Core-Based Statistical Area Standards ACTION: Notice and request for Metropolitan Area Standards Review G. Recommended Standards for Defining comments. Project (MASRP)—is the sixth such Core-Based Statistical Areas for the First review; it has been especially thorough, Decade of the 21st Century reflecting as a first priority users’ SUMMARY: OMB requests comments on H. Key Terms recommendations that it has received concerns with the conceptual and from the Metropolitan Area Standards 1. Background operational complexity of the standards Review Committee (MASRC) for The metropolitan area (MA) program that have evolved over the decades. changes to OMB’s metropolitan area has provided standard statistical area Other key concerns behind the (MA) standards. MASRC’s report and definitions at the metropolitan level for particularly thorough nature of recommendations, which are published 50 years. In the 1940s, it became clear MASRP’s efforts have been: (1) whether in their entirety in the Appendix, are that the value of data produced at that modifications to the standards over the the result of a comprehensive review of level by Federal Government agencies years have permitted them to stay the MA concept and current (1990) would be greatly enhanced if agencies abreast of changes in population standards that began earlier this decade. used a single set of geographic distribution and activity patterns; (2) The review will culminate in definitions for the Nation’s metropolitan whether advances in computer publication prior to Census 2000 of areas. The Office of Management and applications permit consideration of standards for the first decade of the next Budget’s (OMB’s) predecessor, the new approaches to defining areas; and century. Bureau of the Budget, led the effort to (3) whether there is a practicable way to develop what were then called capture a more complete range of U.S. DATES: To ensure consideration during settlement and activity patterns than the the final decision making process, ‘‘standard metropolitan areas’’ in time for their use in 1950 census reports. current MA standards capture. written comments must be received no Specific, major issues addressed by later than December 20, 1999. Since then, vast numbers of directly comparable MA data products have MASRP have included: • Whether the Federal Government ADDRESSES: Written comments on the been made available to government, should define metropolitan and recommendations should be submitted business, scholars, citizens’ nonmetropolitan statistical areas; to James D. Fitzsimmons, U.S. Bureau of organizations, and others interested in • The geographic units—‘‘building the Census, IPC-Population Division, studying various aspects of MAs. blocks’’—that should be used in Washington, DC 20233–8860; fax (301) The general concept of an MA is that 457–3034. defining the statistical areas; of an area containing a large population • The criteria that should be used to Electronic Data Availability: This nucleus and adjacent communities that aggregate the building blocks in defining Federal Register Notice is available have a high degree of integration with the statistical areas; electronically from the OMB home page: that nucleus. This general concept has • Whether the statistical areas should < VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.096 pfrm03 PsN: 20OCN2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56629 Committee (MASRC) and charged it metropolitan and nonmetropolitan commenters, however, expressed with the tasks of examining the current areas. The December Notice also called concern that commuting data do not MA standards and providing for comments on the following describe all patterns of activity and, recommendations for possible changes questions: (1) What geographic unit therefore, cannot portray all social and to those standards. Agencies should be used as the ‘‘building block’’ economic linkages between entities. represented on MASRC include the for defining areas for statistical With respect to specific commuting Census Bureau (Chair), Bureau of purposes? (2) What criteria should be criteria to be used in qualifying entities Economic Analysis, Bureau of Labor used to aggregate the geographic for inclusion within metropolitan and Statistics, Bureau of Transportation building blocks into statistical areas? (3) nonmetropolitan areas, one commenter Statistics, Economic Research Service What criteria should be used to define suggested a 30 to 35 percent minimum (Agriculture), National Center for Health a set of statistical areas of different types commuting requirement; another Statistics, and ex officio, OMB. The that together classify all the territory of suggested a 25 percent minimum Census Bureau has provided research the Nation? commuting requirement. No other support to MASRC. MASRC’s report A total of 40 comments were received comments were received regarding summarizes the research and review from individuals (ten), municipalities specific commuting thresholds. process that led to the committee’s (eight), State government agencies Central city identification received recommendations (see Appendix, (seven), nongovernmental organizations little attention. Of the four commenters Section C). (seven), Federal agencies (four), who did respond on this issue, three This Notice is the second of three chambers of commerce (two), and favored continued identification of Notices related to the review of the regional government organizations central cities; one favored discontinuing standards. The first was published by (two). this practice. Four comments were OMB in the Federal Register of Among commenters, the largest received in response to the related issue December 21, 1998. A summary of number (ten) preferred the commuting- of identifying urban, suburban, rural, comments received in response to that based, county-level approach (presented and other settlement categories as part Notice is provided in Section 3 below. in Part IV, Section A of the December of the standards. Three commenters OMB expects to publish the final Notice). Four commenters preferred the favored identification of such categories standards in the third Notice prior to commuting-based, census tract-level as part of the standards; one commented census day (April 1) 2000. approach (Part IV, Section B). The negatively, noting that identification of Ongoing research projects, although directional commuting, census tract- these categories is a separate issue that not intended to provide additional level approach (Part IV, Section C) was should be addressed in a classification information for formulating final the choice of one commenter, and two system that focuses on settlement form standards for the next decade, will stated a preference for the comparative (i.e., what can be seen on the land) and further understanding of patterns of density, county-level approach (Part IV, not functional ties (i.e., interactions of settlement and activity of the Nation’s Section D). Two commenters preferred people and activities among places). population and provide information for adoption of both the commuting-based, Fifteen comments were received on use in future reviews of the standards. county-level and the commuting-based, whether and how a statistical area Research will continue into aspects of census tract-level approaches. Twenty- classification should account for all all of the alternative approaches (and one commenters did not indicate a territory in the United States. Twelve variations thereof) presented in the preference for any of the four alternative favored development of a classification December 1998 Federal Register Notice. approaches presented. Comment letters that accounted for all of the territory of For example, Census Bureau staff are generally emphasized specific issues the Nation, but they varied considerably investigating the feasibility of rather than overall approaches for on how to do so. Three commenters developing a census tract-level classifying areas. endorsed defining MAs only. classification to identify settlement and The issue of what geographic entity to The role of local opinion in defining land use categories along an urban-rural use as a building block for defining metropolitan and nonmetropolitan areas continuum. The Census Bureau also has metropolitan and nonmetropolitan areas drew two comments: one favored a a project to conduct additional research drew the largest number of comments. limited use of local opinion, such as in on the comparative density approach Thirty-five of the 40 commenters naming areas; the other noted that local outlined in the December 1998 Federal specifically indicated building block opinion should be solicited in a timely Register Notice and is continuing preferences. Of these, 25 preferred manner. research on potential uses of directional continued use of counties, five preferred Although some commenters did offer commuting statistics in defining use of census tracts, and two preferred alternative proposals for geographic statistical areas. Outcomes of this work use of minor civil divisions (MCDs). entities to be used as building blocks, may be featured in pilot projects of the Three commenters indicated a means of measuring the extent of areas, Census Bureau or other agencies during preference for dual classifications—one and ways of identifying settlement the next decade. using counties as building blocks and categories within the classification the other using census tracts. Three system, no additional proposals for 3. Summary of Comments Received in commenters favored continued use of alternative approaches to defining Response to the Federal Register Notice MCDs as building blocks for statistical metropolitan and nonmetropolitan areas of December 21, 1998 areas in New England. were received. The December 21, 1998 Federal Of the 40 commenters, 24 remarked Register Notice (63 FR 70526–70561) on the kind of measure to be used in 4. Overview of MASRC Report called for comments on: (1) the aggregating entities to define This Federal Register Notice makes suitability of the current standards, (2) metropolitan and nonmetropolitan available for comment MASRC’s the principles that should govern any areas. Twenty-one favored use of recommendations to OMB for how the proposed revisions to the standards, (3) commuting (journey-to-work) data as current MA standards should be reactions to the four approaches the primary means of determining the revised. These recommendations are outlined in the Notice, and (4) proposals geographic extent of metropolitan and presented in their entirety in MASRC’s for alternative ways to define nonmetropolitan areas. A few ‘‘Report to the Office of Management VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.097 pfrm03 PsN: 20OCN2 56630 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices and Budget on the Review of the considering whether outlying counties Our recommendations for a Core- Metropolitan Area Standards and qualify for inclusion. This change Based Statistical Area Classification are Recommendations for Standards for reduces the conceptual and operational the product of a ten-year review process. Defining Core-Based Statistical Areas for complexity of the standards but may During that time, a research program the First Decade of the 21st Century,’’ affect the geographic extent of some was designed and implemented to provided in the Appendix to this existing areas defined according to the determine whether the current (1990) Notice. Section G of the Appendix current MA standards. standards were in need of revision as presents for public comment the well as to identify and evaluate 5. Issues for Comment specific standards recommended by alternative approaches to defining MASRC for adoption by OMB. This With this Notice, OMB requests metropolitan and nonmetropolitan overview summarizes MASRC’s comments on the recommendations it areas. Section A of our report discusses recommendations to OMB, with has received from MASRC concerning the formation of the Metropolitan Area particular attention to recommendations revisions to the current standards for Standards Review Committee (MASRC) that represent noteworthy conclusions defining MAs. The standards and outlines the tasks assigned by OMB. and changes to the current standards or recommended to OMB for adoption are Section B reports on the means by pertain to issues of special importance presented in Section G of MASRC’s which the public participated in the to users and providers of data for report. The complete report is included review process and provided comments. metropolitan and nonmetropolitan in the Appendix to this Notice to Sections C and D, respectively, report areas. provide information on the review on research efforts that have been MASRC has recommended a Core- process and a context for MASRC’s conducted as part of this review and the Based Statistical Area (CBSA) recommendations. In particular, Section principles that have guided the Classification to replace the current MA E of the report provides a discussion of development of recommendations. classification. The cores (i.e., the the recommendations on the various Section E outlines the issues that have densely settled concentrations of issues considered by MASRC. Section F been under review and reports on population) for this classification would presents a comparison of the current decisions reached by MASRC, based on be Census Bureau-defined urbanized our evaluation of research results and areas and smaller densely settled MA standards with the recommended CBSA Classification. OMB would consideration of related public ‘‘settlement clusters’’ identified in comments. Section F provides a Census 2000. CBSAs would be defined appreciate receiving views and comments on any aspects of the comparison of the current metropolitan around these cores. This CBSA area standards with the standards Classification has three types of areas recommended standards. John T. Spotila, recommended by MASRC. Section G based on the total population of all presents the specific standards cores in the CBSA: (1) Megapolitan Adminstrator, Office of Information and Regulatory Affairs. recommended by MASRC. Finally, Areas defined around cores of at least Section H provides definitions of key 1,000,000 population; (2) Macropolitan Appendix—Report to the Office of terms used in the report. Areas defined around cores of 50,000 to Management and Budget on the Review We hope that OMB will find this 999,999 population; and (3) of the Metropolitan Area Standards and report with its accompanying Micropolitan Areas defined around Recommendations for Standards for recommendations informative and cores of 10,000 to 49,999 population. Defining Core-Based Statistical Areas helpful in making its decision on what The identification of Micropolitan Areas for the First Decade of the 21st Century changes, if any, to adopt in the extends concepts underlying the core- standards for defining geographic areas based approach to smaller population Prepared by the Metropolitan Area Standards Review Committee for collecting, tabulating, and centers previously included in a publishing Federal statistics. ‘‘nonmetropolitan residual.’’ [Transmittal Memorandum] MASRC has recommended use of September 20, 1999 Attachment counties and equivalent entities as the Memorandum for Katherine K. Wallman, Report to the Office of Management and building blocks for statistical areas Chief Statistician, Office of Management Budget on the Review of the throughout the United States and Puerto and Budget From: Metropolitan Area Standards Review Metropolitan Area Standards and Rico, including the use of counties as Committee Recommendations for Standards for the primary building blocks for Subject: Transmittal of Report and Defining Core-Based Statistical Areas statistical areas in New England. This Recommendations for Standards for for the First Decade of the 21st Century recommendation does not preclude the Defining Core-Based Statistical Areas potential adoption of a sub-county A. Formation of the Metropolitan Area entity as the building block for We are pleased to transmit to you the Standards Review Committee statistical areas in the future. MASRC attached report presenting this In fall 1998, the Office of Management also has recommended that MCDs be committee’s recommendations for and Budget (OMB) reconstituted the used as building blocks for an modifying the Office of Management Federal Executive Committee on alternative set of statistical areas for the and Budget’s (OMB’s) standards for Metropolitan Areas as the Metropolitan New England States only. defining metropolitan areas. The Area Standards Review Committee MASRC has recommended adoption recommendations are outlined and (MASRC). Agencies represented on of a single commuting threshold of 25 discussed in Section E of the report. MASRC include the Census Bureau percent to establish qualifying linkages They represent our best technical and (Chair), Bureau of Economic Analysis, between outlying counties and counties professional advice for how the Bureau of Labor Statistics, Bureau of containing CBSA cores. In addition, standards could better account for and Transportation Statistics, Economic MASRC recommends eliminating the describe changes in settlement and Research Service (Agriculture), National use of measures of settlement structure, activity patterns throughout the United Center for Health Statistics, and ex such as population density and percent States and Puerto Rico yet still meet the officio, OMB. of population that is urban, in data reporting needs and requirements OMB charged MASRC with the tasks conjunction with commuting when of Federal agencies and the public. of examining the current (1990) VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.098 pfrm03 PsN: 20OCN2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56631 metropolitan area (MA) standards and C. Review Process State, and local government agencies; alternative approaches to statistical the private sector; universities; and 1. Metropolitan Area Standards Review definitions of metropolitan and citizens’ organizations. Project nonmetropolitan areas and providing The Census Bureau has conducted recommendations to OMB for possible The MA standards are reviewed and, research into a variety of issues related changes to the current standards. if warranted, revised in the years to metropolitan and nonmetropolitan Completion of this charge required: (1) preceding each decennial census to area concepts and criteria as part of Identifying current statistical uses of ensure their continued usefulness and MASRP. The first phase of this research MAs and assessing whether and how relevance. The current review of the MA culminated in publication of the four those uses might better be met; (2) standards—the Metropolitan Area alternative approaches to defining reviewing the conceptual underpinnings Standards Review Project (MASRP)—is metropolitan and nonmetropolitan areas of the current MA standards and their the sixth such review. This review has presented for public comment in the continued usefulness; (3) assessing the been especially thorough, reflecting as a Federal Register Notice of December 21, extent to which any changes in the first priority users’ concerns with the 1998. The second phase of the research standards should reflect changes in conceptual and operational complexity extended the earlier work, but with a computing technology on how MAs are of the standards that have evolved over particular focus on providing or can be defined and maintained; (4) the decades. Other key concerns of information directly to MASRC and developing and empirically testing MASRP have been: (1) Whether answering specific questions raised potential changes in the standards; and modifications to the standards over the during MASRC’s review of the (5) ensuring ample opportunity for years have permitted them to stay standards. widespread public participation in the abreast of changes in population In addition to research conducted or review process. distribution and activity patterns; (2) contracted by the Census Bureau, other B. Public Participation and Comments whether advances in computer researchers both inside and outside the applications permit consideration of Federal Government have investigated Public participation and comments, new approaches to defining areas; and alternative methods for defining obtained through a variety of formats, (3) whether there is a practicable way to metropolitan and nonmetropolitan areas have provided important guideposts for capture a more complete range of U.S. the review of the MA standards. during the past decade. Researchers in settlement and activity patterns than the the Department of Agriculture’s Beginning early in the decade, OMB and current MA standards capture. Census Bureau staff received comments Economic Research Service (ERS) Specific, major issues addressed by investigated the feasibility of using and suggestions from Federal, State, and MASRP have included: local officials; representatives of the • census tracts as building blocks for MAs Whether the Federal Government in conjunction with current (1990) MA private sector; researchers; and other should define metropolitan and data users through meetings, responses standards. Researchers at the University nonmetropolitan statistical areas; of Washington, in a project jointly to presentations at academic and • The geographic units—‘‘building funded by the Department of Health and professional conferences, and at a blocks’’—that should be used in Human Services’ Office of Rural Health Congressional hearing held in July 1997. defining the statistical areas; OMB requested formal public • The criteria that should be used to Policy and ERS, have contributed comment on MA concepts and aggregate the building blocks in defining further to development of an alternative standards through the Federal Register the statistical areas; method of defining metropolitan and Notice ‘‘Alternative Approaches to • Whether the statistical areas should nonmetropolitan areas using census Defining Metropolitan and account for all territory of the Nation; tracts as building blocks. Researchers at Nonmetropolitan Areas,’’ that was • Whether there should be the University of Minnesota continued published on December 21, 1998. hierarchies or multiple sets of statistical investigation of the comparative density During the public comment period for areas in the classification; approach first proposed early in this the Notice, a seminar and open forum • The kinds of areas that should decade and presented at the 1995 were held in Alexandria, Virginia, on receive official recognition in the conference. January 21 and 22, 1999. Comments classification; 2. 1995 Conference on New Approaches • received in response to the Notice and Whether the classification should to Defining Metropolitan and at the seminar and open forum were reflect statistical rules only or allow a Nonmetropolitan Areas considered by MASRC during its role for local opinion; and development of recommendations. • How frequently statistical areas Discussion at the 1995 conference Between January and August 1999, should be updated. considered widely ranging views, but Census Bureau staff also participated in, As in previous decades, the Census there was general agreement on the and offered presentations at, some 20 Bureau has worked closely with OMB in following issues: meetings and conferences around the support of the MA program. In 1990, the • The Federal Government should country attended by Federal statistical Census Bureau commissioned four define standard areas at the program participants, State and local studies by scholars to sketch out and metropolitan and nonmetropolitan area officials, and experts in academia and evaluate alternative approaches to level. private survey and research firms. Many defining metropolitan and • Because of data availability and individuals also have contacted OMB nonmetropolitan areas. The reports familiarity, areas should be defined and Census Bureau staff to discuss produced through these studies were using the county as the fundamental issues pertaining to this review. published in a Census Bureau working unit. To foster greater precision and to Although comments received in these paper, which later served as the focus of meet special-purpose needs, areas based ways were not part of the official set of discussion at an open conference in on sub-county entities also should be written responses to the December 1998 November 1995 that was hosted by the defined. There were suggestions that Federal Register Notice, MASRC was Council of Professional Associations on multiple sets of areas using different apprised of and considered these less Federal Statistics (COPAFS) and units should be provided, along with formal comments in its deliberations. attended by representatives of Federal, documentation on appropriate uses. VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.099 pfrm03 PsN: 20OCN2 56632 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices • Statistical areas defined following single classification system (as opposed E. Issues Under Review Census 2000 should cover the entire to multiple systems, as suggested at the MASRC’s review and its territory of the country and should 1995 conference) to avoid confusion recommendations to OMB have drawn better account for the full range of among users and to ensure that the upon previous research conducted by settlement patterns than do the current classification is useful to as many data the Census Bureau, other agencies, and MAs and their nonmetropolitan users as possible. individuals. The review also has ‘‘residual.’’ benefited from discussions at the • Areas should be defined using a The relative merits of using counties November 1995 conference and the consistent set of rules for the entire versus census tracts as the building January 1999 seminar/open forum, and country. blocks for statistical areas were key to • Familiar components of settlement, the discussion. Some Federal agencies, from comments received in response to such as major population and researchers, and others noted growing OMB’s December 21, 1998 Federal employment centers as represented by interest in identifying metropolitan and Register Notice. This section presents current MA definitions, should be in nonmetropolitan territory and MASRC’s recommendations to OMB for evidence in the new system. population with greater geographic changing the MA standards. It also • Commuting (journey-to-work) data resolution than can be achieved with presents a discussion of the major issues from the Census Bureau should the current, largely county-based MAs. considered during the review. continue as the principal measure for Many commenters supported the Summary of Recommendations determining the extent of areas. Other continued use of counties when data—including electronic media and defining metropolitan and MASRC recommends adoption of a newspaper market penetration data, nonmetropolitan areas because of the Core-Based Statistical Area (CBSA) local traffic study data, and wholesale range and quality of data available for Classification that includes Megapolitan, Macropolitan, and distribution data’are available and counties and the relative ease in Micropolitan Areas, with each area usable for specific purposes. Population comparing county-level data over time. and housing unit density also were containing one or more population cores In addition, many participants agreed of at least 10,000 persons (see Section viewed as potential measures for some that commuting, despite its inability to purposes, and employment density E.1). Census Bureau-defined urbanized account for all patterns of activity, received mention. areas (UAs) and a proposed new A detailed summary of the conference remains the preferred means of geographic entity for Census 2000— appears as Appendix C in the December measuring integration of areas and Census Bureau-defined settlement 21, 1998 Federal Register Notice; the should continue to be the measure used clusters (SCs)—are these cores. UAs are summary also is available from the to determine the geographic extent of continuously built-up areas comprising Census Bureau at (301) 457–2419. entities. Although other measures have a central place (or places) and the been used in the past or considered in densely settled surrounding territory 3. January 1999 Seminar and Open MASRP, most seminar/open forum that together have a population of at Forum: Metropolitan and participants agreed that Census Bureau least 50,000 and, generally, an overall Nonmetropolitan Areas for a New commuting information currently population density of at least 1,000 Decade provides the most reliable and persons per square mile. SCs will During the comment period following exhaustive source of data for this extend the UA concept to smaller publication of the December 1998 purpose. Interest was expressed in the concentrations of at least 10,000 Federal Register Notice, COPAFS use of directional commuting as a population. Territory outside of hosted a seminar and open forum means of measuring the integration of Megapolitan, Macropolitan, and focusing on the four alternative entities, but some participants suggested Micropolitan Areas should be termed approaches to defining metropolitan that it was too complicated for use in ‘‘Outside CBSAs.’’ and nonmetropolitan areas presented in defining metropolitan and MASRC recommends using counties that Notice. The two-day seminar/open nonmetropolitan areas. and equivalent entities as building blocks of CBSAs throughout the United forum provided a venue for A complete summary of the seminar/ States and Puerto Rico (Section E.2). disseminating information and receiving open forum is available from the Census Minor civil divisions (MCDs) should be comments related to the review of the Bureau at (301) 457–2419. standards. used as building blocks for an On the first day, one session was D. Principles Guiding the Review and alternative set of areas in New England devoted to each of the four approaches. Development of Recommendations only. Census Bureau staff presented an Those counties containing the cores, overview of the approach; outside Several guiding principles framed MASRC recommends, should become experts then described benefits and discussion of the issues under review the central counties of CBSAs (Section potential problems. Discussion periods and formulation of specific E.3). MASRC also recommends that only provided opportunities for all attendees recommendations. MASRC sought to commuting data should be used to to offer comments and raise questions. develop a classification that would aggregate counties beyond central On the second day, prepared statements capture and portray effectively the counties—the outlying counties—to were provided by several individuals, distribution of population and economic form CBSAs. A single minimum and participants engaged in a general activity across the United States and commuting threshold of 25 percent discussion of the standards review. Puerto Rico. This classification must should be used to qualify a county for There was agreement at the seminar/ meet the needs of both producers and inclusion as outlying in a particular open forum that MAs are widely users of data. Also, the criteria used to CBSA (Section E.4). recognized and used (although the define the areas must be applicable Mergers of adjacent CBSAs to form a specifics of MA standards are less clear nationwide using publicly available single CBSA should take place when to many individuals), and that OMB data. Finally, MASRC sought to prepare commuting data indicate that strong ties should continue to define MAs. Some criteria that were simpler than those in exist between the two areas’ central participants expressed a preference for a the current MA standards. counties (Section E.6). Combinations of VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.100 pfrm03 PsN: 20OCN2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56633 adjacent CBSAs should take place when MASRC addressed several, sometimes Some members of MASRC expressed there are weaker but still important incompatible, concerns as it developed the view that the 50,000-person commuting ties between entire CBSAs. terminology and size levels: threshold used in the current MA The CBSAs that are combined should (1) Eliminating the current standards held greater significance retain separate identities in addition to metropolitan/nonmetropolitan when first adopted by the Census being recognized as parts of Combined dichotomy and replacing it with a range Bureau for defining ‘‘metropolitan Areas (Section E.7). of categories that more meaningfully districts’’ in 1930 than it does now. The represent the settlement and activity MASRC recommends identifying the national population has more than patterns of the Nation; city with the largest population in each doubled since 1930, and these members (2) Introducing specific terms for reasoned that the resulting increase in CBSA, as well as any additional cities areas containing cores of 1,000,000 or with large population or employment the number of places of 50,000 more persons and cores of 250,000 to population or more has reduced the totals, as principal cities (Section E.8). 999,999 persons, respectively; The title of each CBSA should include meaning of this threshold in identifying (3) Evaluating advantages and areas of metropolitan character. Changes the name of the largest principal city. If disadvantages of retaining the current in economic structure also have made there are multiple principal cities in a MA standards’ core population places of this size less self-reliant than CBSA, the names of the second largest threshold of 50,000; they were in the past. On the other and third largest principal cities should (4) Assessing advantages and hand, MASRC members observed that be included in the title, in order of disadvantages of retaining the current retaining the 50,000 person threshold descending population size (Section MA standards’ metropolitan/ would offer maximum continuity with E.9). nonmetropolitan terminology; and current and previous definitions of These recommendations and others (5) Maintaining simplicity. MAs. are described in greater detail below. With regard to the first two Some MASRC members favored considerations, there was broad retaining metropolitan/nonmetropolitan Notes on Data and Maps agreement within MASRC that the terminology for use with CBSAs, 1,000,000-person threshold was a In carrying out its work, MASRC used identifying Megapolitan and significant delimiter between large 1990 census data to model the possible Macropolitan Areas as metropolitan and urban areas and other areas. Under the outcomes of its recommendations for identifying Micropolitan Areas and proposed standards, 35 areas, each geographic area definitions. The four counties Outside CBSAs as containing one or more cores that maps accompanying this section were nonmetropolitan. The reasoning behind together have 1990 decennial census developed using 1990 census data and this position was that identification of populations of 1,000,000 or more, the recommended standards. Because metropolitan and nonmetropolitan areas would account for about 45 percent of SCs are proposed new geographic areas within the CBSA Classification would the 1990 U.S. population. provide continuity with areas defined for presentation of Census 2000 data, Broad agreement also existed in favor incorporated places and census under the current standards and might of establishing a micropolitan category be of benefit to some producers and designated places (CDPs) of 10,000 to as a means of distinguishing between (1) 49,999 population were used for users of data. Members favoring this areas integrated with smaller population position noted that the top two levels, research purposes. The maps are for centers and (2) territory not integrated illustrative purposes only and are not when combined, approximate the MAs with any particular population center. defined under the current standards and intended to portray the extent of areas Defining Micropolitan Areas represents that would be defined using Census that the lower two levels, when a response to comments that a new combined, approximate areas currently 2000 data and the recommended classification should cover a broader standards. referred to as nonmetropolitan. Others range of population and economic argued that continued identification of Detailed Recommendations activity patterns than the current MA areas as metropolitan and standards do. MASRC also considered nonmetropolitan might reduce the value 1. Recommendations Concerning Levels various combinations of population of Statistical Areas Recognized Within of the levels provided by the CBSA distribution and economic activity classification, in elaborating on the the Core-Based Statistical Area pattern measures to classify counties not Classification current metropolitan/nonmetropolitan included in a CBSA, but none offered a dichotomy. Members also suggested that MASRC recommends a Core-Based satisfactory method of meaningfully some data users might find value in Statistical Area (CBSA) Classification to accounting for these counties in the new analyzing the distribution of population replace the current MA classification. classification. and economic activities across MASRC recommends the following The large core population range Megapolitan, Macropolitan, and terms and levels, based on the total (50,000 to 999,999) of the macropolitan Micropolitan Areas as a group and that population in the cores of CBSAs (and level could limit its utility for analytical separation of these levels by a not based on the total population of a and statistical purposes. An option metropolitan/nonmetropolitan CBSA): would be to split this level into two dichotomy would discourage such uses. categories, one identifying areas with 2. Recommendations Concerning the Core-Based Statistical cores that together have populations of Areas Population in Cores 50,000 to 249,999 (‘‘mesopolitan areas’’) Geographic Unit To Be Used as the and the other identifying areas with Building Block for Defining CBSAs Megapolitan Areas .... 1,000,000 and above cores that together have populations of MASRC recommends using counties Macropolitan Areas ... 50,000 to 999,999 250,000 to 999,999 (‘‘macropolitan and equivalent entities as building Micropolitan Areas .... 10,000 to 49,999 areas’’). Although there was support for blocks for CBSAs throughout the United this option, there also was concern that States and Puerto Rico. Territory not included in CBSAs the use of five levels (including Using counties and equivalent entities should be designated as Outside Core- ‘‘Outside CBSAs’’) might make the throughout the United States and Puerto Based Statistical Areas. system too complex. Rico continues current practice, except VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.101 pfrm03 PsN: 20OCN2 56634 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices in New England, where MCD-based In recognition of the importance of priorities pointed to the use of data areas currently constitute the official MCDs in New England, the wide gathered by Federal agencies and more MAs. availability of data for them, and their particularly to commuting data from the The choice of a geographic unit to long-term use in the MA program, Census Bureau. Commuting to work is serve as the building block can affect the MASRC recommends using MCDs as an easily understood measure that geographic extent of a statistical area building blocks for an alternative set of reflects the social and economic and its relevance or usefulness in areas for the six New England states. integration between geographic areas. describing economic and demographic The recommendation not to use patterns. The choice also has 3. Recommendations Concerning Cores measures of settlement structure implications for the ability of Federal of CBSAs and Central Counties represents a change from the current agencies to provide data for statistical MASRC recommends using Census MA standards. In those standards, areas and their components. The Bureau-defined UAs of 50,000 or more varying levels of population density, December 1998 Federal Register Notice population and Census Bureau-defined percentage of total population that is presented advantages and disadvantages SCs of at least 10,000 population as urban, presence of UA population, and of five potential building blocks. Each of cores of CBSAs. MASRC also population growth rate are used in these units was evaluated in terms of its recommends identifying ‘‘central combination with varying levels of consistency in delineation across the counties’’ based on the locations of the commuting to determine qualification of Nation, data availability, boundary cores. outlying counties for inclusion in an stability, and familiarity. The recommended use of UAs as MA. MASRC concluded that as changes Counties and their equivalents are cores is consistent with current practice. in settlement and commuting patterns major and familiar geographic units of The use of SCs proposed for Census as well as changes in communications government, performing a wide range of 2000 reflects MASRC’s recommendation technologies have occurred, settlement functions, and a wide range of to extend the classification to areas structure no longer is as reliable an statistically reliable data is available for based on cores of 10,000 to 49,999 indicator of metropolitan character as them. Far more Federal statistical population. This change would permit a was previously the case. programs produce data at the county fuller accounting for the distribution of MASRC recommends qualifying an level than at any sub-county level. In population and economic activity across outlying county on the basis of the addition, the use of counties eases the territory of the Nation than is percentage of employed residents of the comparison with current and past MA provided by the current MA standards. county who work in the CBSA’s central definitions. MASRC decided that the Following from this recommendation, county or counties, or on the basis of the well-known disadvantages of counties the presence of a core (UA or SC) of at percentage of employment in the as building blocks for statistical areas— least 10,000 population should be potential outlying county accounted for the large geographic size of some required for defining a CBSA. by workers who reside in the CBSA’s counties and the lack of geographic The locations of UAs and SCs should central county or counties. MASRC precision that follows from their use— provide the basis for identifying central recommends using a 25 percent were outweighed by the advantages counties of CBSAs—the counties to and minimum threshold for both measures. offered by counties. from which ties are measured in MASRC observed that the percentage MASRC recommends using MCDs as determining the extent of areas. MASRC of a county’s employed residents who building blocks for an alternative set of recommends identifying central commute to the central county or areas identified in New England only. counties as those counties: counties is an unambiguous, clear At a time when development and (a) That have at least 50 percent of measure of whether a potential outlying maintenance of nationwide data bases their population in UAs or SCs or both; county should qualify for inclusion. The have long since become routine, use of or percentage of employment in the consistent geographic building blocks in (b) That have within their boundaries potential outlying county accounted for all parts of the country offers improved at least 50 percent of the population of by workers who reside in the central usability to producers and users of data. a UA or SC that crosses county county or counties is a similarly Some statistical programs regard the boundaries. straightforward measure of ties. current MA program’s use of MCDs— Including both criteria addresses both cities and towns—in New England as a 4. Recommendations Concerning the conventional and the less common hindrance; others avoid difficulties Criteria for Inclusion of Outlying reverse commuting flows. posed by the MCD-based areas by using Counties The percentage of workers in the the current alternative county-based MASRC recommends using United States who commute to places of areas for New England, known as the commuting data as the basis for work outside their counties of residence New England County Metropolitan aggregating counties to form CBSAs (i.e., has increased from approximately 15 Areas. Demographic and economic data to qualify ‘‘outlying counties’’). MASRC percent in 1960 (when nationwide for MCDs in New England, however, are recommends not using measures of commuting data first became available more plentiful than for sub-county settlement structure, such as population from the decennial census) to nearly 25 entities in the rest of the Nation. Cities density, to qualify outlying counties for percent in 1990. In addition, the 25 and towns are the primary units of local inclusion in CBSAs. percent threshold stood out as a government in New England (counties Three priorities guided the committee noticeable divide when reviewing 1990 in Connecticut and Rhode Island, and in reaching these recommendations. census data concerning the percentage some counties in Massachusetts, no First, the data used to measure of workers who commute outside their longer possess legal or functional connections among counties should counties of residence. MASRC status). In reaching its recommendation describe those connections in a concluded that the pattern in to extend the use of counties as building straightforward and intuitive manner. commuting rates and increases in blocks for the primary set of statistical Second, data for the measure should be intercounty commuting over the past 40 areas in New England, MASRC attached collected using consistent procedures years warranted a comparable increase priority to the desire for use of a single, nationwide. Third, the data should be from the 15 percent minimum consistent geographic unit nationwide. readily available to the public. These commuting threshold currently used to VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.102 pfrm03 PsN: 20OCN2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56635 qualify counties—under specified individual areas should not retain identification of central cities—required circumstances—for inclusion in MAs. separate identities within the merged by the current MA standards for MASRC recommends that counties entity; rather, the merged entity should defining areas—is no longer necessary. qualify for inclusion in a CBSA as be recognized as a single CBSA. Also, while still important, central cities outlying counties on the basis of Because a merger recognizes ties have become less dominant in the local commuting ties with the central county similar to the ties between an outlying context over time. Nevertheless, MASRC (or counties) of that one area only. county and the central counties of a recognizes that specific cities within MASRC concluded that outlying CBSA, MASRC recommends that the individual CBSAs are important for counties should not qualify based on minimum commuting threshold analytical purposes as centers of total commuting to central counties of similarly be set at 25 percent, measured employment, trade, entertainment, and multiple CBSAs because that would with respect to all central counties of other social and economic activities. result in inconsistent grounds for one CBSA relative to all central counties MASRC, therefore, includes in the qualification in an individual area. of the other. recommended standards criteria for Throughout its history, the purpose of 7. Recommendation Concerning identifying principal cities and using the MA program has been to identify Combining Adjacent CBSAs the principal cities for titling areas. individual statistical areas, each containing a core plus any surrounding MASRC recommends ‘‘combining’’ MASRC recommends that the territory integrated with that core as CBSAs when entire adjacent areas are principal city (or cities) of a CBSA measured by commuting ties. MASRC linked through commuting ties. should include: (1) the largest saw no reason to depart from that MASRC recommends that ties incorporated place or census designated approach in defining CBSAs. between adjacent CBSAs that are less place (CDP) in the CBSA; (2) any intense than those captured by mergers additional incorporated place or CDP 5. Recommendation Concerning Use of (see Section E.6), but still significant, be with a population of at least 250,000 or Statistical Rules and the Role of Local recognized by combining those CBSAs. in which 100,000 or more persons work; Opinion Because a combination thus defined and (3) any additional incorporated MASRC recommends limited use of represents a relationship of moderate place or CDP with a population that is local opinion in the definition process. strength between two CBSAs, the areas at least 10,000 and one-third the size of Applying only statistical rules when that combine should retain separate the largest place, and in which defining areas minimizes ambiguity and identities within the larger combined employment meets or exceeds the maximizes the replicability and area. Potential combinations should be number of employed residents. integrity of the process. MASRC evaluated by measuring commuting recommends consideration of local between entire adjacent CBSAs— MASRC recommends using the term opinion only in cases of CBSA commuting of all counties, as a group, ‘‘principal city’’ rather than ‘‘central combinations where adjacent CBSAs within one CBSA relative to all city.’’ The term ‘‘central city’’ has come meet specified requirements (see E.7 counties, as a group, in the adjacent to connote ‘‘inner city’’ and thus below). area. sometimes causes confusion. Local opinion should be obtained MASRC recommends basing 9. Recommendations Concerning Titles through the appropriate congressional combinations on the employment of Core-Based Statistical Areas and delegation. Members of the interchange rate between two CBSAs, Combined Areas congressional delegation should be defined as the sum of the percentage of urged to contact a wide range of groups commuting from the smaller area to the MASRC recommends titling each in their communities, including larger area and the percentage of CBSA using the name of the principal business or other leaders, chambers of employment in the smaller area city with the largest population, as well commerce, planning commissions, and accounted for by workers residing in the as the names of the second- and third- local officials, to solicit comments on larger area. MASRC recommends a largest principal cities, if multiple the specific combination at issue. minimum threshold of 15 for the principal cities are present. MASRC also MASRC also recommends that OMB use employment interchange rate, but recommends titling each Combined the Internet to make available recognizes that this threshold may result Area using the name of the largest information pertaining to the potential in combinations where the measured principal city in each of up to three combination on which local opinion is ties are perceived as minimal by CBSAs that combine, in descending sought. After a decision has been made, residents of the two areas. Therefore, order of CBSA population size. OMB should not request local opinion MASRC recommends combinations of again on the same issue until the next CBSAs, based on an employment Titles provide a means of uniquely redefinition of CBSAs. interchange rate of at least 15 but less identifying individual CBSAs and than 25, only if local opinion in both Combined Areas so that each is 6. Recommendation Concerning areas favors the combination. If the recognizable to a variety of data users. Merging Adjacent CBSAs employment interchange rate equals or As such, the title of a CBSA or MASRC recommends ‘‘merging’’ exceeds 25, combinations should occur Combined Area should contain the adjacent CBSAs to form a single CBSA automatically. name or names of geographic entities when the central county or counties of located within the area that are one area qualify as outlying to the 8. Recommendation Concerning prominent and provide data users with central county or counties of another. Identification of Principal Cities Within a means of easily identifying the general MASRC determined that when the the Core-Based Statistical Area location of the CBSA. Use of the names central county or counties (as a group) Classification of principal cities also provides a link of one CBSA qualify as outlying to the MASRC recommends identifying to the (named) UAs and SCs that form central county or counties (as a group) principal cities in CBSAs. the cores of CBSAs. Finally, the State(s) of another area, the two CBSAs should Because the procedures recommended in which the CBSA or Combined Area be merged. Given the strong ties by MASRC identify UAs and SCs as the is located also should be included in the demonstrated in a merger, the organizing entities for CBSAs, the title. VerDate 12-OCT-99 17:06 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4701 Sfmt 4703 E:\FR\FM\20OCN2.XXX pfrm08 PsN: 20OCN2 56636 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 10. Recommendation Concerning nonmetropolitan not be considered considerable interest among producers Categories Describing Settlement when re-examining all counties using and users of data for MAs. The sources Structure Within the Core-Based the recommended standards. and future availability of data for Statistical Area Classification In this context, ‘‘grandfathering’’ updating areas figured prominently in refers to the continued designation of an MASRC recommends not defining MASRC’s discussions. The availability area even though it does not meet the urban, suburban, rural, exurban, and so of population totals and commuting standards currently in effect. The forth, within the CBSA Classification. data affects the ability to identify new current (1990) MA standards permit statistical areas, move existing areas MASRC recognizes that formal changes in the definitions, or extent, of definitions of categories such as inner between categories, and update the individual MAs through the addition or extent of existing areas. city, inner suburb, outer suburb, deletion of counties on the basis of each exurban, and rural would be of use to decennial census, but the standards do The current standards provide for the the Federal statistical system as well as not permit the disqualification of MAs designation of a new MA on the basis to researchers, analysts, and other users that previously qualified on the basis of of a population estimate or a special of Federal data. Such categories, a Census Bureau population count. To census count for a city. This approach however, are not necessary for the maintain the integrity of the for designating new areas intercensally delineation of statistical areas that classification, MASRC favors the would continue to provide the most describe the functional ties between objective application of the consistent and equitable means of geographic entities. These additional recommended standards rather than qualifying new CBSAs in the future. A categories would more appropriately be continuing to recognize areas that do new CBSA should be designated if a city included in a separate classification that not meet the standards that currently are that is outside any existing CBSA has a focuses exclusively on describing in effect. MASRC recommends that the Census Bureau population estimate of settlement patterns and land uses. current status of a county as either 10,000 or more for two consecutive MASRC recommends continuing metropolitan or nonmetropolitan play years, or a Census Bureau special census research by the Census Bureau and no role in the application of the count of 10,000 or more population. other interested Federal agencies on recommended standards. (Currently, population estimates for sub-county settlement patterns to existing and potential UAs and SCs are describe further the distribution of 12. Recommendations Concerning not produced.) A new CBSA also should population and economic activity Intercensal Update Schedule be designated if a special census results throughout the Nation. MASRC recommends designating new in delineation of an intercensal UA or CBSAs intercensally on the basis of 11. Recommendations Concerning SC of 10,000 or more population. Census Bureau population estimates or ‘‘Grandfathering’’ of Current The composition of all existing special censuses for places. MASRC also Metropolitan Areas CBSAs should be updated in 2008 using recommends updating the extent of commuting data for each county from MASRC recommends that the CBSAs on the basis of commuting data the Census Bureau’s American definitions of current MAs not be from the Census Bureau’s American Community Survey, averaged over five automatically retained Community Survey, available for all years and centered on 2005. This update (‘‘grandfathered’’) in the CBSA counties beginning in 2008. Classification. MASRC also The frequency with which new would affect only counties identified as recommends that the current status of statistical areas are designated and outlying. individual counties as metropolitan or existing areas updated has been of BILLING CODE 3110±01±P VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.104 pfrm03 PsN: 20OCN2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56637 VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00011 Fmt 4701 Sfmt 4725 E:\FR\FM\A20OC3.104 pfrm03 PsN: 20OCN2 56638 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4701 Sfmt 4725 E:\FR\FM\A20OC3.104 pfrm03 PsN: 20OCN2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56639 VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00013 Fmt 4701 Sfmt 4725 E:\FR\FM\A20OC3.104 pfrm03 PsN: 20OCN2 56640 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices BILLING CODE 3110±01±C VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00014 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.104 pfrm03 PsN: 20OCN2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56641 F. Comparison of Current Metropolitan Area Standards with the Recommended Core-Based Statistical Area Standards Current standards Recommended standards Terms and Levels ...... Identification of Metropolitan Areas (MAs) comprising Identification of Core-Based Statistical Areas (CBSAs) Metropolitan Statistical Areas (MSAs), Consolidated comprising Megapolitan Areas, Macropolitan Areas, Metropolitan Statistical Areas (CMSAs), and Primary and Micropolitan Areas. Counties that are not in- Metropolitan Statistical Areas (PMSAs). MSAs and cluded in a Megapolitan, Macropolitan, or PMSAs are identified as level A, B, C, or D areas. Micropolitan Area are classified as Outside CBSAs. MSAs of 1,000,000 or more population can be des- CBSAs are not subdivided into component parts. ignated as CMSAs if local opinion is in favor and component PMSAs can be identified. Building Blocks ...... Counties and equivalent entities throughout U.S. and Counties and equivalent entities throughout U.S. and Puerto Rico, except in New England where cities and Puerto Rico. City-and-town-based alternative pro- towns are used to define MAs. County-based alter- vided for New England States. native provided for New England States. Qualification of Areas ...... City of at least 50,000 population, or Census Bureau- Census Bureau-defined settlement cluster (SC) of at defined urbanized area (UA) of at least 50,000 popu- least 10,000 population or UA of at least 50,000 pop- lation in an MA of at least 100,000 population. ulation. Qualification of Central Any county that includes a central city or at least 50% Any county in which at least 50% of the population is Counties. of the population of a central city that is located in a located in UAs and SCs, or that has within its bound- qualifier UA. Also any county in which at least 50% aries at least 50% of the population of a UA or SC of the population is located in a qualifier UA. that crosses county boundaries. Qualification of Outlying Combination of commuting and measures of settlement At least 25% of the employed residents of the county Counties. structure work in the central county/counties of a CBSA; or at • 50% or more of employed workers commute to the least 25% of the employment in the county is ac- central county/counties of an MSA and: 25 or more counted for by workers residing in the central county/ persons per square mile (ppsm), or at least 10% or counties of the CBSA. 5,000 of the population lives in a qualifier UA; OR A county that qualifies as outlying to two or more • 40% to 50% of employed workers commute to the CBSAs will be included in the area with which it has central county/counties of an MSA and: 35 or more the strongest commuting tie. ppsm, or at least 10% or 5,000 of the population lives in qualifier UA; OR • 25% to 40% of employed workers commute to the central county/counties of an MSA and: 35 ppsm and one of the following: (1) 50 or more ppsm, (2) at least 35% urban population, (3) at least 10% or 5,000 of population lives in qualifier UA; OR • 15% to 25% of employed workers commute to the central county/counties of an MSA and: 50 or more ppsm and two of the following: (1) 60 or more ppsm, (2) at least 35% urban population, (3) population growth rate of at least 20%, (4) at least 10% or 5,000 of population lives in qualifier UA; OR • 15% to 25% of employed workers commute to the central county/counties of an MSA and less than 50 ppsm and two of the following: (1) at least 35% urban population, (2) population growth rate of at least 20%, (3) at least 10% or 5,000 of population lives in qualifier UA. If a county qualifies as outlying to two or more MAs, it is assigned to the area to which commuting is great- est; if the relevant commuting percentages are within 5 points of each other, local opinion is considered. Local Opinion ...... Consulted when: Consulted only when two CBSAs qualify for combina- a county qualifies as outlying to two different MSAs and tion with an employment interchange rate of at least the relevant commuting percentages within 5 points 15 and less than 25. of each other; • a city or town in New England qualifies as outlying to two different MSAs and has relevant commuting per- centages within 5 points of each other; • a city or town in New England qualifies as outlying to an MSA but has greater commuting to a nonmetro- politan city or town and the relevant commuting per- centages are within 5 points of each other; • combining MSAs whose total population is less than 1,000,000; • assigning titles of MSAs, CMSAs, and PMSAs; • designating PMSAs. Merging Statistical Areas ..... If a county qualifies as a central county of one MSA Two adjacent CBSAs will be merged to form one CBSA and as an outlying county on the basis of commuting if the central county/counties (as a group) qualify as to a central county of another MSA, both counties outlying to the central county/counties (as a group) of become central counties of a single MSA. the other CBSA. VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00015 Fmt 4701 Sfmt 4706 E:\FR\FM\A20OC3.105 pfrm03 PsN: 20OCN2 56642 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices Current standards Recommended standards Combining Statistical Areas Two adjacent MSAs are combined as a single MSA if: Two adjacent CBSAs will be combined if the employ- (A) the total population of the combination is at least ment interchange rate between the two areas is at one million and (1) the commuting interchange be- least 25. The employment interchange rate is the tween the two MSAs is equal to at least 15% of the sum of the percentage of employed residents of the employed workers residing in the smaller MSA, or at CBSA with the smaller total population who work in least 10% of the employed workers residing in the the CBSA with the larger population and the percent- smaller MSA and the UA of a central city of one MSA age of employment in the CBSA with the smaller is contiguous with the UA of a central city of the total population that is accounted for by workers re- other MSA, or a central city in one MSA is included siding in the CBSA with the larger total population. in the same UA as a central city in the other MSA; Adjacent CBSAs that have an employment inter- AND (2) at least 60% of the population of each MSA change rate of at least 15 and less than 25 may is urban. (B) the total population of the combination combine if local opinion in both areas favors com- is less than one million and (1) their largest central bination. cities are within 25 miles of one another, or the UAs are contiguous; AND (2) there is definite evidence that the two areas are closely integrated economi- cally and socially; AND (3) local opinion in both areas supports combination. Central Cities ...... Central cities include the largest city in an MSA/CMSA Principal cities include the largest incorporated place or AND each city of at least 250,000 population or at census designated place in a CBSA AND each place least 100,000 workers AND each city of at least of at least 250,000 population or in which at least 25,000 population and at least 75 jobs per 100 work- 100,000 persons work AND each place with a popu- ers and less than 60% out commuting AND each city lation that is at least 10,000 and 1¤3 the size of the of at least 15,000 population that is at least 1¤3 the largest place, and in which employment meets or ex- size of largest central city and meets employment ceeds the number of employed residents. ratio and commuting percentage above AND largest city of 15,000 population or more that meets employ- ment ratio and commuting percentage above and is in a secondary noncontiguous UA AND each city in a secondary noncontiguous UA that is at least 1¤3 the size of largest central city in that UA and has at least 15,000 population and meets employment ratio and commuting percentage above. Titles ...... Names of up to three central cities in descending order Names of up to three principal cities in descending of population size. Local opinion considered under order of population size. specified conditions. Grandfathering ...... An MSA designated on the basis of census data ac- Areas that do not meet the minimum standards for des- cording to standards in effect at the time of designa- ignation do not qualify. tion will not be disqualified on the basis of lacking a city of at least 50,000 population or a UA of at least 50,000 or a total population of at least 100,000. Intercensal Updating ...... A new MA can be designated intercensally if a city has A new CBSA can be designated if a city has a Census a Census Bureau population estimate or special cen- Bureau population estimate of 10,000 or more for two sus count of at least 50,000 or if a county containing consecutive years, or a Census Bureau special cen- a UA has a Census Bureau population estimate or sus count of 10,000 or more. The geographic extent special census count of at least 100,000. Outlying of each CBSA will be re-examined in 2008 using counties are added to existing MSAs intercensally commuting data from the Census Bureau's American only when (1) a central city located in a qualifier UA Community Survey. extends into a county not included in the MSA and the population of that portion of the city in the county is at least 2,500 according to a Census Bureau popu- lation count or (2) an intercensally designated MSA qualifies to combine with an existing MSA. New cen- tral cities can be designated intercensally on the basis of a special census count. G. Recommended Standards for 1. Requirements for Qualification of (b) That have within their boundaries Defining Core-Based Statistical Areas Core-Based Statistical Areas at least 50 percent of the population of for the First Decade of the 21st Century Each CBSA must include a Census a UA or SC that crosses county boundaries. A Core-Based Statistical Area (CBSA) Bureau-defined urbanized area (UA) of at least 50,000 population or a Census A central county of one CBSA may is a geographic entity consisting of the not be the central county of any other county or counties containing one or Bureau-defined settlement cluster (SC) of at least 10,000 population. CBSA, but a CBSA may have multiple more cores of at least 10,000 population central counties. each, plus adjacent counties having a 2. Central Counties 3. Outlying Counties high degree of social and economic The central county or counties of a integration with the core(s) as measured CBSA are those counties: A county is an outlying county of a by commuting ties. (a) That have at least 50 percent of CBSA if: their population in UAs or SCs or both, (a) At least 25 percent of the or employed residents of the county work VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00016 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.105 pfrm03 PsN: 20OCN2 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56643 in the central county or counties of the largest Census 2000 population. If there The definitions of all existing CBSAs CBSA; or are multiple principal cities, the names will be reviewed in 2008 using (b) At least 25 percent of the of the second-largest and third-largest commuting data from the Census employment in the county is accounted principal cities will be included in the Bureau’s American Community Survey. for by workers who reside in the central title in descending order of population. The central counties of CBSAs county or counties of the CBSA. The title also will include the name identified on the basis of a Census 2000 A county may not be included in of the State in which the CBSA is population count, population estimates, more than one CBSA. If a county located. If the CBSA extends into or a special census count will constitute qualifies as a central county in one multiple States, the State names will be the central counties for purposes of the CBSA and as outlying in another, it will included in the title in descending order 2008 CBSA definition review. be included in the CBSA in which it is of population size within the CBSA. a central county. A county that qualifies 11. General Procedures as outlying to multiple CBSAs will be 8. Identification of Combined Areas Local Opinion. Local opinion is the included in the CBSA with which it has Any two adjacent CBSAs will be reflection of the views of the public and the strongest commuting tie, as combined if the employment is obtained through the appropriate measured by either (a) or (b) above. The interchange rate between the two areas congressional delegations. Under the counties included in a CBSA must be is at least 25. The employment CBSA standards, local opinion is sought contiguous; if a county is not contiguous interchange rate between two areas is only when two adjacent CBSAs qualify to other counties in the CBSA, it will defined as the sum of the percentage of for combination based on an not be included in the CBSA. employed residents of the area with the employment interchange rate of at least smaller total population who work in 15 and less than 25 (see Section 8). The 4. Merging of Adjacent Core-Based two CBSAs will be combined only if Statistical Areas the area with the larger total population and the percentage of employment in there is evidence that local opinion in Two adjacent CBSAs will be merged the area with the smaller total both areas favors the combination. After to form one CBSA if the central county population that is accounted for by a decision has been made regarding the or counties (as a group) of one CBSA workers residing in the area with the combination of CBSAs, the Office of qualify as outlying to the central county larger total population. Management and Budget will not or counties (as a group) of the other Adjacent CBSAs that have an request local opinion again on the same CBSA using the measures and employment interchange rate of at least question until the next redefinition of thresholds stated in Section 3 above. 15 and less than 25 will be combined if CBSAs. New England City and Town Areas. 5. Terminology and Levels local opinion, as reported by the The New England City and Town Areas A CBSA will be assigned a level based congressional delegations in both areas, favors combination. CBSAs that are (NECTAs) provide an alternative to the on the total population of all the UAs county-based CBSAs in the six New and SCs within the CBSA (not on the combined will retain their identities as CBSAs within Combined Areas. England States for the convenience of total CBSA population). Levels of data users who desire city-and-town- CBSAs are: 9. Titles of Combined Areas based areas comparable to previous MA The title of a Combined Area will definitions for this region. Core-Based Statistical Total Population in All NECTAs will be defined by applying include the name of the largest principal Areas Cores the standards outlined in Sections 1 city in each of up to three CBSAs through 4 and 6 through 10 above for Megapolitan Areas .... 1,000,000 and above. involved in the combination in county-based CBSAs to data for cities Macropolitan Areas ... 50,000 to 999,999. descending order of CBSA population and towns. Levels for NECTAs will not Micropolitan Areas .... 10,000 to 49,999. size based on Census 2000 population. be determined. Cities and towns not Counties that are not included in The title also will include the name included in a NECTA will be designated CBSAs will be designated as Outside of the State in which the Combined ‘‘Outside NECTAs.’’ Core-Based Statistical Areas. Area is located. If the Combined Area extends into multiple States, the State H. Key Terms 6. Identification of Principal Cities names will be included in the title in (An asterisk (*) denotes new terms The principal city (or cities) of a descending order of population size proposed for the purposes of this report. CBSA will include: within the Combined Area. Two asterisks (**) denote terms whose (a) The largest incorporated place or 10. Intercensal Update Schedule definitions have changed for purposes census designated place in the CBSA; of this report from previous definitions.) (b) Any additional incorporated place A new CBSA will be designated Census designated place (CDP)—A or census designated place with a intercensally if (1) a city that is outside statistical entity equivalent to an population of at least 250,000 or in any existing CBSA has a Census Bureau incorporated place, defined for each which 100,000 or more persons work; special census count of 10,000 or more decennial census, consisting of a locally and population, or Census Bureau recognized, unincorporated (c) Any additional incorporated place population estimates of 10,000 or more concentration of population that is or census designated place with a population for two consecutive years, or identified by name. population that is at least 10,000 and (2) a Census Bureau special census Central city—The largest city of a one-third the size of the largest place, results in the delineation of a new UA metropolitan statistical area or a and in which employment meets or or SC of 10,000 or more population that consolidated metropolitan statistical exceeds the number of employed is outside of any existing CBSA. In the area, plus additional cities that meet residents. years up to 2007, outlying counties of specified statistical criteria. intercensally designated CBSAs will be **Central county—The county or 7. Titles of Core-Based Statistical Areas qualified, according to the criteria in counties of a Core-Based Statistical Area The title of a CBSA will include the Section 3 above, on the basis of Census containing a substantial portion of an name of the principal city with the 2000 commuting data. urbanized area or settlement cluster or VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00017 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.106 pfrm03 PsN: 20OCN2 56644 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices both, to and from which commuting is cores (urbanized areas or settlement statistical area defined by OMB to measured to determine qualification of clusters or both) that together have at provide an alternative to the city-and outlying counties. least 1,000,000 population, plus town-based metropolitan statistical **Core—A densely settled adjacent counties having a high degree areas and consolidated metropolitan concentration of population, comprising of social and economic integration with statistical areas in New England. either an urbanized area or settlement the core(s). *New England city and town area cluster (of 10,000 or more population) Metropolitan area (MA)—A collective (NECTA)—A proposed city- and town- defined by the Census Bureau, around term, established by OMB and used for based statistical area defined to provide which a Core-Based Statistical Area is the first time in 1990, to refer to an alternative to the county-based Core- defined. metropolitan statistical areas, Based Statistical Areas in New England. *Core-Based Statistical Area—A consolidated metropolitan statistical **Outlying county—A county that geographic entity consisting of the areas, and primary metropolitan qualifies for inclusion in a Core-Based county or counties containing one or statistical areas. Statistical Area on the basis of more cores (urbanized areas or Metropolitan statistical area (MSA)— commuting ties with the Core-Based settlement clusters or both) that together A geographic entity, defined by OMB for Statistical Area’s central county or have at least 10,000 population, plus statistical purposes, containing a core counties. adjacent counties having a high degree area with a large population center and of social and economic integration with adjacent communities having a high *Outside core-based statistical the core(s) as measured through degree of social and economic areas—Counties that do not qualify for commuting. integration with that center. inclusion in a Megapolitan, *Employment interchange rate—A Qualification of an MSA requires a city Macropolitan, or Micropolitan Area. measure of ties between two adjacent with 50,000 population or more, or an *Principal city—The largest city of a CBSAs used when determining whether urbanized area and a total population of they qualify to be combined. The Core-Based Statistical Area, plus at least 100,000 (75,000 in New employment interchange rate is the sum additional cities that meet specified England). MSAs are composed of entire of the percentage of employed residents statistical criteria. counties, except in New England where of the smaller CBSA who work in the *Settlement cluster (SC)—A statistical the components are cities and towns. larger CBSA and the percentage of geographic area proposed for definition employment in the smaller CBSA that is *Micropolitan area—A Core-Based by the Census Bureau for Census 2000, accounted for by workers who reside in Statistical Area containing one or more consisting of a central place(s) and the larger CBSA. cores (settlement clusters of at least adjacent densely settled territory that Geographic building block—The 10,000 population) that together have together contain at least 10,000 people, geographic unit, such as a county, that less than 50,000 population, plus generally with an overall population forms the basic geographic component adjacent counties having a high degree density of at least 1,000 people per of a statistical area. of social and economic integration with square mile. the core(s). *Macropolitan area—A Core-Based Urbanized area (UA)—A statistical Minor civil division (MCD)—A type of Statistical Area containing one or more geographic area defined by the Census governmental unit that is the primary cores (urbanized areas or settlement Bureau, consisting of a central place(s) legal subdivision of a county, created to clusters or both) that together have at and adjacent densely settled territory govern or administer an area rather than least 50,000 population and less than that together contain at least 50,000 a specific population. MCDs are 1,000,000 population, plus adjacent people, generally with an overall recognized by the Census Bureau as the counties having a high degree of social population density of at least 1,000 county subdivisions of 28 States and the and economic integration with the people per square mile. core(s). District of Columbia. *Megapolitan area—A Core-Based New England county metropolitan [FR Doc. 99–27351 Filed 10–19–99; 8:45 am] Statistical Area containing one or more area (NECMA)—A county-based BILLING CODE 3110±01±P VerDate 12-OCT-99 13:24 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00018 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.107 pfrm03 PsN: 20OCN2 eDt 2OT9 32 c 9 99Jt100 O000Fm001Ft41 ft41 :F\MA0C.1 fm7PsN:20OCN3 pfrm07 E:\FR\FM\A20OC3.116 Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt190000 13:26Oct19, 1999 VerDate 12-OCT-99 federal register October 20,1999 Wednesday Notice Education andRehabilitativeServices; List ofCorrespondenceÐOfficeSpecial Education Department of Part V 56645 56646 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices DEPARTMENT OF EDUCATION Part A the basis of the type of setting in which a child is served. List of Correspondence—Office of General Provisions Special Education and Rehabilitative Section 607—Requirements for Topic Addressed: State Education Services Prescribing Regulations Agency General Supervisory Responsibility Topic Addressed: Applicability of AGENCY: Department of Education. Letter dated October 19, 1998 to U.S. Regulations ACTION: List of correspondence from Congressman William F. Goodling, October 1, 1998 through December 31, Letter dated November 13, 1998 to regarding special conditions placed on 1998. U.S. Congresswoman Jo Ann Emerson, Pennsylvania’s Federal Fiscal Year 1998 regarding (1) States’ and school districts’ Part B State grant concerning exercise of obligations, pending publication of final State Educational Agency’s general SUMMARY: The Secretary is publishing regulations, to comply with all the following list pursuant to section supervisory responsibility, including applicable provisions of the IDEA effective monitoring of public agencies 607(d) of the Individuals with Amendments of 1997 and provisions of and securing correction of Disabilities Education Act (IDEA). the then current regulations that were noncompliance. Under section 607(d) of IDEA, the not in conflict with the IDEA Topic Addressed: Children Enrolled by Secretary is required, on a quarterly Amendments of 1997, and (2) the Their Parents in Private Schools basis, to publish in the Federal Register importance of a new requirement a list of correspondence from the governing the development of Letter dated October 20, 1998, to U.S. Department of Education received by individualized education programs for Congressman Robert T. Matsui, individuals during the previous quarter deaf and hard of hearing children under regarding the extent of public agencies’ that describes the interpretations of the Part B of IDEA. obligations to provide special education Department of Education of IDEA or the and related services under Part B of regulations that implement IDEA. Part B IDEA to children with disabilities Assistance for Education of all Children enrolled by their parents in private FOR FURTHER INFORMATION CONTACT: With Disabilities schools. JoLeta Reynolds or Rhonda Weiss. Letter dated November 13, 1998 to Section 612—State Eligibility Telephone: (202) 205–5507. Individuals Helen Walter, Advocate for Hard of who use a telecommunications device Topic Addressed: Free Appropriate Hearing People, regarding limited scope for the deaf (TDD) may call (202) 205– Public Education of due process rights for parents who 5465 or the Federal Information Relay enroll their children in private schools. Service (FIRS) at 1–800–877–8339 Letter dated November 20, 1998 to between 8 a.m. and 8 p.m., Eastern time, Arizona Department of Education Section 613—Local Educational Agency Monday through Friday, except Federal Superintendent Lisa Graham Keegan Eligibility and Mr. Terry Stewart, Arizona holidays. Department of Corrections, regarding Topic Addressed: Treatment of Charter Individuals with disabilities may the responsibility of the Arizona Schools and Their Students obtain a copy of this notice in an Department of Education under Part B Letter dated October 8, 1998 to alternate format (e.g., Braille, large print, of IDEA, Section 504 of the Wisconsin Department of Public audiotape, or computer diskette) on Rehabilitation Act of 1973, and Title II Instruction State Superintendent John T. request to Katie Mincey, Director of the of the Americans With Disabilities Act Benson, regarding (1) the Department’s Alternate Formats Center. Telephone: of 1990 to ensure the availability of a deference to, and agreement with, the (202) 205–8113. free appropriate public education to State’s interpretation that schools eligible youth with disabilities chartered by the City of Milwaukee, like SUPPLEMENTARY INFORMATION: The incarcerated in adult prisons and all other charter schools in the State, are following list identifies correspondence correctional facilities. public schools, (2) the obligation of from the Department issued between Letter dated December 4, 1998 to Dr. charter schools to ensure the provision October 1, 1998 and December 31, 1998. Ellenmorris Tiegerman, School for of a free appropriate public education to Included on the list are those letters Language and Communication children with disabilities and the that contain interpretations of the Development, explaining that a public obligation of the State to ensure requirements of IDEA and its agency is not obligated to reimburse for compliance with the IDEA, and (3) implementing regulations, as well as tuition costs for nondisabled preschool consequences of noncompliance with letters and other documents that the aged children in order to provide related Federal civil rights laws. Department believes will assist the integrated settings to implement the Letter dated November 4, 1999 to B. public in understanding the individualized education programs of J. Stockton, Missouri Department of requirements of the law and its preschool aged children with Elementary and Secondary Education, regulations. The date and topic disabilities. regarding the Department’s view that addressed by a letter are identified, and charter schools generally should be Topic Addressed: Least Restrictive presumed to be public schools which summary information is also provided, Envrionment as appropriate. To protect the privacy are subject to requirements regarding a Letter dated October 7, 1998 to Daniel free appropriate public education in interests of the individual or individuals Kinley, New York State School Boards Part B of IDEA, and clarifying that in involved, personally identifiable Association, regarding New York State’s order to be eligible for funds under the information has been deleted, as responsibility to ensure placements of Federal Public Charter Schools Program, appropriate. disabled children that meet the least the participating charter schools must restrictive environment requirements of be public schools that comply with Part the IDEA in light of the State’s funding B of IDEA, Section 504 of the formula that distributes State funds on Rehabilitation Act of 1973, and Title II VerDate 12-OCT-99 13:26 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\A20OC3.116 pfrm07 PsN: 20OCN3 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Notices 56647 of the Americans With Disabilities Act disabilities are not automatically service providers from initial of 1990. exempt from disciplinary sanctions evaluations. Memorandum dated August 10, 1998, because of their status as disabled Topic Addressed: State Interagency to Chief State School Officers from students. Coordinating Council former Assistant Secretary for the Office Letter dated October 20, 1998 to of Elementary and Secondary Education individual, (personally identifiable Letter dated October 5, 1998, to Ms. Gerald N. Tirozzi, regarding allocation information redacted), letter dated Mary Alice Leonard-Heath and Mr. of state-administered federal education December 8, 1998 to individual, Wayne Fox, Co-Chairs of the Vermont funds to public charter schools. (personally identifiable information Interagency Coordinating Council, redacted), and letter dated December 8, regarding ICC membership of a Section 614—Evaluations, Eligibility representative of a State lead agency. Determinations, Individualized 1998 to individual, (personally Education Programs, and Educational identifiable information redacted), Topic Addressed: Administration of Placements regarding options available to school Part C Funds authorities in disciplining students with OSEP Memorandum dated December Topic Addressed: Evaluations and disabilities. Reevaluations 30, 1998, to Lead Agency Directors and Letter dated November 18, 1998 to Topic Addressed: Transfer of Rights Part C Coordinators, regarding individual, (personally identifiable Restricted Indirect Cost Rate for Part C information redacted), regarding Letter dated December 21, 1998 to of the Individuals with Disabilities specific provisions in the IDEA individual, (personally identifiable Education Act. Amendments of 1997 that reduce information redacted), regarding the Electronic Access to This Document paperwork requirements, as well as the special rule under which a State is importance of ensuring local flexibility required to appoint the parent or You may view this document, as well in the implementation of the IDEA another appropriate individual to as all other Department of Education Amendments of 1997. represent the educational interests of documents published in the Federal the student throughout his or her Register, in text or Adobe Portable Section 615—Procedural Safeguards eligibility under the Act if the State has Document Format (PDF) on the World Topic Addressed: Timelines for Appeals a mechanism to, and determines that, an Wide Web at either of the following individual with a disability who has sites: Letter dated November 13, 1998 to reached the age of majority under State http://ocfo.ed.gov/fedreg.html individual, (personally identifiable law and has not been declared http://www.ed.gov/news.html information redacted), regarding incompetent, but cannot provide absence of timelines in Part B of IDEA informed consent with respect to his or To use the PDF you must have the for appealing due process hearing her educational program. Adobe Acrobat Reader Program with decisions or bringing of civil actions. Search, which is available free at either Part C of the preceding sites. If you have Topic Addressed: Student Discipline Infants and Toddlers With Disabilities questions about using the PDF, call the Letter dated October 20, 1998 to U.S. (Previously Part H) U.S. Government Printing Office) GPO) Senator Ted Stevens, regarding options toll free at 1–800–293–6498; or in the available to school authorities under the Sections 631–641 Washington, D.C., area at (202) 512– Individuals With Disabilities Education Topic Addressed: Implementation of a 1530. Act Amendments of 1997 in Statewide System Note: The official version of this document disciplining students with disabilities. is the document published in the Federal Letter dated November 18, 1998 to Letter dated December 16, 1998, to Register. Free Internet access to the official South Carolina State Representative J. Mary Miller, Illinois Bureau of Part C/ edition of the Federal Register and the Code Roland Smith, regarding circumstances Early Intervention, regarding the of Federal Regulations is available on GPO under which students with disabilities obligation to ensure that early Access at: http://www.access.gpo/nara/ can be subjected to more than one intervention services are available to all index.html removal from school for ten consecutive eligible infants and toddlers and their (Catalog of Federal Domestic Assistance families. Number 84.027, Assistance to States for school days or less in the same school Education of Children with Disabilities) year. Topic Addressed: Evaluations Dated: October 13, 1999. Letter dated November 5, 1998, to Mr. Dick Buscher, Paradise Valley Unified Letter dated December 30, 1998, to Judith E. Heumann, School District, regarding options Ms. Ginny Duncan, Parent Education Assistant Secretary for Special, Education available to school authorities in Network, regarding the role of a service and Rehabilitative Services. disciplining students with disabilities coordinator on the Multidisciplinary [FR Doc. 99–27314 Filed 10–19–99; 8:45 am] and clarifying that students with Evaluation Team and the exclusion of BILLING CODE 4000±01±P VerDate 12-OCT-99 17:19 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 E:\FR\FM\20OCN3.XXX pfrm08 PsN: 20OCN3 eDt 2OT9 32 c 9 99Jt100 O000Fm001Ft41 ft41 :F\M2OR.X fm7PsN:20OCR4 pfrm07 E:\FR\FM\20OCR4.XXX Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt190000 13:29Oct19, 1999 VerDate 12-OCT-99 federal register October 20,1999 Wednesday Network; FinalRule Organ ProcurementandTransplantation 42 CFRPart121 Administration Health ResourcesandServices Services Health andHuman Department of Part VI 56649 56650 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations DEPARTMENT OF HEALTH AND patient’s medical status, and (3) members of, and abide by the rules and HUMAN SERVICES allocation policies that make most requirements of, the OPTN as a effective use of organs, especially by condition for participation in the Health Resources and Services making them available whenever Medicare and Medicaid programs. This Administration feasible to the most medically urgent provision subjects a transplant patients who are appropriate candidates hospital’s entire Medicare and Medicaid 42 CFR Part 121 for transplantation. The final rule also participation, and thus in reality its Organ Procurement and sets standards for availability of organ economic survival, to OPTN policy and Transplantation Network transplantation data, and it addresses enforcement. A similar provision in the governing structure of the OPTN. No section 1138 affects funding under AGENCY: Health Resources and Services provision of the final rule is intended to Medicare and Medicaid for organ Administration, HHS. interfere with the discretion of procurement organizations (OPOs). But ACTION: Final rule. individual health professionals and authority for establishing conditions of patients in medical decision-making, participation in Medicare and Medicaid SUMMARY: This document sets forth and the rule looks to the OPTN to resides with the Secretary and cannot be improvements to the final rule design organ allocation policies. At the exercised by another party without governing the operation of the Organ same time, the rule defines the policy either oversight authority or delegation. Procurement and Transplantation oversight responsibilities of the Thus, review and oversight authority of Network (OPTN), published in 1998. It Secretary of HHS. In concert with efforts OPTN policies by the Secretary of HHS reflects the advice of a panel convened to encourage organ donation, the final is made even more necessary by section by the National Academy of Science’s rule is intended to help make best use 1138. A Federal Register notice Institute of Medicine, as called for in the of the limited number of organs published on December 18, 1989 (54 FR Department’s appropriation act for 1999. available for transplantation. 51802) addressed this need by stating It also reflects comments on the 1998 The final rule invited further that no OPTN policies are legally rule and consultation with comments, which have been received binding ‘‘rules or requirements’’ of the representatives of the organ and reviewed. In addition, the Omnibus OPTN for purposes of section 1138, transplantation community, as Consolidated and Emergency unless they have been approved by the recommended in the same legislation; Supplemental Appropriations Act for Secretary. The final rule published and it summarizes new transplant data 1999 delayed implementation of the April 2, 1998, defines the structure for developed in the period since final rule until October 21, 1999. (This such review and approval, thus setting enactment of the appropriations act. Omnibus Act, Public Law 105–277, at the stage for OPTN ‘‘rules or DATES: The final rule published on April section 101(f) of Division A, enacted the requirements’’ that would be 2, 1998, 63 FR 16296, adding 42 CFR Department of Labor, HHS, and enforceable on transplant hospitals and part 121 with an effective date of Education, and Related Agencies OPOs under section 1138. October 1, 1998, as amended on July 1, Appropriations Act, 1999. Within the In October 1998, section 213 of the 1998, 63 FR 35847, did not take effect latter act, section 213 included Appropriation Act delayed under section 213(a) within Public Law provisions related to the final OPTN implementation of the final rule to 105–277, 112 Stat. 2681, 2681–359 rule, 112 Stat. 2681, 2681–359 through October 21, 1999. Section 213 directed through 2681–360, approved October 2681–360. Hereafter, for ease of that the Institute of Medicine conduct a 21, 1998. The April 2, 1998 rule as reference, we will refer to section 213 of review of the current policies of the amended by this document, is effective the Appropriation Act, or simply OPTN and the final rule. Section 213 on November 19, 1999. section 213.) Section 213 called for also suggested that the Secretary ‘‘may FOR FURTHER INFORMATION CONTACT: independent review through the conduct a series of discussions with the D.W. Chen, M.D., M.P.H., Director, National Academy of Science’s Institute OPTN in order to resolve issues raised Division of Transplantation, Office of of Medicine. It also suggested by the final rule.’’ In addition, section Special Programs, Health Resources and development of improved information 213 indicated a need for improved Services Administration, 5600 Fishers on the effectiveness of the availability of data on transplantation Lane, Room 7C–22, Rockville, MD transplantation system, including and transplant center performance. center-specific information if possible. 20857, telephone 301–443–7577. B. Institute of Medicine Report SUPPLEMENTARY INFORMATION: On April Finally, it suggested further discussions 2, 1998, the Department of Health and between HHS and representatives of the The Institute of Medicine (IOM) Human Services (HHS) published in the transplant community. Each of these issued its report, Organ Procurement Federal Register a final rule pertaining areas has been addressed. and Transplantation, on July 22, 1999. The report included five major to the operation of the Organ I. Background Procurement and Transplantation recommendations. The Department has Network (63 FR 16296). In accordance A. Legislative and Regulatory History relied heavily on the guidance in the IOM report in reviewing the provisions with the National Organ Transplant Act Legislative and regulatory history are of its final rule. In general, the IOM (NOTA) of 1984, as amended, the outlined in the preamble to the April 2, report validates the concerns that gave purpose of the final rule is to help 1998, final rule. In addition to the rise to the final rule and the approaches achieve the most equitable and underlying statute (sections 371–376 of taken in the rule: medically effective use of human organs the Public Health Service Act, as that are donated in trust for enacted by the National Organ Recommendation 1: Establish Organ transplantation. Toward this end, the Transplant Act of 1984, and as Allocation Areas for Livers. The committee final rule establishes performance goals subsequently amended), of particular recommends that the DHHS Final Rule be intended to bring about: implemented by the establishment of Organ importance is section 1138 of the Social Allocation Areas (OAAs) for livers—each (1) Standardized criteria for placing Security Act, enacted in 1986. This serving a population base of at least 9 million patients on transplant waiting lists, (2) legislation requires hospitals that people (unless such an area would exceed standardized criteria for defining a perform organ transplants to be the limits of acceptable cold ischemic time). VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56651 OAAs should generally be established transplants outweighs the interest in medically urgent patients first, again, through sharing arrangements among organ confidentiality. referring to patients who are suitable procurement organizations to avoid candidates for transplantation. It is not C. Discussions With the Transplant disrupting effective current procurement the Department’s intention to require Community activities. transplantation of patients too ill to Recommendation 2: Discontinue Use of Representatives of HHS met with benefit; the final rule specifically Waiting Time as an Allocation Criterion for members of the transplant community [Liver Transplant] Patients in Statuses 2B prohibits policies that might result in and 3. The heterogeneity and wide range of on numerous occasions in the period such futile transplantations and organ severity of illness in statuses 2B and 3 make immediately following publication of wastage. Providing available organs to waiting time relatively misleading within the final rule. Since enactment of patients with greatest medical urgency these categories. For this reason, waiting time section 213, representatives of HHS who are appropriate candidates for should be discontinued as an allocation have met on 11 separate occasions with transplantation is already the policy of criterion for status 2B and 3 patients. An representatives of 11 transplant the OPTN within allocation areas. appropriate medical triage system should be organizations: United Network for Transplant priority for patients with developed to ensure equitable allocation of Organ Sharing (UNOS, the current greatest medical urgency, whenever organs to patients in these categories. Such OPTN contractor), Transplant they are medically suitable, follows the a system may, for example, be based on a Recipients International Organization, tenets of medical practice generally and point system arising out of medical American Liver Foundation, National is already accepted throughout the characteristics and disease prognoses rather Transplant Action Committee, National than waiting times. transplant community and general Recommendation 3: Exercise Federal Minority Organ and Tissue Transplant public. Oversight. The Department of Health and Education Program, National Kidney • Medical Factors Affecting Organ Human Services should exercise the Foundation, Patient Access to Movement: The final rule fully legitimate oversight responsibilities assigned Transplantation Coalition, American recognizes limitations on movement of to it by the National Organ Transplant Act, Society of Transplantation, American organs resulting from medical factors, and articulated in the final rule, to manage Society of Transplant Surgeons, North especially limits of ischemic time. As the system of organ procurement and American Transplant Coordinators recommended by the IOM report, and as transplantation in the public interest. This Organization, and the American intended by the 1998 final rule, sharing oversight should include greater use of Nephrology Nurses Association. On of organs should be broad enough to patient-centered, outcome-oriented September 15, 1999, an additional enable medically effective use of organs, performance measures for OPOs, transplant centers, and the OPTN. meeting with representation invited especially to enable organs to reach the Recommendation 4: Establish Independent from all of these organizations took most medically urgent patients, but Scientific Review. The Department of Health place to discuss together issues that had ischemic time limits and any other and Human Services should establish an been surfaced. medical factors affecting the viability of external, independent, multidisciplinary Clarifications the organ must be considered in scientific review board responsible for designing allocation policies. assisting the Secretary in ensuring that the HHS is further clarifying these issues • Small and Medium Sized system of organ procurement and with this publication: Transplant Centers: The Department transplantation is grounded on the best • ‘‘National’’ lists: The final rule does does not expect the final rule to cause available medical science and is as effective not require single national lists for the closure of small or medium sized and as equitable as possible. allocation of organs, beyond the transplant centers or otherwise diminish Recommendation 5: Improve Data national registry lists already utilized by Collection and Dissemination. Within the access to transplantation for certain bounds of donor and recipient confidentiality the OPTN. As underscored by the IOM populations, including those living in and sound medical judgment, the OPTN recommendations, it is the Department’s rural areas. The IOM report did not find contractor should improve its collection of goal to achieve sharing of organs broad evidence that the rule would have such standardized and useful data regarding the enough to achieve medically effective effects; and a report by the HHS Office system of organ procurement and results for patients, especially by of Inspector General (‘‘Fostering Equity transplantation and make it widely available providing organs for patients with in Patient Access to Transplantation: to independent investigators and scientific greatest medical urgency who are Local Access to Liver Transplantation,’’ reviewers in a timely manner. The appropriate candidates for dated August 1999) concluded that Department of Health and Human Services transplantation. When using the terms should provide an independent, objective geographic distribution of liver assessment of the quality and effectiveness of ‘‘greatest medical urgency,’’ or ‘‘most transplant centers is unlikely to change the data that are collected and how they are medically urgent,’’ the Department is as a result of national policies on organ analyzed and disseminated by the OPTN. referring to transplanting those patients allocation. The Department is concerned whose medical condition, in the that patient access to transplant services In addition, the General Accounting judgment of their physicians, makes not be adversely affected by closure of Office (GAO) made findings in two them suitable candidates for centers that are providing quality care, other areas required by section 213: the transplantation. The final rule directs including small and medium sized possibility of legal liability of OPTN the OPTN to overcome as much as centers. Thus, the amendments below members arising from their peer review possible arbitrary geographic barriers to include provision for monitoring any activities and the confidentiality of allocation that restrict the allocation of effects of policy changes on small and information. Regarding liability, the organs to patients with greatest medical medium sized centers. However, HHS General Counsel of the GAO found no urgency who are appropriate candidates and the OPTN should work together to apparent conflict between the final rule for transplantation and that are not ensure that all transplant programs, and State laws governing peer review. based on medical criteria. Broader regardless of volume, are providing Regarding confidentiality, the General sharing was an essential element of the quality care to candidates and Counsel found that the Secretary of HHS IOM’s findings. recipients. has authority under the final rule to • Most Medically Urgent Patients: • Designated Transplant Program decide that the public interest in The final rule follows, and intends to Requirements: The final rule carries disclosure of information about organ expand, existing policy in serving most forward the policies in the proposed VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 56652 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations rule that provided separate staffing and directions for the [organ transplantation] composition of the OPTN Board of organizational ‘‘designated transplant system.’’ It would also, as recommended Directors. Some participants believed program’’ requirements for non- by the IOM, ‘‘help insure that policies that the rule should require, not merely Medicare participating transplant and procedures are evidence-based and authorize, the Board to include at least programs and those that are certified as guided by the best available scientific 50 percent representation of transplant Medicare approved transplant programs. and medical precepts.’’ In order that the physicians and transplant surgeons, to The Department has received comments Committee fulfill this latter ensure a preponderance of medical similar to those submitted in response responsibility, § 121.4 (b)(2) and (d) expertise. Others suggested more even to the proposed rule, suggesting that have been revised to reflect this role. division of representation among uniform standards be applied for When the OPTN proposes enforceable transplant physicians and transplant designation status. The Department policies, the Secretary will ask the surgeons, other non-physician continues to have no objection to this Committee for its views on the transplant professionals, and suggestion in principle, but believes that proposals when the proposals are candidates, recipients, donors, their the OPTN should submit such standards published in the Federal Register for families, and the general public. for the Secretary’s consideration as public comment. The Committee’s Concern was also raised that a possible changes to the Medicare views, public comments, and the combination of percentage conditions for coverage of organ Department’s views will then serve as representation requirements with transplants, which currently contain the basis for discussions with the OPTN. specific categorical representation similar requirements. If, after these discussions, the Secretary requirements would make the Board so wishes to direct that the OPTN revise its large as to be unwieldy, if the Board Secretarial Oversight and Enforceability proposals, the OPTN will have the of OPTN Policies chose to allow 50 percent representation opportunity to suggest revisions. If the of transplant physicians and surgeons. Virtually all commenters agreed that Secretary does not agree with the The Department has reorganized and HHS should exercise an oversight role OPTN’s revised approach (or if it does revised the Board and Executive over OPTN policies, although there not respond in a timely manner), the Committee composition provisions to were different views among the Secretary may require the OPTN to take strengthen the role of transplant participants as to how such oversight other appropriate actions. However, the physicians and surgeons on the Board, should be carried out. Exercise of HHS Secretary will ask the Committee for its consistent with the rule’s thrust that oversight was also one of the five views on the specific proposed actions allocation policy (one of the OPTN’s primary recommendations of the IOM before transmitting them to the OPTN. most important responsibilities) be report. Further, as explained in A similar approach may also be used based on objective and measurable ‘‘Legislative and Regulatory History’’ should the Secretary review other OPTN medical criteria and sound medical above, section 1138 of the Social policies, or elect to evaluate critical judgment, to strengthen the role of Security Act elevates OPTN comments received by the Secretary transplant candidates, recipients, membership and policies to the status of relating to the manner in which the donors, and their families on the Board requirements for participation in OPTN is carrying out its duties. and its Executive Committee, and to Medicare and Medicaid for transplant It is not the desire, nor is it the provide the OPTN greater flexibility in hospitals and OPOs, thus necessitating intention, of the Department to interfere determining the appropriate size for the Secretarial review and oversight in the practice of medicine. Decisions Board. This document includes authority over those policies. The final about who should receive a particular amendments that identify categories of rule provides the framework for such organ in a particular situation involve membership, but do not require a oversight as well as the framework for levels of detail, subtlety, and urgency specific number of members from each creating a body of enforceable OPTN that must be judged by transplant category. This amendment requires policies. professionals. The Advisory Committee approximately 50 percent transplant An additional recommendation by the will greatly assist the Secretary with physician or transplant surgeon IOM was establishment of an respect to the medical and scientific membership, instead of no more than 50 independent scientific review board components of OPTN policies. The percent, and specifies at least 25 percent ‘‘for assisting the Secretary in ensuring medical community has substantial transplant candidates, transplant that the system of organ procurement contributions to make within the recipients, organ donors, and family and transplantation is grounded on the deliberative process for developing members. best available medical science and is as OPTN policies, as well as in individual effective and as equitable as possible.’’ decisions involved in clinical We have retained the provision In response to this recommendation in transplantation practice. designed to avoid even an appearance of the IOM report as well as comments The rule also has been revised to a conflict of interest by requiring that received, the Department intends to emphasize that the Secretary’s review is transplant candidates, recipients, create such an advisory board, the intended to ensure consistency between donors and family members on the Advisory Committee on Organ OPTN policies and the National Organ Board not have an ‘‘employment or Transplantation. The Department Transplant Act and this regulation. This similar relationship’’ with certain intends to implement the IOM’s revision is intended to emphasize, as entities and individuals involved in recommendations that this Committee the IOM did in its report, that the transplantation. However, we received have several key responsibilities. As Secretary’s oversight will further the comments suggesting that such recommended by the IOM, the public interest, a role assigned to the individuals may have exceptional Committee will provide ‘‘timely, Department by the National Organ commitment or knowledge and should nonpartisan review’’ to ‘‘assist the Transplant Act and articulated in this not be automatically disqualified from Secretary in managing the system in a regulation. Board membership, and that, in any manner that best serves the public event, the Board should have additional interest.’’ It will also, as recommended OPTN Board Composition flexibility in this area. We have revised by the IOM, ‘‘help provide objective Participants expressed a variety of this provision to authorize the Board to information and advice for future views on requirements concerning the waive this requirement for up to half of VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56653 these members. We expect the Board to until June 30, 2000. This will allow using ‘‘waiting time in status’’ is, use this flexibility consistent with the OPTN member organizations adequate however, permitted as a factor in rule’s goal of broad involvement of time to become fully Y2K compliant and allocation policy. patients, recipients, donors, families ensure that all data submitted to the Second, § 121.8(b)(4) requires the and the public in the formulation of OPTN is done so electronically, and will OPTN to use performance indicators to transplant policy. enable the contractor to meet the assess transplant program performance Department’s and the IOM’s and to seek to reduce the variations Broader Geographic Sharing of Organs expectations that information be more among transplant programs with respect The final rule’s emphasis on broader timely and accessible. to selected performance indicators. This sharing of organs is being clarified ‘‘performance indicator’’ approach is through this document. Establishment Use of Waiting Time consistent with the IOM’s of liver allocation areas broad enough to In general, the IOM found the recommendation that data be used to provide for medically effective emphasis on cumulative waiting times assess transplant program performance. allocation of organs was the leading to be inappropriate as a measure of Among the alternatives available to the recommendation of the IOM report. equity in the transplant system and as OPTN is the performance indicator Some commenters expressed concern a criterion for allocation for less ‘‘waiting time in status.’’ Consistent about the need for the transplant system medically urgent patients, pointing with the IOM’s approach, if the OPTN to use standard criteria for listing instead toward ‘‘more meaningful retains waiting time in status for patients and assigning their urgency indicators of equitable access’’ such as allocation purposes for medically urgent status, and likewise the need for ‘‘status-specific rates of categories similar to current Status 1 enforcement mechanisms to ensure that pretransplantation mortality and and 2A in its revised liver allocation medically urgent patients who are transplantation.’’ The IOM report policies, the Department would expect appropriate candidates for indicated, however, that the use of the OPTN to use waiting time in status transplantation are not disadvantaged ‘‘waiting times in status’’ for the most as a performance indicator for liver through misuse of listing criteria or medically urgent liver transplant patients, along with necessary medical priority rankings. The final rule calls on patients (those in status 1 and 2A) was criteria. the OPTN to develop such standard ‘‘an appropriate criterion, along with Regarding the general approach of criteria, and to monitor compliance with necessary medical criteria.’’ For less reducing variations among transplant them, prospectively if appropriate. medically urgent patients (statuses 2B programs with respect to selected Further, by establishing a framework for and 3), the IOM recommended that the performance indicators, we also expect Secretarial review and approval of OPTN discontinue use of waiting time the OPTN to work towards improving, OPTN policies, as well as review and as an allocation criterion and instead where possible, the outcomes under evaluation procedures for the OPTN, the develop ‘‘an appropriate medical triage these indicators. For example, if the rule provides a foundation for system . . . to ensure equitable OPTN used the performance indicator enforcement of these standard criteria. allocation of organs to patients in these pretransplantation mortality rates for categories.’’ HHS generally agrees with liver patients by medical status, as Frequency and Timeliness of Data these findings, although the Department recommended by the IOM, then the Most participants expressed support believes that waiting time in status Department would expect the OPTN to for enhanced frequency and timeliness (unlike cumulative waiting time) can be seek to reduce the variations in this of data. Likewise, the IOM report one among several useful criteria in performance indicator by improving strongly urged improvements in data assessing variability in results for pre-transplant survival at programs collection and dissemination, both for patients at different transplant centers. where it fell significantly below the physician and patient information and To date, waiting times have been used national rates. to provide outcome data that may in examining the performance of the We also note that, although improve understanding of best medical transplant system in part because § 121.8(b)(2) requires that the medical practices. As OPTN contractor, UNOS waiting times are used by the OPTN as characteristics of patients within each expressed concern about its ability to an allocation criterion, and in part due category be as similar as possible, the meet the frequency requirements in the to lack of better measures. It is for these IOM observed that the current liver April 2 final rule. The Department has reasons that reducing any variations in status categories 2B and 3 were decided to retain the 6 month data ‘‘waiting time in status,’’ especially for heterogeneous. As a result, some presentation requirement. The the most medically urgent patients, was patients in these categories need life- Department recognizes that UNOS’ included as a performance measure in saving transplants sooner than others. concerns stem in part from its belief that the final rule published April 2. In The other patients, often with longer certain types of data may not need to be addition, the IOM recommendation waiting times, can, nevertheless, wait updated as frequently as others. points again to the need for better data longer periods of time without increased Therefore, the Department has added a to provide alternatives to waiting time risk of death. Therefore, the IOM provision that would permit longer as a performance measure. Based on the concluded that the OPTN should not intervals for certain data. IOM’s recommendations and comments use waiting times as a criterion for The Department recognizes the from the transplant community, the patients in these categories. Some progress that UNOS has made in Department has made additional commenters, however, suggested that increasing the availability of program- refinements to the rule’s discussion of the OPTN would have difficulty further specific information for use by patients, waiting times. refining its existing status categories. families, physicians, and payors. To The Department’s approach in this Commenters also requested that the respond to the contractor’s concerns section follows the recommendations of OPTN be allowed to continue to use regarding its ability to meet the the IOM and responds to issues raised waiting times in some fashion for these frequency of the reporting requirement by commenters. First, the Department patients. This rule provides the OPTN in the final rule, HHS will not require agrees with the IOM recommendations flexibility to continue to use waiting the submission of the first program- that ‘‘overall’’ waiting times are an times for patients in these categories but specific report under § 121.11(b)(1)(iv) inappropriate measure. The concept of would require that such use not VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 56654 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations override medical urgency considered the possibility that positive to local OPOs and conduct donation considerations. rewards might be offered for high request training programs for However, the Department expects, as performing OPOs, to add to incentives appropriate staff representatives. In the IOM concluded, that broader sharing for organ donation. The Department 1999, HRSA and HCFA jointly of organs should occur for all patients believes that high performance by OPOs sponsored projects to encourage and that organs will go to more should be rewarded in a way that does collaboration between hospitals and medically urgent patients who are not disadvantage patients by OPOs in effectively implementing this appropriate candidates for transplants compromising one of the fundamental regulation. HCFA’s responsibility for before being offered to patients whose objectives that the final rule is trying to OPO performance standard condition permits them to wait longer achieve—namely broader sharing of establishment, certification and re- for a transplant. organs. Therefore, the Department certification of OPOs, and OPO waiver OPTN Review of Member Compliance encourages the OPTN to develop and request review involves close With Final Rule Requirements and recommend to the Secretary policy cooperation with HRSA to identify Mandatory OPTN Policies incentives to reward high-performing practices most likely to benefit donor OPOs. In addition, in response to families and transplant patients, and Many members of the transplant longer-standing concerns, HHS’ Health that impact current organ allocation community expressed concern about Care Financing Administration (HCFA) policy. In addition, HCFA and HRSA how best to promote compliance with is reviewing the way it currently are working together to enhance and OPTN policies. Section 121.8(a)(7) has measures OPO performance. better coordinate collection, reporting, been added to emphasize that the OPTN and analysis of organ procurement and should especially promote compliance Policies to Address Socioeconomic Barriers transplant data in an effort to assure with approved allocation policies optimum performance of the OPTN. through prospective and retrospective Some in the transplant community reviews of programs’ compliance with have expressed concern that the final D. Data allocation policies. In addition, the rule would require transplant hospitals Section 213 called for ‘‘timely and OPTN is required by § 121.10 to conduct to make their own financial resources accurate program-specific information reviews and evaluations of each OPTN available to pay for transplant and on the performance of transplant member’s compliance with these rules follow-up care for patients unable to programs.’’ The IOM report, in and approved OPTN policies. Thus, the pay. However, this was not the intention reviewing 68,000 medical records, made OPTN is required to implement a review of the April 2 final rule. The rule calls a significant contribution in the data process to ensure that individuals on the OPTN Board of Directors to area, although the report also cited the receiving transplants are accurately recommend policies that would reduce listed and in proper classification paucity of data available and inequities in access resulting from recommended improved data collection categories to receive organs. Currently, socioeconomic status and ensure that UNOS liver and thoracic Regional and dissemination. In addition, UNOS the registration fee itself does not recently has added Internet-based Review Boards (RRBs) provide represent a barrier to transplantation. retrospective review of designation of capability, both for providing status 1 and 2A patients for livers and Registration Fees information to physicians and the 1A patients for hearts. The Department One commenter objected to public and for collecting data from its will explore with the OPTN contractor Secretarial review of that portion of members. issues related to the conduct of registration fees paid by OPTN members Finally, HHS has completed new prospective and/or retrospective (and indirectly by patients and their transplant program-specific analyses reviews of all listings and changes in insurers) that represents expenditures that show varying outcomes for patients status categories to assure that programs by the contractor that are not directly among different transplant hospitals. are making appropriate classification related to the tasks performed under the Department staff analyzed OPTN patient determinations. Reviews, prospective contracts with HHS. The final rule outcome data for liver and heart and retrospective, might be performed specifies that the Secretary has oversight transplants with respect to three critical by existing OPTN RRBs. In addition, the of that portion of the registration fee issues: (1) The likelihood that, having Secretary may ask independent third directly related to operation of the been listed as a transplant candidate, a parties, such as the Joint Commission on OPTN. patient will receive an organ within one the Accreditation of Health year; (2) the likelihood that a patient Health Resources and Services Organizations (JCAHO), or Utilization will die within one year of listing while Administration (HRSA)–HCFA and Quality Control Peer Review awaiting transplantation; and, (3) the Cooperation Organizations (PROs) established under likelihood that a patient will still be Part B of title XI of the Social Security A commenter noted the need for alive one year after listing, irrespective Act, to monitor the OPTN enforcement increased coordination between HRSA of whether he or she underwent a system by independently conducting and HCFA on transplantation issues transplant procedure. After risk audits of the work of the RRBs. within their respective areas of adjustment (i.e., adjustment for responsibility. HRSA and HCFA have differences in the mix of patients’ health Incentives for High Performing OPOs pursued several cooperative efforts to status from program to program), the Concern has been expressed that, by achieve increased organ donation, a goal analyses revealed substantial differences emphasizing broader sharing of organs, of the Administration’s National Organ in outcomes from one transplant the final rule might bring about reduced and Tissue Donation Initiative, which program to another. The principal organ donation. The Department was launched in December 1997. On findings for liver transplants illustrate disagrees, and the IOM report found June 22, 1998, HCFA published a final that: some evidence that, where broader rule (42 CFR part 482) regarding • Ten percent of the programs have a sharing is currently occurring, Medicare Hospital Conditions of standardized risk-adjusted rate of donations have increased. In response to Participation, which requires hospitals transplantation within one year of these concerns, however, HHS has to refer all deaths and imminent deaths listing of 71 percent or more; whereas, VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56655 for another ten percent of the programs, requirements from the previously 3. Composition of OPTN Board of the rate is 25 percent or less; published final rule. Directors • The likelihood of dying within one 1. Definition of Organ year of listing while awaiting a The Department wishes to ensure transplant ranges from less than 8 The Department has deleted bone adequate patient, donor and family percent to more than 22 percent; and marrow from the definition of organ in representation on the OPTN Board of Directors, while giving the OPTN • The likelihood of surviving one § 121.2 because it falls within the scope sufficient flexibility to constitute a year after listing as a transplant of a different statutory authority. balanced and effective Board. Thus the candidate or a recipient ranges from Although the NOTA refers to bone Department has included a requirement approximately 65 percent to almost 86 marrow for purposes of the Scientific under § 121.3(a) that the Board of percent. Registry, subsequent legislation Directors shall include at least 25 The analogous values for heart established a separate program to percent transplant candidates, transplants are 72 and 36 percent address ‘‘unrelated’’ bone marrow transplant recipients, organ donors, and (transplantation within one year of transplants. A commenter family members. In response to listing), 9 and 23 percent (death within recommended that the definition be comments, the Department also has one year of listing while awaiting a expanded to include intestine, stomach, revised § 121.3(a)(1) to enable the OPTN transplant), 67 and 84 percent (survival or a collection of human cells that to govern itself with greater flexibility for one year after listing irrespective of perform a vital function of an organ, than was provided by the 1998 rule. The whether transplanted or not). including any organ containing vasculature that carries blood after revised language maintains the In the course of performing these requirement that the Board of Directors analyses, Department staff identified transplantation. In the Preamble to the 1998 rule, the Department stated: ‘‘The include representatives of OPOs, gaps in the data currently collected by transplant centers, voluntary health the Scientific Registry—e.g., additional inclusion of other organs, such as the stomach and intestines, not only would associations, transplant coordinators, clinical details about patients’ histocompatibility experts, other non- conditions at the time of listing (which have an impact on other requirements in these regulations such as the physician transplant professionals, and could improve risk adjustment) and the general public, but does not additional data on clinical development of allocation policies, certification of designated transplant mandate a specific number of members complications (which could help in from each category. The Secretary assessing quality of life following programs, and establishment of training requirements but also would affect OPO believes that the less prescriptive transplantation). The Department has language in this revision will better provided these analyses to UNOS and requirements to procure these organs in accordance with HCFA rules. Thus, the allow the OPTN itself to determine the has encouraged it, in its management of appropriate size of, and representation the OPTN and its operation of the Department believes it would be premature for this rule to specify other on, its Board of Directors, while Scientific Registry, to broaden the scope achieving a balance among physician, of data collection and make increased organs in addition to those already named. Instead, the Department will patient, donor, family and other use of program-specific performance representatives. analyses. The analyses are included in direct the OPTN contractor to consider the U.S. Department of Health and which organs or parts of organs, if any, Section 121.3(a)(2) has been revised. Human Services 1999 Report to should be subject to OPTN policies, and That paragraph prohibited those Board Congress on the Scientific and Clinical to submit recommendations to the members who were identified as Status of Organ Transplantation. Secretary.’’ The Department’s position transplant recipients, transplant on this issue remains unchanged. candidates, organ donors, family II. Public Comments members, or members of the general 2. National List Between April 2 and September 16, public to be employees of, or have 1998, we received a total of The term ‘‘national list’’ has been similar relationships with, specified approximately 2,500 comments on the replaced with ‘‘waiting list’’ in § 121.2, categories of institutional members final rule. (Letters with petitions or with and throughout the final rule. The term required to be on the Board. The revised form letters attached were counted as ‘‘national list’’ was incorporated into the paragraph is more flexible, as described one comment. HHS received a total of regulation to reflect statutory language more fully above. approximately 20,000 form letters.) The in section 372 of the Public Health As discussed above, § 121.3(a) has majority of the comments reflected Service (PHS) Act, 42 U.S.C. 274, which been revised to require that issues addressed in ‘‘Clarifications’’ requires the OPTN to ‘‘establish a approximately 50 percent of the Board above. This document includes changes national list of individuals who need members be transplant surgeons or intended to make these issues clear. organs.’’ Current OPTN allocation transplant physicians, rather than the Other issues raised by commenters were convention derives subordinate lists language of the April 2, 1998, rule discussed in the meetings conducted from a single database and current requiring no more than 50 percent, and this year pursuant to section 213 of the OPTN policy allocates zero-antigen that at least 25 percent of its members Appropriation Act, and they are also mismatched kidneys nationally, due to be transplant candidates, transplant outlined above. scientifically demonstrated recipients, organ donors, and family improvements in patient and graft members. The comparable requirements III. Changes in the Regulatory Text survival resulting from this policy. for the Executive Committee of the As a result of the comments received, Furthermore, ischemic times and Board have been similarly revised. the Department has made several patient outcomes make such an Transplant physicians or transplant modifications to the final rule published approach appropriate in the case of surgeons elected to the Board or on April 2, 1998. Some changes have zero-antigen mismatched kidneys. If Executive Committee under other been made to clarify the regulatory supported by scientific evidence, the categories must be counted toward the language. Other revisions to the Department has no objection to this requirements of these paragraphs of the regulatory text add provisions or modify approach. final rule. VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 56656 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations Furthermore, the requirement for a a portion of the current fee represents a that section, the Department expected two year term for Board members in voluntary payment by OPTN members that the criteria developed for adding former § 121.3(a)(4) has been deleted. to the contractor for services outside the patients to the waiting list would Board members have diverse direct operation of the OPTN on behalf inherently contain criteria for removing backgrounds and will require different of patients, while another portion patients from the list. Commenters periods of time to become familiar with represents the payment provided by pointed out that the rule should be the complex issues coming before the patients and their insurers for the specific in this respect. The Department Board. Thus, we believe that it is operation of the OPTN system itself. adopted this suggested clarification in appropriate for the OPTN to determine Consequently, the Department has § 121.8(b)(1). for itself the length of the term for Board modified the language of § 121.5(c) to 9. Organ Allocation members, subject to Departmental indicate that the portion of the review. registration fee subject to Secretarial The Department received many oversight is that portion directly related comments on this section, especially 4. Socioeconomic Issues to operation of the OPTN; any other fee former § 121.8(a). We have reorganized As articulated in the April 2, 1998, may only be charged on a voluntary this entire section for clarity and rule, the Department is concerned that basis to OPTN members. In this regard, addressed points raised by the IOM as all patients in the country have access the Department would interpret the well as several issues raised by to transplantation and encourages the ‘‘reasonable costs’’ for operating the commenters. Some commenters asked OPTN to work toward this goal. Several OPTN to include additional costs of that we clarify the OPTN’s ability to members of the transplant community, compliance under § 121.8(a)(7) and have different allocation policies for however, commented that the reviews and enforcement under different types of organs (or provisions of § 121.4 addressing § 121.10. combinations of organs) to be socioeconomic issues would require transplanted. Language to this effect is transplant hospitals to make their own 7. Human Immunodeficiency Virus now found in § 121.8(a)(4). The financial resources available to pay for (HIV) Department wishes to emphasize that transplantation and follow-up care for Commenters suggested revising the this means that the OPTN may take a patients unable to pay. In response to language of § 121.6(b) to authorize different approach in defining priority these comments, the Department has transplantation of organs from HIV ranking under § 121.8(b)(2) for organs revised this section to specify that positive donors to HIV positive like kidneys where the technology of paragraph (a)(3)(i) refers only to the recipients. The Department has revised renal dialysis permits some flexibility in registration fee and has revised § 121.6(b) to reflect the language of the determining the timing of a transplant. paragraph (a)(3)(ii) to clarify that statute. We note, however, that HCFA Similarly, a different approach may also resources for patients unable to pay regulations governing OPOs, at 42 CFR be taken where such ‘‘rescue’’ should be sought from all available 486.306(q), require OPOs to screen techniques are available for other sources. donors to ‘‘[e]nsure that appropriate organs. Such alternatives may be used, donor screening and infection tests, consistent with sound medical 5. Secretarial Review of OPTN Policies consistent with the OPTN standards and judgment. In response to comments asking the CDC [Centers for Disease Control Other commenters suggested that the which OPTN policies are to be and Prevention] guidelines * * * are concepts of using sound medical submitted to the Secretary, the performed * * * to prevent the judgment, avoidance of futile Department has modified the language acquisition of organs that are infected transplants or wastage of organs, and of § 121.4(b)(2) to provide that the Board with the etiologic agent for acquired promotion of the efficient use of organs of Directors is required to provide the immune deficiency syndrome.’’ The should be applicable to all the Secretary with proposed policies that OPO regulations require that OPO donor performance goals. Language adopting the OPTN recommends be enforceable screening meet the two thresholds of the this suggestion is now found in under § 121.10 (including allocation OPTN standards as well as the CDC § 121.8(a)(5). policies) and others as specified by the guidelines. OPOs must comply with the We have added to § 121.8(a)(5) a Secretary. As discussed above, the rule CDC ‘‘Guidelines for Preventing provision that allocation policy seek to has been revised to adopt the IOM’s Transmission of Human promote patient access to transplants, recommendation that the Advisory Immunodeficiency Virus Through an issue Congress asked the IOM to Committee assist the Secretary in Transplantation of Human Tissue and address. As discussed above, we have reviewing OPTN policies and practices Organs’’ as appended to the regulations also added at § 121.8(a)(7) language to as well as to indicate the purposes of the for OPOs (see 42 CFR part 486, Subpart promote compliance with and Secretary’s review. G, Appendix A). As a result, the OPO enforcement of approved allocation The timing requirement has also been regulations will still preclude policies. changed from 30 days to 60 days before acquisition of an organ from an HIV- We have revised the discussion of implementation of the proposed policy positive donor for transplantation. The medical urgency now found in to provide a more realistic estimate of OPTN may propose standards § 121.8(b)(2). We have made clear that the time required for review by the permitting such transplantation to the the need to rank patients or categories Advisory Committee and the public, Secretary for consideration and of patients in order of decreasing should such review be necessary. potential change in existing CDC medical urgency only applies to guidelines. otherwise medically appropriate 6. Registration Fee candidates for transplants. This is One commenter objected to 8. Criteria for Listing Patients consistent with the provisions found in Secretarial review of the patient The 1998 rule set as a performance § 121.8(a) that require allocation registration fee, maintaining that this fee goal that the OPTN standardize policies be developed in accordance is paid voluntarily by OPTN members objective and measurable medical with sound medical judgment and for the services provided to them by the criteria for including patients on the avoidance of futile transplants and contractor. The Department agrees that waiting list. In drafting the language of organ wastage. VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56657 Some commenters suggested that the operated by the Department of Defense assist the Secretary in, ‘‘ensuring that rule was unclear as to how ‘‘medical (DoD), transplant programs in DoD or the system of organ procurement and urgency’’ applies to kidney allocation other Federal hospitals have been added transplantation is grounded on the best policy. We revised this section in to those eligible to receive organs for available medical science and is as response to comments that the term transplantation under § 121.9(a). effective and as equitable as possible.’’ ‘‘status categories,’’ as currently used for Constitution of such an advisory 11. Enforcement liver and heart patients, is not used for committee and its consultation by the kidney patients. (Instead, a point system Section 121.10(c)(1) has been edited Secretary, as appropriate, in the words is used to rank patients when an organ to clarify that appropriate enforcement of the IOM, ‘‘would also enhance public becomes available.) The use of the term action may include termination of a confidence in the integrity and ‘‘patients or categories of patients’’ in transplant program’s reimbursement effectiveness of the system.’’ The this section makes clear that ranking under Medicare and Medicaid. In Department has added a new § 121.12 to patients rather than categories of addition, the Department wishes to provide for the establishment of an patients is permitted under this rule. As clarify that the regulation permits the Advisory Committee on Organ discussed above, we intend for ranking OPTN to develop policies that will Transplantation. The Committee, to be to be applied in the context of the contain lesser or intermediate level established in accordance with the factors listed in § 121.8(a), especially in sanctions that may be taken by the Federal Advisory Committee Act [5 accordance with sound medical OPTN, but these policies must first be U.S.C. App.], will be available to the judgment. Therefore, we believe that approved by the Secretary in order for Secretary to provide comments on there may well be different approaches them to be enforceable. proposed OPTN policies and other to kidney allocation policy than those matters related to transplantation. The 12. Reporting Requirements for other types of organs, perhaps along Committee will be composed of the lines of the current policies, which Section 121.11(b)(2) has been individuals drawn from diverse take into account such factors as amended to include transplant program backgrounds such as health care public immunologic compatibility between the costs among the items to be reported by policy, transplantation medicine and donor and patient, whether the patient’s transplant hospitals to the OPTN and surgery, non-physician transplant immune system is highly sensitized, the Secretary. Although the language in professions, biostatistics, immunology, and other medical factors. the previously published final rule was health economics, epidemiology, Commenters suggested that the sufficiently broad to permit the bioethics, and law. As part of this Department closely monitor the changes Secretary to specify that cost process of establishing the Committee, to allocation policies made after the information be submitted, it was felt the Secretary intends to solicit initial reviews required under this that its specific inclusion in the rule nominations for Committee members section to ensure that the new policies would ensure that such information from the transplant community and the are achieving the desired improvements would be made available on a timely general public. in the allocation system. The basis when requested, consistent with IV. Impact Analyses Department intends to monitor the section 213. Because of the difficulty in effects of these changes closely and in defining costs for these purposes, the We have examined the impact of this consultation with the OPTN. In addition Department will accept measures of amendatory language as required by to this monitoring and consultation, the resource utilization. Executive Order 12866, section 202 of Department will formally determine the Unfunded Mandates Reform Act of 13. Effect of the Regulation on State whether further changes are necessary 1995 (Pub. L. 104–4) and the Regulatory Laws (former § 121.12) six months and 12 months after the Flexibility Act (RFA) (Pub. L. 96–354). changes to allocation policies made after The inclusion of § 121.12 in the 1998 Executive Order 12866 directs agencies the initial reviews go into effect. regulation was intended to be consonant to assess costs and benefits of available Finally, as discussed above, we have with longstanding Constitutional regulatory alternatives and, when given the OPTN additional flexibility principles regarding the relationship regulation is necessary, to select with respect to performance indicators, between the Federal and State regulatory approaches that maximize including waiting times, in response governments. It reflected the HHS belief benefits. The Unfunded Mandates both to comments received and the IOM that Congress intended the statutory Reform Act of 1995 also requires that report. scheme it established under NOTA to agencies prepare an assessment of The Department wishes to emphasize, result ‘‘in the nationwide distribution of anticipated costs and benefits before however, that these changes are not organs equitably among transplant proposing any rule that may mandate an intended to limit the ability of the patients.’’ Section 372(b)(2)(D) of the annual expenditure by State, local, or OPTN to address special situations such Public Heath Service Act. Nevertheless, tribal governments of $100 million or as the unique needs of young children. because the Department views this more. result as flowing from the statutory Under the Regulatory Flexibility Act 10. Department of Veterans Affairs scheme, the section of the regulation (5 U.S.C. 601–612), if an action has a Hospitals articulating the Department’s views on significant economic effect on a The term ‘‘Dean’s Committee’’ has the matter is unnecessary as a legal substantial number of small businesses, been deleted from § 121.9(a)(3), as this matter. Accordingly, § 121.12 has been the Secretary must specifically consider is not a term currently used by the removed. the effects on small business entities Department of Veterans Affairs. and analyze regulatory options that Currently, the Department of Veterans 14. Advisory Committee on Organ could lessen the impact of the rule. Affairs, Veterans Health Administration, Transplantation Section 1102(b) of the Social Security designates specific VA medical centers The Department intends to implement Act requires us to prepare a regulatory to carry out organ transplantation. To the recommendation of the IOM, as impact analysis for any regulation that cover the possibility that transplants discussed above, to create an may have a significant impact on the may also be carried out in other Federal independent, multidisciplinary operations of a substantial number of hospitals, as well as those owned and scientific advisory board which will small rural hospitals. VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 56658 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations The amendatory language set forth in a. Remove the definition for the § 121.3 The OPTN. this document makes no changes that ‘‘National list’’. (a) Organization of the OPTN. (1) The have a significant economic effect on b. Amend the definition of ‘‘OPTN OPTN shall establish a Board of State, local or tribal governments, computer match program’’ by revising Directors of whatever size the OPTN hospitals or patients; therefore, we the words ‘‘national list’’ to read determines appropriate. The Board of certify that no additional regulatory ‘‘waiting list’’. Directors shall include: analysis is required. We have also c. Amend the definition of ‘‘Organ’’ (i) Approximately 50 percent concluded, based on the findings of the by removing the words ‘‘and for the transplant surgeons or transplant Institute of Medicine and the General purpose of the Scientific Registry, the physicians; Accounting Office under section 213(b), term also includes bone marrow’’. (ii) At least 25 percent transplant discussed earlier in this Preamble, and d. Amend the definition of ‘‘Organ candidates, transplant recipients, organ the Secretary certifies, that this procurement organization’’ by revising donors and family members. These amendatory language would not have a the words ‘‘Section 1138(b)’’ to read members should represent the diversity significant economic impact on a ‘‘section 1138(b)’’. of the population of transplant substantial number of small entities; e. Amend the definition of ‘‘Organ candidates, transplant recipients, organ therefore, a regulatory flexibility procurement and transplantation donors and family members served by analysis is not required. network or OPTN’’ by revising the We are also not preparing a rural the OPTN including, to the extent words ‘‘Section 372’’ to read ‘‘section practicable, the minority and gender impact statement since we have 372’’. determined, and the Secretary certifies, diversity of this population. These f. Amend the definition of ‘‘Scientific members shall not be employees of, or that this amendatory language would Registry’’ by revising the words not have a significant impact on the have a similar relationship with OPOs, ‘‘Section 373’’ to read ‘‘section 373’’. transplant centers, voluntary health operations of a substantial number of g. Amend the definition of small rural hospitals. organizations, transplant coordinators, ‘‘Transplant candidate’’ by revising the histocompatibility experts, or other non- The earlier analyses from the April 2, words national list’’ to read ‘‘waiting 1998, final rule remain applicable to physician transplant professionals; list’’. however, the Board may waive this that rule and are not altered by these h. Add a definition for ‘‘Waiting list’’ amendments. requirement for not more than 50 in alphabetical order. percent of these members; and The addition reads as follows: List of Subjects in 42 CFR Part 121 (iii) Representatives of OPOs, Health care, Hospitals, Organ § 121.2 Definitions. transplant hospitals, voluntary health transplantation, Reporting and * * * * * associations, transplant coordinators, recordkeeping requirements. Waiting list means the OPTN histocompatibility experts, non- Dated: October 13, 1999. computer-based list of transplant physician transplant professionals, and the general public. Claude Earl Fox, candidates. (2) The Board of Directors shall elect Administrator, Health Resources and Services 4. Amend § 121.3 as follows: Administration. a. Revise the heading of paragraph (a). an Executive Committee from the membership of the Board. The Approved: October 15, 1999. b. Revise paragraph (a)(1). c. Remove paragraph (a)(2). Executive Committee shall include at Donna E. Shalala, d. Remove paragraph (a)(3). least one general public member, one Secretary. e. Remove paragraph (a)(4). OPO representative, approximately 50 Accordingly, 42 CFR part 121 is f. Remove the heading of paragraph percent transplant surgeons and amended as follows: (b). transplant physicians, and at least 25 g. Redesignate paragraph (b)(1) as percent transplant candidates, PART 121ÐORGAN PROCUREMENT paragraph (a)(2) and revise it. transplant recipients, organ donors, and AND TRANSPLANTATION NETWORK h. Redesignate paragraph (b)(2) as family members. 1. The authority citation for part 121 paragraph (a)(3) and amend the newly * * * * * is revised to read as follows: designated paragraph (a)(3) by removing (d) Effective date. The organization Authority: Sections 215, 371–376 of the the paragraph heading. designated by the Secretary as the OPTN Public Health Service Act (42 U.S.C. 216, i. Redesignate paragraph (b)(3) as shall have until June 30, 2000, or six 273–274d); sections 1102, 1106, 1138 and paragraph (a)(4) and amend newly months from its initial designation as 1871 of the Social Security Act (42 U.S.C. designated paragraph (a)(4) by removing the OPTN, whichever is later, to meet 1302, 1306, 1320b–8 and 1395hh). the paragraph heading. the requirements of this section, except 2. Paragraph (b) of § 121.1 is revised j. In newly designated paragraph that the Secretary may extend such to read as follows: (a)(4)(ii), revise the term ‘‘potential period for good cause. transplant candidates’’ to read 5. Amend § 121.4 as follows: § 121.1 Applicability. ‘‘transplant candidates, transplant a. Revise paragraph (a)(3)(i). * * * * * recipients, organ donors and family b. Revise paragraph (a)(3)(ii). members’’. (b) In accordance with section 1138 of c. Revise paragraph (b)(2). the Social Security Act, hospitals in k. Remove paragraph (b)(4). which organ transplants are performed l. Redesignate paragraph (c) as d. Revise paragraph (c). and which participate in the programs paragraph (b). e. Revise paragraph (d). under titles XVIII or XIX of the Social m. Redesignate paragraph (d) as f. Amend paragraph (e) introductory Security Act, and organ procurement paragraph (c) and revise the word text by adding the word ‘‘shall’’ after the organizations designated under section ‘‘Status’’ in the heading to read ‘‘status’’. words ‘‘implement policies and’’, and 1138(b) of the Social Security Act, are n. Redesignate paragraph (e) as by revising the word ‘‘them.’’ in subject to the requirements of this part. paragraph (d) and revise it. paragraph (e)(1) to read ‘‘them; and’’. 3. Amend § 121.2 as follows: The revisions read as follows: The revisions read as follows: VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56659 § 121.4. OPTN policies: Secretarial review The Secretary will publish lists of OPTN § 121.7 [Amended] and appeals. policies in the Federal Register, 8. Paragraph (d) of § 121.7 is amended (a) * * * indicating which ones are enforceable by revising the words ‘‘paragraph (b) of (3) * * * under § 121.10 or subject to potential this section’’ to read ‘‘paragraph (b)(2) of (i) Ensuring that payment of the sanctions of section 1138 of the Social this section’. registration fee is not a barrier to listing Security Act. The OPTN shall also 9. Revise § 121.8 to read as follows: for patients who are unable to pay the continuously maintain OPTN policies fee; for public access on the Internet, § 121.8 Allocation of organs. (ii) Procedures for transplant hospitals including current and proposed (a) Policy development. The Board of to make reasonable efforts to obtain policies. Directors established under § 121.3 shall from all available sources, financial (d) Any interested individual or entity develop, in accordance with the policy resources for patients unable to pay may submit to the Secretary in writing development process described in such that these patients have an critical comments related to the manner § 121.4, policies for the equitable opportunity to obtain a transplant and in which the OPTN is carrying out its allocation of cadaveric organs among necessary follow-up care; duties or Secretarial policies regarding potential recipients. Such allocation * * * * * the OPTN. Any such comments shall policies: (1) Shall be based on sound medical (b) * * * include a statement of the basis for the judgment; (2) Provide to the Secretary, at least 60 comments. The Secretary will seek, as (2) Shall seek to achieve the best use days prior to their proposed appropriate, the comments of the OPTN on the issues raised in the comments of donated organs; implementation, proposed policies it (3) Shall preserve the ability of a recommends to be enforceable under related to OPTN policies or practices. Policies or practices that are the subject transplant program to decline an offer of § 121.10 (including allocation policies). an organ or not to use the organ for the These policies will not be enforceable of critical comments remain in effect during the Secretary’s review, unless the potential recipient in accordance with until approved by the Secretary. The § 121.7(b)(4)(d) and (e); Board of Directors shall also provide to Secretary directs otherwise based on possible risk to the health of patients or (4) Shall be specific for each organ the Secretary, at least 60 days prior to type or combination of organ types to be their proposed implementation, to public safety. The Secretary will consider the comments in light of the transplanted into a transplant candidate; proposed policies on such other matters (5) Shall be designed to avoid wasting as the Secretary directs. The Secretary National Organ Transplant Act and the regulations under this part and may organs, to avoid futile transplants, to will refer significant proposed policies promote patient access to to the Advisory Committee on Organ consult with the Advisory Committee on Organ Transplantation established transplantation, and to promote the Transplantation established under efficient management of organ § 121.12, and publish them in the under § 121.12. After this review, the Secretary may: placement; Federal Register for public comment. (6) Shall be reviewed periodically and The Secretary also may seek the advice (1) Reject the comments; (2) Direct the OPTN to revise the revised as appropriate; of the Advisory Committee on Organ (7) Shall include appropriate Transplantation established under policies or practices consistent with the Secretary’s response to the comments; procedures to promote and review § 121.12 on other proposed policies, and compliance including, to the extent publish them in the Federal Register for or (3) Take such other action as the appropriate, prospective and public comment. The Secretary will Secretary determines appropriate. retrospective reviews of each transplant determine whether the proposed program’s application of the policies to * * * * * policies are consistent with the National patients listed or proposed to be listed Organ Transplant Act and this part, § 121.5 [Amended] at the program; and taking into account the views of the 6. Amend § 121.5 as follows: (8) Shall not be based on the Advisory Committee and public a. In paragraph (a), add the words‘‘, candidate’s place of residence or place comments. Based on this review, the consistent with the OPTN’s criteria of listing, except to the extent required Secretary may provide comments to the under § 121.8(b)(1),’’ after the word by paragraphs (a)(1)–(5) of this section. OPTN. If the Secretary concludes that a ‘‘individuals’’. (b) Allocation performance goals. proposed policy is inconsistent with the b. In paragraph (b), revise the words Allocation policies shall be designed to National Organ Transplant Act or this ‘‘national list’’ to read ‘‘waiting list’’. achieve equitable allocation of organs part, the Secretary may direct the OPTN c. In paragraph (c), revise the words among patients consistent with to revise the proposed policy consistent ‘‘national list’’ to read ‘‘waiting list’’ and paragraph (a) of this section through the with the Secretary’s direction. If the add the phrase ‘‘calculated to cover following performance goals: OPTN does not revise the proposed (together with contract funds awarded (1) Standardizing the criteria for policy in a timely manner, or if the by the Secretary) the reasonable costs of determining suitable transplant Secretary concludes that the proposed operating the OPTN and shall be’’ after candidates through the use of minimum revision is inconsistent with the the words ‘‘amount of such fee shall be’. criteria (expressed, to the extent National Organ Transplant Act or this 7. Paragraph (b) of § 121.6 is revised possible, through objective and part, the Secretary may take such other to read as follows: measurable medical criteria) for adding action as the Secretary determines individuals to, and removing candidates appropriate, but only after additional § 121.6 Organ procurement. from, organ transplant waiting lists; consultation with the Advisory * * * * * (2) Setting priority rankings Committee on the proposed action. (b) HIV. The OPTN shall adopt and expressed, to the extent possible, (c) The OPTN Board of Directors shall use standards for preventing the through objective and measurable provide the membership and the acquisition of organs from individuals medical criteria, for patients or Secretary with copies of its policies as known to be infected with human categories of patients who are medically they are adopted, and make them immunodeficiency virus. suitable candidates for transplantation available to the public upon request. * * * * * to receive transplants. These rankings VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 56660 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations shall be ordered from most to least (3) For each organ-specific allocation disadvantaged by the change in the medically urgent (taking into account, policy, the OPTN shall provide to the policies. in accordance with paragraph (a) of this Secretary data to assist the Secretary in (e) Deadlines for initial reviews. (1) section, and in particular in accordance assessing organ procurement and The OPTN shall conduct an initial with sound medical judgment, that life allocation, access to transplantation, the review of existing allocation policies sustaining technology allows alternative effect of allocation policies on programs and, except as provided in paragraph approaches to setting priority ranking performing different volumes of (e)(2) of this section, no later than for patients). There shall be a sufficient transplants, and the performance of November 16, 2000 shall transmit initial number of categories (if categories are OPOs and the OPTN contractor. Such revised policies to meet the used) to avoid grouping together data shall be required on performance requirements of paragraphs (a) and (b) of patients with substantially different by organ and status category, including this section, together with supporting medical urgency; program-specific data, OPO-specific documentation to the Secretary for (3) Distributing organs over as broad data, data by program size, and data review in accordance with § 121.4. a geographic area as feasible under aggregated by organ procurement area, (2) No later than February 15, 2000 paragraphs (a)(1)–(5) of this section, and OPTN region, the Nation as a whole, the OPTN shall transmit revised policies in order of decreasing medical urgency; and such other geographic areas as the and supporting documentation for liver and Secretary may designate. Such data allocation to meet the requirements of (4) Applying appropriate performance shall include the following measures of paragraphs (a) and (b) of this section to indicators to assess transplant program inter-transplant program variation: risk- the Secretary for review in accordance performance under paragraphs (c)(2)(i) adjusted total life-years pre-and post- with § 121.4. The OPTN may transmit and (c)(2)(ii) of this section and transplant, risk-adjusted patient and these materials without seeking further reducing the inter-transplant program graft survival rates following public comment under § 121.4(b). (f) Secretarial review of policies, variance to as small as can reasonably transplantation, risk-adjusted waiting performance indicators, and transition be achieved in any performance time and risk-adjusted transplantation patient protections. The OPTN’s indicator under paragraph (c)(2)(iii) of rates, as well as data regarding patients transmittal to the Secretary of proposed this section as the Board determines whose status or medical urgency was allocation policies and performance appropriate, and under paragraph misclassified and patients who were indicators shall include such supporting (c)(2)(iv) of this section. If the inappropriately kept off a waiting list or material, including the results of model- performance indicator ‘‘waiting time in retained on a waiting list. Such data shall cover such intervals of time, and based computer simulations, as the status’’ is used for allocation purposes, Secretary may require to assess the the OPTN shall seek to reduce the inter- be presented using confidence intervals or other measures of variance, as may be likely effects of policy changes and as transplant program variance in this are necessary to demonstrate that the indicator, as well as in other selected required to avoid spurious results or erroneous interpretation due to small proposed policies comply with the performance indicators, to as small as performance indicators and transition can reasonably be achieved, unless to do numbers of patients covered. (d) Transition patient protections.— procedures of paragraphs (c) and (d) of so would result in transplanting less (1) General. When the OPTN revises this section. medically urgent patients or less organ allocation policies under this (g) Variances. The OPTN may medically urgent patients within a section, it shall consider whether to develop, in accordance with § 121.4, category of patients. adopt transition procedures that would experimental policies that test methods (c) Allocation performance indicators. treat people on the waiting list and of improving allocation. All such (1) Each organ-specific allocation policy awaiting transplantation prior to the experimental policies shall be shall include performance indicators. adoption or effective date of the revised accompanied by a research design and These indicators must measure how policies no less favorably than they include data collection and analysis well each policy is: would have been treated under the plans. Such variances shall be time (i) Achieving the performance goals previous policies. The transition limited. Entities or individuals objecting set out in paragraph (b) of this section; procedures shall be transmitted to the to variances may appeal to the Secretary and Secretary for review together with the under the procedures of § 121.4. (ii) Giving patients, their families, revised allocation policies. (h) Directed donation. Nothing in this their physicians, and others timely and (2) Special rule for initial revision of section shall prohibit the allocation of accurate information to assess the liver allocation policies. When the an organ to a recipient named by those performance of transplant programs. OPTN transmits to the Secretary its authorized to make the donation. (2) Performance indicators shall initial revision of the liver allocation 10. Amend § 121.9 as follows: include: policies, as directed by paragraph (e)(1) a. Amend paragraph (a)(1) by (i) Baseline data on how closely the of this section, it shall include transition removing the words ‘‘and Medicaid’’ results of current allocation policies procedures that, to the extent feasible, after the word ‘‘Medicare’’. approach the performance goals treat each individual on the waiting list b. Amend paragraph (a)(2)(vi) by established under paragraph (b) of this and awaiting transplantation on October adding a comma after the word section; 20, 1999 no less favorably than he or she ‘‘radiology’’. (ii) With respect to any proposed would have been treated had the revised c. Amend paragraph (a)(2)(vii) by change, the amount of projected liver allocation policies not become adding a comma after the word improvement in approaching the effective. These transition procedures ‘‘recipients’’. performance goals established under d. Revise paragraph (a)(3). may be limited in duration or applied The revision reads as follows: paragraph (b) of this section; only to individuals with greater than (iii) Such other indicators as the average medical urgency if this would § 121.9 Designated transplant program Board may propose and the Secretary significantly improve administration of requirements. approves; and the list or if such limitations would be (a) * * * (iv) Such other indicators as the applied only after accommodating a (3) Be a transplant program in a Secretary may require. substantial preponderance of those Department of Veterans Affairs, VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations 56661 Department of Defense, or other Federal (iv) Make available to the public Such data shall also include such other hospital. timely and accurate program-specific cost or performance information as the * * * * * information on the performance of Secretary may specify, including but not transplant programs. This shall include limited to transplant program-specific § 121.10 [Amended] free dissemination over the Internet, and information on waiting time within 11. Amend paragraph (c)(1) of shall be presented, explained, and medical status, organ wastage, and § 121.10 by removing the word ‘‘or’’ organized as necessary to understand, refusal of organ offers. These data shall before the words ‘‘termination of an interpret, and use the information also be presented no more than six OPO’s reimbursement’’, and by adding accurately and efficiently. These data months later than the period to which the words ‘‘, or such other compliance shall be updated no less frequently than they apply; or enforcement measures contained in every six months (or such longer period * * * * * policies developed under § 121.4’’ after as the Secretary determines would 13. § 121.12 is revised to read as the words ‘‘Social Security Act’’. provide more useful information to follows: 12. Amend § 121.11 as follows: patients, their families, and their a. Revise paragraph (a)(1)(i) by physicians), and shall include risk- § 121.12 Advisory Committee on Organ removing the word ‘‘national’’ after the adjusted probabilities of receiving a Transplantation. word ‘‘computerized’’. transplant or dying while awaiting a The Secretary will establish, b. Revise paragraph (b)(1)(iv). transplant, risk-adjusted graft and consistent with the Federal Advisory c. Amend paragraph (b)(2) by adding patient survival following the Committee Act, the Advisory Committee the words ‘‘costs and’’ before the word transplant, and risk-adjusted overall on Organ Transplantation. The ‘‘performance’’. survival following listing for such The revision reads as follows: Secretary may seek the comments of the intervals as the Secretary shall Advisory Committee on proposed OPTN prescribe. These data shall include § 121.11 Record maintenance and policies and such other matters as the reporting requirements. confidence intervals or other measures Secretary determines. * * * * * that provide information on the extent (b) * * * to which chance may influence [FR Doc. 99–27456 Filed 10–18–99; 9:46 am] (1) * * * transplant program-specific results. BILLING CODE 4160±15±P VerDate 12-OCT-99 13:29 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR4.XXX pfrm07 PsN: 20OCR4 eDt 2OT9 64 c 9 99Jt100 O000Fm001Ft41 ft41 :F\M2OD.X fm2PsN:20OCD0 pfrm02 E:\FR\FM\20OCD0.XXX Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt190000 16:49Oct19, 1999 VerDate 12-OCT-99 federal register October 20,1999 Wednesday Colombia Narcotics TraffickersCenteredin of EmergencyWithRespecttoSignificant Notice ofOctober19,1999ÐContinuation Counts Week,1999 Proclamation 7242ÐNationalCharacter The President Part VII 56663 VerDate 12-OCT-99 16:49 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4717 Sfmt 4717 E:\FR\FM\20OCD0.XXX pfrm02 PsN: 20OCD0 56665 Federal Register Presidential Documents Vol. 64, No. 202 Wednesday, October 20, 1999 Title 3— Proclamation 7242 of October 16, 1999 The President National Character Counts Week, 1999 By the President of the United States of America A Proclamation The character of our citizens has enriched every aspect of our national life and has set an example of civic responsibility for people around the world. The diligence and determination that are part of our Nation’s work ethic have strengthened our economy, and the firm convictions of our spir- itual leaders have helped guide our communities, fostering unity, compas- sion, and humility. In this dynamic time of unparalleled opportunity and possibility, our children will encounter a variety of new challenges that will test the strength of their character and convictions. As the dawn of the new millennium fast approaches, we must work together—parents, public officials, educators, entertainers, and business and religious leaders—to impart to our youth the core values they need to be good citizens. We know that parents play a critical role in imparting moral values to their children. But in today’s complex and fast-paced society, when parents must spend longer hours at work and more families are headed by a single parent, parents have less time to spend with their children—an average decrease of 22 hours a week over the past 30 years, according to a report released this spring by my Council of Economic Advisers. We must seek innovative ways to address this problem and to promote stronger families, including greater flexibility in paid work hours, more affordable child care, and increased support for low-income families. My Administration is committed to providing families with the tools they need to fulfill their responsibilities at home and at work. Our agenda includes tripling our investment in after-school programs through the 21st Century Community Learning Center program and a historic initiative to make child care better, safer, and more affordable for working families. We are also working to expand the Family and Medical Leave Act to cover more workers and to allow leave for more parental activities, such as parent-teacher con- ferences and routine doctor visits. While Americans are striving to seize the opportunities presented by this exciting new era, we must continue to preserve the fundamental ideals and ethics that have sustained our country for more than two centuries. By sustaining these shared values and passing them on to our children, we can realize our common hope for a more just and honorable society and a brighter future for the generations to come. 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 October 17 through October 23, 1999, as National Character Counts Week. I call upon the people of the United States, government officials, educators, religious, community, and business leaders, and the States to commemorate this week with appro- priate ceremonies, activities, and programs. VerDate 12-OCT-99 16:49 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4705 Sfmt 4705 E:\FR\FM\20OCD0.XXX pfrm02 PsN: 20OCD0 56666 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Presidential Documents IN WITNESS WHEREOF, I have hereunto set my hand this sixteenth day of October, in the year of our Lord nineteen hundred and ninety-nine, and of the Independence of the United States of America the two hundred and twenty-fourth. œ– [FR Doc. 99–27644 Filed 10–19–99; 11:37 am] Billing code 3195–01–P VerDate 12-OCT-99 16:49 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4705 Sfmt 4705 E:\FR\FM\20OCD0.XXX pfrm02 PsN: 20OCD0 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Presidential Documents 56667 Presidential Documents Notice of October 19, 1999 Continuation of Emergency With Respect to Significant Nar- cotics Traffickers Centered in Colombia On October 21, 1995, by Executive Order 12978, I declared a national emergency to deal with the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States constituted by the actions of significant foreign narcotics traffickers centered in Colombia, and the unparalleled violence, corruption, and harm that they cause in the United States and abroad. The order blocks all property and interests in property of foreign persons listed in an Annex to the order, as well as foreign persons determined to play a significant role in international narcotics trafficking centered in Colombia, to materially assist in, or provide financial or technological support for or goods or services in support of, the narcotics trafficking activities of persons designated in or pursuant to the order, or to be owned or controlled by, or to act for or on behalf of, persons designated in or pursuant to the order. The order also prohibits any transaction or dealing by United States persons or within the United States in such property or interests in property. Because the activities of significant narcotics traffickers centered in Colombia continue to threaten the national security, foreign policy, and economy of the United States and to cause unparalleled violence, corruption, and harm in the United States and abroad, the national emergency declared on October 21, 1995, and the measures adopted pursuant thereto to respond to that emergency, must continue in effect beyond October 21, 1999. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing the national emergency for 1 year with respect to significant narcotics traffickers centered in Colombia. This notice shall be published in the Federal Register and transmitted to the Congress. œ– THE WHITE HOUSE, October 19, 1999. [FR Doc. 99–27656 Filed 10–19–99; 12:16 pm] Billing code 3195–01–P VerDate 12-OCT-99 16:48 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00001 Fmt 4790 Sfmt 4790 E:\FR\FM\20OCO0.XXX pfrm02 PsN: 20OCO0 i Reader Aids Federal Register Vol. 64, No. 202 Wednesday, October 20, 1999 CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING OCTOBER Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since the revision date of each title. Laws 523±5227 3 CFR EO 13138)...... 53879 12876 (Amended by Presidential Documents Proclamations: EO 13138)...... 53879 Executive orders and proclamations 523±5227 4865 (See 12882 (Amended by The United States Government Manual 523±5227 Memorandum of EO 13138)...... 53879 April 16, 1999) ...... 53883 12888 (See EO 4865 (See Other Services 13140) ...... 55115 Memorandum of 12900 (Amended by Electronic and on-line services (voice) 523±4534 September 24, EO 13138)...... 53879 Privacy Act Compilation 523±3187 1999) ...... 53883 12905 (Amended by Public Laws Update Service (numbers, dates, etc.) 523±6641 6763 (See EO 13138)...... 53879 TTY for the deaf-and-hard-of-hearing 523±5229 Proclamation 12936 (See EO 7235) ...... 55611 13140) ...... 55115 7227...... 53877 12960 (See EO ELECTRONIC RESEARCH 7228...... 54193 13140) ...... 55115 World Wide Web 7229...... 54195 12961 (Revoked by 7230...... 54197 EO 13138)...... 53879 Full text of the daily Federal Register, CFR and other 7231...... 54755 12978 (See Notice of publications: 7232...... 54757 October 19, 1999)...... 56667 http://www.access.gpo.gov/nara 7233...... 54759 12994 (Amended by Federal Register information and research tools, including Public 7234...... 55405 EO 13138)...... 53879 Inspection List, indexes, and links to GPO Access: 7235...... 55611 13010 (Revoked in 7236...... 55613 part by EO http://www.nara.gov/fedreg 7237...... 55615 13138) ...... 53879 E-mail 7238...... 55617 13017 (Revoked by 7239...... 55619 EO 13138)...... 53879 PENS (Public Law Electronic Notification Service) is an E-mail 7240...... 56393 13021 (Amended by service for notification of recently enacted Public Laws. To 7241...... 56397 EO 13138)...... 53879 subscribe, send E-mail to 7242...... 56665 13037 (Revoked by [email protected] Executive Orders: EO 13138)...... 53879 with the text message: 11145 (Amended by 13038 (Revoked by EO 13138)...... 53879 EO 13138)...... 53879 subscribe PUBLAWS-L your name 11183 (Amended by 13050 (Revoked by Use [email protected] only to subscribe or unsubscribe to EO 13138)...... 53879 EO 13138)...... 53879 PENS. We cannot respond to specific inquiries. 11287 (Amended by 13062 (Superseded in part by EO Reference questions. Send questions and comments about the EO 13138)...... 53879 13138) ...... 53879 Federal Register system to: 12131 (Amended by EO 13138)...... 53879 13086 (See EO [email protected] 12196 (Amended by 13140) ...... 55115 The Federal Register staff cannot interpret specific documents or EO 13138)...... 53879 13115 (Amended by regulations. 12216 (Amended by EO 13138)...... 53879 EO 13138)...... 53879 13138...... 53879 13139...... 54175 FEDERAL REGISTER PAGES AND DATE, OCTOBER 12345 (Amended by EO 13138)...... 53879 13140...... 55115 53179±53580...... 1 12367 (Amended by Administrative Orders: 53581±53882...... 4 EO 13138)...... 53879 Memorandums: April 16, 1999 ...... 53883 53883±54198...... 5 12382 (Amended by EO 13138)...... 53879 September 24, 1999...... 55809 54199±54498...... 6 12473 (Amended by Notice of October 19, 54499±54758...... 7 EO 13140)...... 55115 1999 ...... 56667 54759±55114...... 8 12478 (See EO Presidential Determinations: 55115±55404...... 12 13140 ...... 55115 No. 99±38 of 55405±55614...... 13 12550 (See EO September 21, 55615±55808...... 14 13140) ...... 55115 1999 ...... 53573 55809±56130...... 15 12586 (See EO No. 99±39 of 56131±56250...... 18 13140) ...... 55115 September 21, 56251±56398...... 19 12708 (See EO 1999 ...... 53575 56399±56668...... 20 13140) ...... 55115 No. 99±40 of 12767 (See EO September 21, 13140) ...... 55115 1999 ...... 53577 12852 (Revoked by No. 99±41 of EO 13138)...... 53879 September 22, 12871 (Amended by 1999 ...... 53579 VerDate 12-OCT-99 18:35 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\20OCCU.XXX pfrm01 PsN: 20OCCU ii Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Reader Aids No. 99±42 of 9 CFR 93...... 53558 422...... 55216 September 29, 3...... 56142 97 ...... 55132, 55133, 55135 718...... 54966 1999 ...... 54499 77...... 56399 Proposed Rules: 722...... 54966 No. 99±43 of 94...... 55812, 55813 Ch. 1 ...... 56275 725...... 54966 September 30, 303...... 56400 39 ...... 53275, 53951, 53953, 726...... 54966 1999 ...... 54501 304...... 56400 54227, 54229, 54230, 54232, 727...... 54966 No. 99±44 of 307...... 56400 54234, 54237, 54239, 54240, 21 CFR September 30, 308...... 56400 54242, 54246, 54248, 54249, Ch. II ...... 54794 1999 ...... 54503 312...... 56400 54580, 54582, 54584, 54587, 3...... 56441 No. 99±45 of 314...... 56400 54589, 54591, 54594, 54596, September 30, 54598, 54795, 54797, 54799, 5...... 56441 317...... 53186 10...... 56441 1999 ...... 53505 327...... 56400 54801, 54804, 54808, 54811, 54815, 54818, 54822, 54826, 20...... 56441 331...... 56400 25...... 56454 5 CFR 350...... 56400 54829, 54833, 55177, 55181, 55184, 55188, 55191, 55195, 50...... 54180, 56441 532...... 53179 381...... 53186, 56400 56...... 56441 831...... 53581 416...... 56400 55196, 55197, 55200, 55204, 55207, 55211, 55440, 55636, 58...... 56441 842...... 53581 173...... 56172 10 CFR 55638, 55640, 55642, 55644, 870...... 54761 178...... 53925 56276, 56279, 56281 1201...... 54507 20...... 54543, 55524 207...... 56441 71...... 53956, 53957 50...... 53582 310...... 56441 193...... 53958 7 CFR 72...... 53582, 56114 312...... 54180, 56441 450...... 54448 210...... 55407 431...... 54114 316...... 56441 215...... 55407 600...... 56418 15 CFR 558...... 53926 600...... 56441 220...... 55407 Proposed Rules: 774...... 54520 2...... 55176 601...... 56441 235...... 55407 902...... 54732, 55821 607...... 56441 245...... 55407 20...... 56274 2014...... 56429 301...... 55811 50...... 53270, 56476 610...... 56441 Proposed Rules: 735...... 54508 640...... 56441 30...... 53861 915...... 53181 11 CFR 660...... 56441 732...... 53854 923...... 53885 110...... 55125 878...... 53927 740...... 53854 944...... 53181 900...... 53195 Proposed Rules: 743...... 53854 984...... 56131 Proposed Rules: 100...... 55440 748...... 53854 997...... 56133 102...... 55440 5...... 53281 750...... 53854 25...... 53281 998...... 56133 104...... 55440 752...... 53854 999...... 56133 314...... 53960 12 CFR 758...... 53854 500...... 53281 1000...... 53885 762...... 53854 1001...... 53885 204...... 53617 510...... 53281 772...... 53854 558...... 53281 1002...... 53885 262...... 53188 601...... 53960 1004...... 53885 602...... 54511 17 CFR 880...... 53294 1005...... 53885 612...... 55621 210...... 53900 1006...... 53885 614...... 55621 228...... 53900 22 CFR 1007...... 53885 618...... 55621 229...... 53900 Ch. V...... 54538 1012...... 53885 741...... 56148 230...... 53900 1013...... 53885 40...... 55417 910...... 55125 232...... 56430 42...... 55417 1030...... 53885 Proposed Rules: 239...... 53900, 56430 1032...... 53885 171...... 54538 714...... 55866 240...... 53900 514...... 53928 1033...... 53885 724...... 55871 249...... 53900, 56430 1036...... 53885 Proposed Rules: 745...... 55871 259...... 56430 194...... 53632 1040...... 53885 1750...... 56274 260...... 53900 1044...... 53885 269...... 56430 24 CFR 1046...... 53885 13 CFR 274...... 56430 1049...... 53885 200...... 53930, 55828 Proposed Rules: Proposed Rules: 1050...... 53885 203...... 56108 121...... 55873 210...... 55648 1064...... 53885 234...... 56108 228...... 55648 882...... 53868 1065...... 53885 14 CFR 229...... 55648 888...... 53450 1068...... 53885 25...... 54761 240...... 55648 1076...... 53885 36...... 55598 25 CFR 1079...... 53885 39 ...... 53189, 53191, 53193, 18 CFR 516...... 54541 1106...... 53885 53620, 53621, 53623, 53625, 2...... 54522 1124...... 53885 Proposed Rules: 54199, 54200, 54202, 54512, 157...... 54522 151...... 55878 1126...... 53885 54513, 54515, 54517, 54518, 284...... 54522 1131...... 53885 54763, 54767, 54769, 54770, 380...... 54522 26 CFR 1134...... 53885 54773, 54774, 55407, 55409, 385...... 54522, 56172 1...... 55137 1135...... 53885 55411, 55413, 55414, 55416, Proposed Rules: 301...... 56246 1137...... 53885 55621, 55624, 55815, 56151, 385...... 53959 1138...... 53885 Proposed Rules: 56158, 56158, 56159, 56161, 1...... 54836, 56246 1139...... 53885 56163, 56420, 56422, 56424, 19 CFR 25...... 56179 1755...... 53886 56426 24...... 56433 2003...... 56399 71 ...... 53627, 53887, 53888, 122...... 53627 27 CFR 3570...... 56399 53889, 53890, 53891, 53892, 159...... 56433 1...... 54776 53893, 53894, 53895, 53896, 174...... 56433 47...... 55625 8 CFR 53898, 53899, 54203, 54204, 55...... 55625 3...... 56135 54205, 54206, 55131, 55815, 20 CFR Proposed Rules: 55816, 55817, 55818, 55819, Proposed Rules: 28 CFR Ch. 1 ...... 54794 55820, 56251, 56428, 56429 404...... 55214 Ch. I ...... 54794 VerDate 12-OCT-99 18:35 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\20OCCU.XXX pfrm01 PsN: 20OCCU Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Reader Aids iii Proposed Rules: 55139, 55141, 55421, 55831 Proposed Rules: 97...... 53231 571...... 53872 61...... 53212 302...... 55074 101...... 53231 62...... 55141 303...... 55074 Proposed Rules: 29 CFR 63...... 56173 304...... 55074 54...... 53648 4044...... 55828 76...... 55834 305...... 55074 61...... 53648 81...... 55421 308...... 55102 69...... 53648 30 CFR 180 ...... 54218, 54777, 54779, 73 ...... 53655, 54268, 54269, 46 CFR 202...... 56454 55838, 56464 54270, 55222, 55223, 55452, 206...... 56454 201...... 55141 1...... 53220 55453 250...... 53195 261...... 56256, 56469 2...... 53220 76...... 54854 948...... 53200 262...... 56469 4...... 53220 950...... 53202 268...... 56469 10...... 53220, 53230 48 CFR Proposed Rules: 271 ...... 55142, 55153, 55629, 12...... 53230 Ch. 19 ...... 54538 250...... 53298 56173 15...... 53220 1...... 53264 901...... 55878 300...... 53213, 53629 27...... 56257 15...... 53264 904...... 56179 Proposed Rules: 31...... 53220 19...... 53264 915...... 54840 49...... 54851 34...... 53220 52...... 53264 946...... 54843 52 ...... 53303, 53973, 54600, 38...... 53220 209...... 55632 948...... 54845 54601, 54851, 55219, 55220, 52...... 53220 211...... 55632 55442, 55662, 55667, 55879, 53...... 53220 214...... 55632 32 CFR 56181 54...... 53220 237...... 53447 700...... 56062 76...... 55880 56...... 53220 252...... 55632 1800...... 53769 81...... 55442 57...... 53220 415...... 54963 Proposed Rules: 122...... 53304 58...... 53220 Proposed Rules: 199...... 56283 123...... 53304 59...... 53220 909...... 55453 806...... 56181 124...... 53304 61...... 53220 970...... 55453 130...... 53304 63...... 53220 1804...... 54270 33 CFR 131...... 53304 64...... 53220 1812...... 54270 100 ...... 53208, 53628, 55829, 132...... 53632 67...... 53220 1852...... 54270 55830 180...... 56477 68...... 53220 9903...... 56296 194...... 56185 69...... 53220 117 ...... 53209, 54776, 55137, 49 CFR 55419, 55831, 56252 197...... 53304 76...... 53220 165...... 55138, 55420 258...... 53976 91...... 53220 1...... 56270 95...... 53220 172...... 54730 Proposed Rules: 261...... 55443, 55880 98...... 53220 Ch. III ...... 56478 Ch. I ...... 56286 264...... 54604 105...... 53220 1002...... 53264 20...... 53970 271...... 55222, 55671 107...... 53220 1003...... 53264 100...... 54847, 54849 41 CFR 108...... 53220 1007...... 53264 117...... 55217 109...... 53220 1011...... 53264 165...... 54242, 54963 51-2...... 55841 118...... 53220 1012...... 53264 175...... 53971 51-5...... 55841 125...... 53220 1014...... 53264 181...... 56287 133...... 53220 1017...... 53264 183...... 56287 42 CFR 147...... 53220 1018...... 53264 207...... 55441 121...... 56650 151...... 53220 1019...... 53264 Proposed Rules: 153...... 53220 1021...... 53264 34 CFR 8...... 56294 160...... 53220 1034...... 53264 602...... 56612 57...... 54263 161...... 53220 1039...... 53264 58...... 54263 Proposed Rules: 162...... 53220 1100...... 53264 447...... 54263 75...... 54254 167...... 53220 1101...... 53264 36 CFR 43 CFR 169...... 53220 1103...... 53264 177...... 53220 1104...... 53264 13...... 56455 1820...... 53213 181...... 53220 1105...... 53264 Proposed Rules: 3500...... 53512 189...... 53220 1113...... 53264 217...... 59074, 56293 3510...... 53512 193...... 53220 1133...... 53264 219...... 59074, 56293 3520...... 53512 197...... 53220 1139...... 53264 3530...... 53512 37 CFR 199...... 53220 1150...... 53264 3540...... 53512 204...... 54782 1151...... 53264 3550...... 53512 Proposed Rules: Proposed Rules: 1152...... 53264 3560...... 53512 1...... 53772 5...... 53970 1177...... 53264 3...... 53772 3570...... 53512 1180...... 53264 5...... 53772 3800...... 53213 47 CFR 1184...... 53264 Proposed Rules: 10...... 53772 Ch. I...... 54561, 55671 Proposed Rules: 2800...... 55452 38 CFR 0 ...... 55161, 55425, 56269 71...... 55892 2880...... 55452 1...... 53231 661...... 54855 3...... 54206 44 CFR 13...... 53231 17...... 54207 20...... 54564 50 CFR Proposed Rules: 62...... 56174 22...... 53231, 54564 17 ...... 56582, 56590, 56596 20...... 53302 64...... 56256 64 ...... 53242, 53944, 54577, 216...... 53269 65 ...... 53931, 53933, 53936 55163, 55164, 56177 222...... 55858, 55860 39 CFR 67...... 53938, 53939 73 ...... 54224, 54225, 54783, 223 ...... 55434, 55858, 55860 776...... 56253 206...... 55158 54784, 54785, 54786, 55172, 600...... 54786 Proposed Rules: Proposed Rules: 55173, 55174, 55434 635 ...... 53949, 54577, 55633, 111...... 54255 67...... 53980, 53982 80...... 53231 56472 87...... 53231 648...... 54732, 55821 40 CFR 45 CFR 90...... 53231 660...... 54786, 56177 52 ...... 53210, 53931, 54559, 96...... 55843 95...... 53231 679 ...... 53630, 53950, 54225, VerDate 12-OCT-99 18:35 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4712 Sfmt 4712 E:\FR\FM\20OCCU.XXX pfrm01 PsN: 20OCCU iv Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Reader Aids 54578, 54791, 54792, 55438, 227...... 56297 55634, 55865, 56271, 56272, 648...... 55688 56473, 56474, 56475 660 ...... 54272, 55689, 56479 Proposed Rules: 679...... 53305, 56481 17 ...... 53655, 55892, 56297 216...... 56298 VerDate 12-OCT-99 18:35 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4712 Sfmt 4712 E:\FR\FM\20OCCU.XXX pfrm01 PsN: 20OCCU Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Reader Aids v REMINDERS Pyrithiobac sodium salt; COMMERCE DEPARTMENT New source performance The items in this list were published 10-20-99 National Oceanic and standards; comments editorially compiled as an aid INTERIOR DEPARTMENT Atmospheric Administration due by 10-29-99; published 8-30-99 to Federal Register users. National Park Service Fishery conservation and Air programs; approval and Inclusion or exclusion from National Park System: management: this list has no legal promulgation; State plans Glacier Bay National Park, Alaska; fisheries of significance. Exclusive Economic for designated facilities and AK; commercial fishing pollutants: activities; published 10-20- ZoneÐ California; comments due by 99 North Pacific groundfish; RULES GOING INTO 10-25-99; published 9-23- comments due by 10- EFFECT OCTOBER 20, NUCLEAR REGULATORY 99 1999 COMMISSION 29-99; published 10-14- 99 Air quality implementation Operators' licenses: plans; approval and Pollock; comments due by AGRICULTURE Initial examination promulgation; various 10-29-99; published 10- DEPARTMENT requirements; published 4- States: 20-99 Agricultural Marketing 23-99 California; comments due by Caribbean, Gulf, and South Service 10-25-99; published 9-24- TRANSPORTATION Atlantic fisheriesÐ Cherries (tart) grown inÐ DEPARTMENT 99 Pelagic sargassum habitat Michigan et al.; published 9- Connecticut; comments due Federal Aviation in South Atlantic; 20-99 by 10-28-99; published 9- Administration comments due by 10- 28-99 AGRICULTURE Airworthiness directives: 25-99; published 8-26- DEPARTMENT Airbus; published 9-15-99 99 Maryland; comments due by 10-25-99; published 9-23- Food and Nutrition Service Boeing; published 9-15-99 Northeastern United States 99 Child nutrition programs: Dassault; published 9-15-99 fisheriesÐ Massachusetts; comments National school lunch Northeast multispecies; Empresa Brasileira de due by 10-27-99; programÐ comments due by 10- Aeronautica S.A.; published 9-27-99 Technical amendments; published 9-15-99 28-99; published 9-13- published 9-20-99 99 New Hampshire; comments Saab; published 9-15-99 due by 10-29-99; Technical amendments; West Coast States and TREASURY DEPARTMENT published 9-29-99 correction; published Western Pacific Customs Service 10-13-99 fisheriesÐ Air quality implementation Financial and accounting plans; √A√approval and AGRICULTURE Pacific Coast groundfish; procedures: promulgation; various DEPARTMENT comments due by 10- States; air quality planning Customs duties, taxes, fees 25-99; published 10-8- Farm Service Agency purposes; designation of and interest; 99 Program regulations: underpayments and areas: Community facilities grant overpayments interest; COMMODITY FUTURES Colorado; comments due by program published 10-20-99 TRADING COMMISSION 10-25-99; published 9-24- Correction; published 10- Commodity Exchange Act: 99 20-99 COMMENTS DUE NEXT Electronic signatures by Hazardous waste program customers, participants, AGRICULTURE WEEK authorizations: DEPARTMENT and clients of registrants; Vermont; comments due by Rural Business-Cooperative comments due by 10-29- 10-25-99; published 9-24- AGRICULTURE Service 99; published 8-30-99 99 DEPARTMENT Program regulations: Foreign futures and options Hazardous waste: Agricultural Marketing transactions: Community facilities grant Land disposal restrictionsÐ Service Board of trade members; program Mercury-bearing wastes; Olive oil promotion, research, registration or exemption Correction; published 10- treatment standards; and information order; from registration; 20-99 comments due by 10- comments due by 10-25-99; clarification; comments AGRICULTURE 26-99; published 7-27- published 8-26-99 due by 10-25-99; DEPARTMENT 99 Referendum procedures; published 8-26-99 Rural Utilities Service Pesticides; tolerances in food, comments due by 10-25- Foreign firms acting as animal feeds, and raw Program regulations: 99; published 8-26-99 futures commission agricultural commodities: Community facilities grant Oranges, grapefruit, merchants or introducing program tangerines, and tangelos brokers; direct acceptance Desmedipham; comments Correction; published 10- grown inÐ of orders from U.S. due by 10-25-99; 20-99 Florida; comments due by customers without published 8-25-99 Correction; published 10- 10-27-99; published 9-27- registering with agency; Pyridate; comments due by 20-99 99 comments due by 10-25- 10-25-99; published 8-25- 99 ENVIRONMENTAL AGRICULTURE 99; published 8-26-99 PROTECTION AGENCY DEPARTMENT ENVIRONMENTAL Superfund program: Hazardous waste: Animal and Plant Health PROTECTION AGENCY National oil and hazardous Land disposal restrictionsÐ Inspection Service Air pollution; standards of substances contingency planÐ Wood preserving wastes, Hawaiian and territorial performance for new metal wastes, zinc quarantine notices: stationary sources: National priorities list micronutrient fertilizers, Baggage inspection for Small municipal waste update; comments due etc.; correction; domestic flights from combustion unitsÐ by 10-25-99; published published 10-20-99 Puerto Rico to U.S. Virgin Emission guidelines; 9-23-99 Pesticides; tolerances in food, Islands; comments due by comments due by 10- Toxic substances: animal feeds, and raw 10-29-99; published 8-30- 29-99; published 8-30- Inventory update rule; agricultural commodities: 99 99 amendments; comments VerDate 12-OCT-99 18:35 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4712 Sfmt 4711 E:\FR\FM\20OCCU.XXX pfrm01 PsN: 20OCCU vi Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Reader Aids due by 10-25-99; due by 10-29-99; TRANSPORTATION may be used in conjunction published 8-26-99 published 9-14-99 DEPARTMENT with ``P L U S'' (Public Laws FEDERAL Truth in lending (Regulation Coast Guard Update Service) on 202±523± COMMUNICATIONS Z): Anchorage regulations: 6641. This list is also COMMISSION Disclosure requirements; available online at http:// Florida; comments due by www.nara.gov/fedreg. Common carrier services: delivery by electronic 10-29-99; published 8-30- Integrated interstate communication; comments 99 due by 10-29-99; The text of laws is not universal service and Drawbridge operations: published 9-14-99 published in the Federal interstate access reform Maine; comments due by Register but may be ordered Truth in savings (Regulation plan covering price cap 10-25-99; published 8-25- in ``slip law'' (individual DD): incumbent local exchange 99 pamphlet) form from the Disclosure requirements; carriers; comments due Regattas and marine parades: Superintendent of Documents, by 10-29-99; published delivery by electronic International Tug-of-War; U.S. Government Printing 10-4-99 communication; comments Office, Washington, DC 20402 due by 10-29-99; comments due by 10-25- Telecommunications Act of 99; published 10-8-99 (phone, 202±512±1808). The 1996; implementationÐ published 9-14-99 text will also be made TRANSPORTATION Access charge reform; HEALTH AND HUMAN available on the Internet from DEPARTMENT local exchange carriers SERVICES DEPARTMENT GPO Access at http:// price cap performance Food and Drug Federal Aviation www.access.gpo.gov/nara/ review; comments due Administration Administration index.html. Some laws may by 10-29-99; published Animal drugs, feeds, and Airworthiness directives: not yet be available. 9-22-99 related products: Boeing; comments due by Radio services, special: Sheep as minor species; 10-25-99; published 8-25- H.R. 2084/P.L. 106±69 Maritime servicesÐ comments due by 10-26- 99 Department of Transportation 99; published 7-26-99 Privately owned Burkhart Grob Luft-Und and Related Agencies accounting authorities; Medical devices Raumfahrt GmbH & CO Appropriations Act, 2000 (Oct. accounts settlement; Surgeon's and patient KG; comments due by 9, 1999; 113 Stat. 986) 10-29-99; published 9-29- streamlining; biennial examination gloves; S. 1606/P.L. 106±70 regulatory review; reclassification; comments 99 comments due by 10- due by 10-28-99; Cessna; comments due by To extend for 9 additional 25-99; published 9-3-99 published 7-30-99 10-25-99; published 9-10- months the period for which chapter 12 of title 11, United Radio stations; table of INTERIOR DEPARTMENT 99 Pilatus Aricraft Ltd.; States Code, is reenacted. assignments: Land Management Bureau (Oct. 9, 1999; 113 Stat. 1031) Oregon; comments due by Minerals management: comments due by 10-27- 10-25-99; published 9-16- Mining claims or sites; 99; published 9-28-99 S. 249/P.L. 106±71 99 location, recording, and Raytheon; comments due by Missing, Exploited, and 10-27-99; published 8-31- FEDERAL DEPOSIT maintenance; reporting Runaway Children Protection 99 INSURANCE CORPORATION and recordkeeping Act (Oct. 12, 1999; 113 Stat. requirements; comments Saab; comments due by 10- Assessments: 1032) due by 10-26-99; 25-99; published 9-23-99 Risk classifications; capital Last List October 8, 1999 published 8-27-99 Class D and Class E component; reporting date Mining claims or sites; airspace; comments due by change; comments due by location, recording, and 10-29-99; published 9-14-99 10-25-99; published 9-8- maintenance; comments 99 Class E airspace; comments Public Laws Electronic due by 10-26-99; due by 10-25-99; published Notification Service FEDERAL RESERVE published 8-27-99 9-14-99 SYSTEM (PENS) Mining claims or sites; TRANSPORTATION Consumer leasing (Regulation location, recording, and DEPARTMENT M): maintenance; reporting Research and Special PENS is a free electronic mail and recordkeeping Disclosure requirements; Programs Administration notification service of newly delivery by electronic requirements Pipeline safety: enacted public laws. To communication; comments Correction; comments due subscribe, go to www.gsa.gov/ Hazardous liquid due by 10-29-99; by 10-26-99; published archives/publaws-l.html or transportationÐ published 9-14-99 9-8-99 send E-mail to Electronic fund transfers INTERIOR DEPARTMENT Underwater abandoned [email protected] with pipeline facilities; (Regulation E): Surface Mining Reclamation the following text message: comments due by 10- Disclosure requirements; and Enforcement Office 29-99; published 8-30- SUBSCRIBE PUBLAWS-L delivery by electronic Permanent program and 99 Your Name. communication; comments abandoned mine land due by 10-29-99; reclamation plan Note: This service is strictly published 9-14-99 submissions: LIST OF PUBLIC LAWS for E-mail notification of new Equal credit opportunity Iowa; comments due by 10- laws. The text of laws is not (Regulation B): 25-99; published 10-8-99 This is a continuing list of available through this service. Disclosure requirements; West Virginia; comments public bills from the current PENS cannot respond to delivery by electronic due by 10-25-99; session of Congress which specific inquiries sent to this communication; comments published 10-8-99 have become Federal laws. It address. VerDate 12-OCT-99 18:35 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4712 Sfmt 4711 E:\FR\FM\20OCCU.XXX pfrm01 PsN: 20OCCU