Pages 16363±16564 Vol. 60 3±30±95 No. 61 federal register March 30,1995 Thursday issue. Dallas, TX,seeannouncementontheinsidecoverofthis For informationonbriefingsinWashington,DC,and Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995
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PUBLIC Subscriptions: Paper or fiche 202–512–1800 FEDERAL REGISTER Published daily, Monday through Friday, Assistance with public subscriptions 512–1806 (not published on Saturdays, Sundays, or on official holidays), by Online: the Office of the Federal Register, National Archives and Records Telnet swais.access.gpo.gov, login as newuser 2 III Contents Federal Register Vol. 60, No. 61 Thursday, March 30, 1995 Agency for Toxic Substances and Disease Registry See Navy Department NOTICES Superfund program: Education Department Hazardous substances priority list (toxicological profiles), NOTICES 16478–16479 Grants and cooperative agreements; availability, etc.: Migrant education program, 16462–16464 Agricultural Marketing Service NOTICES Employment Standards Administration Poultry grade standards, voluntary, 16428 See Wage and Hour Division Agriculture Department Energy Department See Agricultural Marketing Service See Energy Information Administration See Animal and Plant Health Inspection Service See Federal Energy Regulatory Commission NOTICES See Forest Service RULES Meetings: Agricultural commodities; general regulations and Environmental Management Advisory Board, 16464 standards; FGIS regulations redesignated as GIPSA Natural gas exportation and importation: regulations, 16364–16366 Pennsylvania Gas & Water Co., 16470 Wasatch Oil & Gas Corp., 16469–16470 Animal and Plant Health Inspection Service Energy Information Administration NOTICES NOTICES Environmental statements; availability, etc.: Meetings: Nonregulated status determinations— American Statistical Association Committee on Energy Monsanto Co.; genetically engineered cotton lines, Statistics, 16464–16465 16428–16430 Engineers Corps Antitrust Division NOTICES NOTICES Environmental statements; availability, etc.: National cooperative research notifications: Coos Bay-North Bend water supply project, OR, 16457– Advanced Lead-Acid Battery Consortium, 16504 16458 BDM Federal, Inc., 16504 Lower Santa Cruz River flood control study, AZ, 16458 Petroleum Environmental Research Forum, 16504 Saline County, IL; surface coal mining operation, 16458 Army Department Family Support Administration See Engineers Corps See Community Services Office NOTICES Environmental statements; availability, etc.: Federal Aviation Administration Base realignment and closure— RULES Hamilton Army Airfield, CA, 16457 Airworthiness directives: Beech, 16366–16367 Coast Guard Jet routes, 16367–16368 PROPOSED RULES PROPOSED RULES Federal regulatory review, 16423–16424 Airworthiness directives: Boeing, 16388–16390, 16392–16395 Commerce Department Fokker, 16390–16392 See International Trade Administration HOAC AUSTRIA GmbH, 16396–16398 See Minority Business Development Agency Scheibe Flugzeugbau GmbH, 16398–16399 See National Oceanic and Atmospheric Administration Stemme, 16395–16396 See Technology Administration NOTICES Meetings: Community Services Office Informal airspace meetings— NOTICES Washington; correction, 16526 State median income estimates for four-person families Passenger facility charges; applications, etc.: (1996 FY), 16479–16480 Lafayette Regional Airport, LA, 16526–16527 Consumer Product Safety Commission Federal Deposit Insurance Corporation NOTICES NOTICES Meetings; Sunshine Act, 16532 Meetings; Sunshine Act, 16532 Defense Department Federal Election Commission See Army Department NOTICES See Engineers Corps Meetings; Sunshine Act, 16532 IV Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Contents Federal Energy Regulatory Commission Food and Drug Administration NOTICES RULES Electric rate and corporate regulation filings: Human drugs: Iowa-Illinois Gas & Electric Co. et al., 16465–16466 Antibiotic drugs— Environmental statements; availability, etc.: Bleomycin sulfate bulk drug substance; withdrawn, Williams Natural Gas Co., 16466–16467 16376–16377 Hydroelectric applications, 16467 NOTICES Natural gas certificate filings: Medical devices; premarket approval: Phillips Gas Pipeline Co. et al., 16467–16469 Sonic Accelerated Fracture Healing System (SAFHS); Applications, hearings, determinations, etc.: correction, 16480–16481 Questar Pipeline Co., 16469 Tennessee Gas Pipeline Co., 16469 Forest Service Transwestern Pipeline Co. et al., 16469 NOTICES Appealable decisions; legal notice: Federal Highway Administration Intermountain region, 16430–16431 NOTICES Meetings: Environmental statements; notice of intent: Deschutes Provincial Interagency Executive Committee, Oklahoma County, OK, 16527 16431 Rock County, WI, 16527–16528 San Diego County, CA, 16528 Health and Human Services Department See Agency for Toxic Substances and Disease Registry See Community Services Office Federal Maritime Commission See Food and Drug Administration NOTICES See Health Care Financing Administration Casualty and nonperformance certificates: See National Institutes of Health Alaska Sightseeing/Cruise West, 16470 See Social Security Administration Carnival Corp., 16470 NOTICES Freight forwarder licenses: Meetings: Gilbert International, Inc., et al., 16470 Research Integrity Commission, 16477–16478 Federal Procurement Policy Office Health Care Financing Administration RULES NOTICES Acquisition regulations: Medicaid: Cost Accounting Standards Board— Demonstration project proposals; list, 16481–16486 Pension costs; composition, measurement, adjustment, and allocation; cost accounting standards, 16534– Housing and Urban Development Department 16557 RULES Community planning and development programs; Federal Reserve System consolidation NOTICES Conforming amendments, 16377–16381 Adverse material supervisory determinations; internal NOTICES appeals process; guidelines, 16470–16473 Grants and cooperative agreements; availability, etc.: Agency information collection activities under OMB Public and Indian housing— review, 16473–16476 Lead-based paint risk assessments, 16560–16564 Applications, hearings, determinations, etc.: First Community Corp. et al., 16476–16477 Immigration and Naturalization Service Helena Bancshares, Inc., 16477 PROPOSED RULES Immigration: Aliens convicted of aggravated felonies who are not Financial Management Service lawful permanent residents; administrative See Fiscal Service deportation procedures, 16386–16388 Fiscal Service Interior Department NOTICES See Fish and Wildlife Service Surety companies acceptable on Federal bonds: See Land Management Bureau Travelers Indemnity Co. of Rhode Island, 16528–16529 See National Park Service See Reclamation Bureau Fish and Wildlife Service NOTICES Internal Revenue Service Endangered and threatened species and Endangered RULES Species Convention: Estate and gift taxes: Giant panda import permits, 16487–16498 Valuation tables; correction, 16382 Marine mammals: Income taxes: Authorization letters; incidental take— Intercompany transfer pricing regulations; correction, Oil and gas industry activities; polar bears and Pacific 16381–16382 walruses, 16498–16499 Unisex annuity tables; correction, 16381 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Contents V International Trade Administration National Oceanic and Atmospheric Administration NOTICES PROPOSED RULES Antidumping: Marine sanctuaries: Magnesium, pure and alloy, from— Florida Keys National Marine Sanctuary, FL, 16399– China, 16437–16440 16423 Russian Federation, 16440–16450 Magnesium, pure, from— National Park Service Ukraine, 16432–16437 NOTICES Realty actions; sales, leases, etc.: Justice Department Ohio; correction, 16503 See Antitrust Division See Immigration and Naturalization Service Navy Department NOTICES NOTICES Pollution control; consent judgments: Environmental statements; availability, etc.: Shenango Inc. et al., 16503–16504 Base realignment and closure— Labor Department Naval Training Center Orlando, FL, 16458–16462 See Wage and Hour Division NOTICES Nuclear Regulatory Commission Agency information collection activities under OMB NOTICES review, 16505–16515 Applications, hearings, determinations, etc.: Sequoyah Fuels Corp., 16515 Land Management Bureau RULES Personnel Management Office Public land orders: RULES California, 16383–16384 Prevailing rate systems, 16363–16364 Utah, 16384–16385 PROPOSED RULES Public Health Service Minerals management: See Agency for Toxic Substances and Disease Registry Oil and gas leasing— See Food and Drug Administration Heavy oil; development promotion and royalty See National Institutes of Health reduction, 16424–16427 NOTICES Railroad Retirement Board Closure of public lands: RULES Arizona, 16499 Railroad Retirement Act: Opening of public lands: Insurance annuities for survivors; computation, 16368– Oregon, 16499 16372 Realty actions; sales, leases, etc.: NOTICES California, 16499–16500 Agency information collection activities under OMB Utah, 16500–16501 review, 16515–16516 Survey plat filings: Supplemental annuity program; determination of quarterly Oregon and Washington, 16502 rate of excise tax, 16516 Withdrawal and reservation of lands: Kansas; correction, 16502 Reclamation Bureau Nebraska, 16502 NOTICES Environmental statements; availability, etc.: Management and Budget Office Sutter County et al., CA; water-related needs, 16503 See Federal Procurement Policy Office Minority Business Development Agency Securities and Exchange Commission NOTICES NOTICES Business development center program applications: Agency information collection activities under OMB Ohio, 16452–16454 review, 16516–16517 Native American business consultant program; nationwide, Self-regulatory organizations; proposed rule changes: 16451–16452 American Stock Exchange, Inc., 16517–16518 Native American business development center program Chicago Board Options Exchange, Inc., 16518–16521 applications: National Association of Securities Dealers, Inc., 16521– Minnesota, 16450–16451 16523 Applications, hearings, determinations, etc.: National Aeronautics and Space Administration Kidder, Peabody Tax-Free Income Fund, 16523–16524 NOTICES Public utility holding company filings, 16524–16525 Meetings: TCW High Yield Fund, Inc., 16525 Minority Business Resource Advisory Committee, 16515 Social Security Administration National Institutes of Health RULES NOTICES Supplemental security income: Meetings: Aged, blind, and disabled— Research Grants Division special emphasis panels, Termination of couple status waiting period 16486–16487 elimination, 16373–16376 VI Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Contents NOTICES United States Information Agency Social security rulings: NOTICES Rescissions— Grants and cooperative agreements; availability, etc.: Eligible spouse definition in supplemental security Summer Institute for EFL teacher trainers in Eastern and income program, 16487 Central Europe and Newly Independent States, 16529–16531 State Department NOTICES Wage and Hour Division Environmental statements; availability, etc.: RULES Texas/Mexico border, international bridges construction; Family and Medical Leave Act; implementation permitting process, 16525–16526 Correction, 16382–16383 Meetings: International Telecommunications Advisory Committee, 16526 Separate Parts In This Issue Technology Administration NOTICES Part II Grants and cooperative agreements; availability, etc.: Office of Management and Budget, Federal Procurement U.S.-Israeli science and technology program; research and Policy Office, 16534–16557 development, 16454–16457 Part III Thrift Depositor Protection Oversight Board Department of Housing and Urban Development, 16560– NOTICES 16564 Meetings: National Advisory Board, 16529 Reader Aids Toxic Substances and Disease Registry Agency Additional information, including a list of public laws, See Agency for Toxic Substances and Disease Registry telephone numbers, and finding aids, appears in the Reader Transportation Department Aids section at the end of this issue. See Coast Guard See Federal Aviation Administration See Federal Highway Administration Electronic Bulletin Board Free Electronic Bulletin Board service for Public Law Treasury Department numbers, Federal Register finding aids, and a list of See Fiscal Service documents on public inspection is available on 202–275– See Internal Revenue Service 1538 or 275–0920. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Contents VII CFR PARTS AFFECTED IN THIS ISSUE A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue. 5 CFR 532...... 16363 7 CFR 68...... 16364 868...... 16364 8 CFR Proposed Rules: 242...... 16386 14 CFR 39...... 16366 71...... 16367 Proposed Rules: 39 (6 documents) ...... 16388, 16390, 16392, 16395, 16396, 16398 15 CFR Proposed Rules: 929...... 16399 937...... 16399 20 CFR 228...... 16368 237...... 16368 416...... 16373 21 CFR 450...... 16376 24 CFR Appendix A to Subtitle A...... 16377 Appendix B to Subtitle B...... 16377 91...... 16377 248...... 16377 570...... 16377 572...... 16377 582...... 16377 583...... 16377 882...... 16377 889...... 16377 890...... 16377 26 CFR 1 (2 documents) ...... 16381 25...... 16382 29 CFR 825...... 16382 33 CFR Proposed Rules: Ch. I ...... 16423 43 CFR Public Land Orders: 7126...... 16383 7127...... 16384 7128...... 16384 Proposed Rules: 3100...... 16424 46 CFR Proposed Rules: Ch. I ...... 16423 48 CFR 9903...... 16534 9904...... 16534 16363 Rules and Regulations Federal Register Vol. 60, No. 61 Thursday, March 30, 1995 This section of the FEDERAL REGISTER scheduled 1995 closing of the host Considering the second criterion, contains regulatory documents having general installation, Plattsburgh Air Force Base transportation facilities and commuting applicability and legal effect, most of which (AFB), there will no longer be a local patterns, none of the three counties are keyed to and codified in the Code of activity with the capability to do the being considered is favored. The third Federal Regulations, which is published under Clinton, NY, survey. There will, criterion, similarities in population and 50 titles pursuant to 44 U.S.C. 1510. however, still be about 23 NAF industry, favors York County. On The Code of Federal Regulations is sold by employees in Clinton County. Neither of balance, evaluation under the criteria the Superintendent of Documents. Prices of the current area of application counties, favors the definition of Clinton County new books are listed in the first FEDERAL Chittenden and Franklin, VT, has FWS to the Oneida, NY, NAF wage area. REGISTER issue of each week. NAF employees. The Federal Prevailing Rate Advisory The provisions of 5 CFR 532.219 list Committee reviewed this the following criteria for consideration recommendation and by consensus OFFICE OF PERSONNEL when two or more counties are to be recommended approval. MANAGEMENT combined to constitute a single wage Pursuant to 5 U.S.C. 553(b)(3)(B), I area: find that good cause exists for waiving 5 CFR Part 532 (1) Proximity of largest activity in the general notice of proposed RIN 3206±AG74 each county; rulemaking. Also, pursuant to section (2) Transportation facilities and 553(d)(3) of title 5, United States Code, Prevailing Rate Systems; Abolishment commuting patterns; and I find that good cause exists for making of Clinton, NY, Nonappropriated Fund (3) Similarities of the counties in: this rule effective in less than 30 days. Wage Area (i) Overall population; The notice is being waived and the (ii) Private employment in major regulation is being made effective in less AGENCY: Office of Personnel than 30 days because preparations for Management. industry categories; and (iii) Kinds and sizes of private the March 1995 Clinton survey must ACTION: Interim rule with request for industrial establishments. otherwise begin immediately. comments. There criteria are discussed in turn Regulatory Flexibility Act below. SUMMARY: The Office of Personnel I certify that these regulations will not Of the largest nearby activities with Management is issuing interim have a significant economic impact on NAF employees, Plattsburgh AFB, regulations to abolish the Clinton, NY, a substantial number of small entities Clinton County, NY, is closest to Griffiss nonappropriated fund (NAF) Federal because they affect only Federal Air Force Base, Oneida, NY. Slightly Wage System (FWS) wage area and add agencies and employees. Clinton County, NY, as an area of more distant are Portsmouth Naval application to the Oneida, NY, NAF Shipyard and the U.S. Military List of Subjects in 5 CFR Part 532 wage area for pay-setting purposes. No Academy. Distances from Plattsburgh Administrative practice and employee’s wage rate will be reduced as Air Force Base to the host activities of procedure, Freedom of information, a result of this change. the surrounding wage areas are as Government employees, Reporting and follows: Griffiss Air Force Base, Oneida DATES: This interim rule becomes recordkeeping requirements, Wages. County, 320 km (199 miles); Portsmouth effective on March 30, 1995. Comments Naval Ship Yard, York County, ME, 362 U.S. Office of Personnel Management. must be received by May 1, 1995. km (225 miles); and the United States Lorraine A. Green, Employees paid rates from the Clinton, Military Academy, Orange County, NY, Deputy Director. NY, NAF wage schedule will continue 396 km (246 miles). Accordingly, OPM is amending 5 CFR to be paid from the schedule until their Considering transportation facilities, part 532 as follows: conversion to the new Oneida, NY, NAF from Plattsburgh AFB, the largest wage schedule on its effective date, May installations in the three surrounding PART 532ÐPREVAILING RATE 4, 1995. survey areas can all be reached easily by SYSTEMS ADDRESSES: Send or deliver comments Interstate Highways and some primary to Donald J. Winstead, Acting Assistant 1. The authority citation for part 532 undivided roads. An analysis of 1990 continues to read as follows: Director for Compensation Policy, census commuting patterns data Human Resources Systems Service, U.S. Authority: 5 U.S.C. 5343, 5346; § 532.707 indicates that no workers commute also issued under 5 U.S.C. 552. Office of Personnel Management, Room between Clinton County, NY, and the 6H31, 1900 E Street NW., Washington, three survey counties under Appendix B to Subpart B of Part 532 DC 20415. consideration (Oneida, York, and [Amended] FOR FURTHER INFORMATION CONTACT: Paul Orange). 2. In Appendix B to subpart B of part Shields, (202) 606–2848. In terms of similarities of the counties 532, the listing for the State of New SUPPLEMENTARY INFORMATION: The in overall population, private York is amended by removing the entry Department of Defense recommended to employment, and kinds and sizes of for Clinton. the Office of Personnel Management private industrial establishments, that the Clinton, NY, NAF wage area be Clinton County is most similar to York Appendix D to Subpart B of Part 532 abolished and that Clinton County be County. [Amended] added as an area of application to the In summary, the first criterion, 3. Appendix D to subpart B of part Oneida, NY, NAF wage area. With the proximity, favors Oneida County. 532 is amended by removing the entry 16364 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations for Clinton, New York, and by revising DEPARTMENT OF AGRICULTURE Chapter VIII as Part 868, thus the entry for Oneida, New York, to read consolidating all FGIS regulations as follows: Agricultural Marketing Service within Chapter VIII. This rule relates to internal agency Appendix D to Subpart B of Part 532— 7 CFR Part 68 management. Therefore, pursuant to 5 Nonappropriated Fund Wage and U.S.C. 553, noticed rulemaking and Survey Areas Grain Inspection, Packers and Stockyards Administration opportunity for comment are not * * * * * required, and this rule may be made 7 CFR Part 868 effective less than 30 days after New York publication in the Federal Register. * * * * * General Regulations and Standards for Further, since this rule relates to Certain Agricultural Commodities; internal agency management, it is Oneida Transfer of Regulations exempt from the provisions of Executive Survey area ACTION: Final rule. Order Nos. 12778 and 12868. Finally, this action is not a rule as defined by the New York: SUMMARY: This rule reflects the Regulatory Flexibility Act., Pub. L. No. Oneida redesignation of 7 CFR Part 68 as 7 CFR 96–354, and, thus, is exempt from the Part 868. The transfer of Part 68 from 7 provisions of that Act. Area of application. Survey area plus: CFR Chapter I to 7 CFR Chapter VIII as Part 868 is being undertaken to List of Subjects in Part 68 New York: consolidate into one chapter the Administrative practice and Albany regulations of the Federal Grain procedures, Agricultural commodities. Clinton (Effective date May 4, 1995) Inspection Service (FGIS), a program of For reasons set forth in the preamble the Grain Inspection, Packers and and background, 7 CFR Chapters I and Jefferson Stockyards Administration (GIPSA). VIII are amended as follows: Onondago EFFECTIVE DATE: March 30, 1995. Ontario FOR FURTHER INFORMATION CONTACT: PART 68Ð[REDESIGNATED AS PART Saratoga George Wollam, GIPSA–FGIS, USDA, 868] Room 0623 South Building, P.O. Box Schenectady 96454, Washington, DC, 20090–6454; 1. Part 68 is transferred from Chapter Seneca FAX/(202) 720–4628; telephone (202) I to Chapter VIII and redesignated as Part 868. The heading of redesignated Steuben 720–0292. SUPPLEMENTARY INFORMATION: The Grain Part 868 is revised to read as follows: * * * * * Inspection, Packers and Stockyards PART 868ÐGENERAL REGULATIONS [FR Doc. 95–7760 Filed 3–29–95; 8:45 am] Administration (GIPSA), established by AND STANDARDS FOR CERTAIN BILLING CODE 6325±01±M the Secretary of Agriculture, Secretary’s AGRICULTURAL COMMODITIES Memorandum 1010–1, Reorganization of the Department of Agriculture, on 2. The authority citation for October 20, 1994, is consolidating those redesignated Part 868 continues to read regulations which the Federal Grain as follows: Inspection Service (FGIS), a program of GIPSA, is responsible for administering. Authority: Secs 202–208, 60 Stat. 1087, as amended (7 U.S.C. 1621 et seq.). The FGIS regulations are currently found in 7 CFR Chapter I part 68 and 3. Internal paragraph references in 7 CFR Chapter VIII. This rule reflects newly redesignated part 868 are revised the transfer of Part 68 from Chapter I to as follows: Old section Old reference New section New reference 68.20(a) ...... §§ 68.40 through 68.44 ...... 868.20(a) ...... §§ 868.40 through 868.44. 68.20(b) ...... §§ 68.50 through 68.52 and 868.20(b) ...... §§ 868.50 through 868.52 and §§ 68.60 through 68.63. §§ 868.60 through 868.63. 68.21(e) ...... § 68.34 ...... 868.21(e) ...... § 868.34. 68.21(f) ...... § 68.24 ...... 868.21(f) ...... § 868.24. 68.21(j) ...... §§ 68.90±68.92 ...... 868.21(j) ...... §§ 868.90±868.92. 68.22 ...... § 68.26 ...... 868.22 ...... § 868.26. 68.24(a) ...... § 68.21 ...... 868.24(a) ...... § 868.21. 68.26 ...... §§ 68.22, 68.23, or 68.24 ...... 868.26 ...... §§ 868.22, 868.23, or 868.24. 68.33(a)(2) ...... § 68.35(e) ...... 868.33(a)(2) ...... § 868.35(e). 68.33(a)(3) ...... § 68.35(e), § 68.61(b) ...... 868.33(a)(3) ...... § 868.35(e), § 868.61(b). 68.42(a) ...... § 68.21 ...... 868.42(a) ...... § 868.21. 68.43 ...... § 68.70 ...... 868.43 ...... § 868.70. 68.51(a) ...... § 68.21 (twice) ...... 868.51(a) ...... § 868.21 (twice). 68.52(a) ...... § 68.70 ...... 868.52(a) ...... § 868.70. 68.52(b) ...... § 68.71 ...... 868.52(b) ...... § 868.71. 68.61(a) ...... § 68.21 (twice) ...... 868.61(a) ...... § 868.21 (twice). 68.71(e) ...... §§ 68.70±68.75 ...... 868.71(e) ...... §§ 868.70±868.75. 68.74(f) ...... § 68.70(b) ...... 868.74(f) ...... § 868.70(b). 68.75(c) ...... § 68.70(b) ...... 868.75(c) ...... § 868.70(b). 68.81(d) ...... § 68.84 ...... 868.81(d) ...... § 868.84. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16365 Old section Old reference New section New reference 68.82 ...... § 68.81 (a) and (b) ...... 868.82 ...... § 868.81 (a) and (b). 68.83 ...... § 68.81 (a) and (b) ...... 868.83 ...... § 868.81 (a) and (b). 68.92(a) ...... §§ 68.90 and 68.91 ...... 868.92(a) ...... §§ 868.90 and 868.91. 68.92(a)(5) ...... § 68.92(c) ...... 868.92(a)(5) ...... § 868.92(c). 68.92(f) ...... § 68.92(c) ...... 868.92(f) ...... § 868.92(c). 68.103 ...... §§ 68.133 through 68.142 ...... 868.103 ...... §§ 868.133 through 868.142. 68.141 ...... § 68.142 (a) and (b); § 68.142 (c) 868.141 ...... § 868.142 (a) and (b); § 868.142 and (d). (c) and (d). 68.201 ...... (see § 68.202(i)) ...... 868.201 ...... (see § 868.202(i)). 68.205 ...... (see § 68.202(f)) ...... 868.205 ...... (see § 868.202(f)). 68.211(a)(5) ...... (see § 68.213) ...... 868.211(a)(5) ...... (see § 868.213). 68.211(b)(5) ...... (see § 68.213) ...... 868.211(b)(5) ...... (see § 868.213). 68.212 ...... § 68.210 ...... 868.212 ...... § 868.210. 68.212(b) note ...... § 68.210 ...... 868.212(b) note ...... § 868.210. 68.212(d) note ...... § 68.210 ...... 868.212(d) note ...... § 868.210. 68.256 ...... (see § 68.252(g)) ...... 868.256 ...... (see § 868.252(g)). 68.262(a)(5) ...... (see § 68.264) ...... 868.262(a)(5) ...... (see § 868.264). 68.263 ...... § 68.262 ...... 868.263 ...... § 868.262. 68.263(c) note ...... § 68.261 ...... 868.263(c) note ...... § 868.261. 68.310 heading ...... (see also § 68.315) ...... 868.310 heading ...... (see also § 868.315). 68.310: 868.310: Footnote 1 ...... § 68.315(c) ...... Footnote 1 ...... § 868.315(c). Footnote 2 ...... § 68.315(e) ...... Footnote 2 ...... § 868.315(e). Footnote 5 ...... § 68.315(d) ...... Footnote 5 ...... § 868.315(d). 68.311 ...... (See also § 68.305.) ...... 868.311 ...... (See also § 868.305). 68.311: 868.311:. Footnote 1 ...... § 68.315(c) ...... Footnote 1 ...... § 868.315(c). Footnote 2 ...... § 68.315(d) ...... Footnote 2 ...... § 868.315(d). Footnote 3 ...... § 68.315(e) ...... Footnote 3 ...... § 868.315(e). 68.312 ...... (See also § 68.315.) ...... 868.312 ...... (See also § 868.315). 68.312: ...... 868.312:. Footnote 1 ...... § 68.315(c) ...... Footnote 1 § 868.315(c). Footnote 2 ...... § 68.315(d) ...... Footnote 2 § 868.315(d). Footnote 3 ...... § 68.315(e) ...... Footnote 3 § 868.315(e). 68.313 ...... (See also § 68.315.) ...... 868.313 ...... (See also § 868.315). 68.313: 868.313:. Footnote 1 ...... § 68.315(c) ...... Footnote 1 ...... § 868.315(c). Footnote 2 ...... § 68.315(d) ...... Footnote 2 ...... § 868.315(d). 68.315 ...... § 68.314 ...... 868.315 ...... § 868.314. 68.315(c) note ...... §§ 68.310, 68.311, 68.312, and 68.313. 868.315(c) note ...... §§ 868.310, 868.311, 868.312, and 868.313. 68.315(d) note ...... §§ 68.310, 68.311, 68.312, and 68.313. 868.315(d) note §§ 868.310, 868.311, 868.312, and 868.313.. 68.315(e) note ...... §§ 68.310, 68.311, and 68.312 ..... 868.315(e) note ...... §§ 868.310, 868.311, and 868.312. 68.316 ...... § 68.314 ...... 868.316 ...... § 868.314. 68.403(b) ...... § 68.402(d) ...... 868.403(b) ...... § 868.402(d). 68.406 ...... (See also § 68.408.) ...... 868.406 ...... (See also § 868.408). 68.408 ...... § 68.406 ...... 868.408 ...... § 868.406. 68.409 ...... § 68.407 ...... 868.409 ...... § 868.407. 68.502(b) ...... § 68.501(e) ...... 868.502(b) ...... § 868.501(e). 68.503 ...... (see § 68.506) ...... 868.503 ...... (see § 868.506). 68.504 ...... (see § 68.506) ...... 868.503 ...... (see § 868.506). 68.507 ...... (See also § 68.509.) ...... 868.507 ...... (See also § 868.509). 68.601(d) ...... (see § 68.606) ...... 868.601(d) ...... (see § 868.606). 68.602(b) ...... § 68.601(c) ...... 868.601(c) ...... § 868.601(c). 68.603 ...... (see § 68.606) ...... 868.603 ...... (see § 868.606). 68.604 ...... (see § 68.606) ...... 868.604 ...... (see § 868.606). 68.607 ...... (see also § 68.609) ...... 868.607 ...... (see also § 868.609). 68.611 ...... (see § 68.606) ...... 868.611 ...... (see § 868.606). 16366 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations Dated: March 14, 1995. Road, Mid-Continent Airport, Wichita, affecting immediate flight safety and, Patricia Jensen, Kansas 67209; telephone (316) 946– thus, was not preceded by notice and Acting Assistant Secretary, Marketing and 4124; facsimile (316) 946–4407. opportunity to comment, comments are Regulatory Programs. SUPPLEMENTARY INFORMATION: The FAA invited on this rule. Interested persons [FR Doc. 95–6906 Filed 3–29–95; 8:45 am] has received a report of an in-flight are invited to comment on this rule by BILLING CODE 3410±EN±P separation of the elevator trim tab submitting such written data, views, or control (‘‘nose up’’ and ‘‘nose down’’) arguments as they may desire. cable on a Beech Model 1900D airplane. Communications should identify the DEPARTMENT OF TRANSPORTATION The reported cable separation prevented Rules Docket number and be submitted the airplane flight crew from using in triplicate to the address specified Federal Aviation Administration manual and electrical nose up trim, and above. All communications received on the flight crew experienced high or before the closing date for comments 14 CFR Part 39 elevator ‘‘nose down’’ control forces. will be considered, and this rule may be amended in light of the comments [Docket No. 95±CE±15±AD; Amendment 39± The flight crew was then able to land 9184; AD 95±02±17] the airplane without further incident. received. Factual information that Investigation of this incident showed supports the commenter’s ideas and Airworthiness Directives; Beech that the elevator trim tab control cable suggestions is extremely helpful in Aircraft Corporation Model 1900D had separated in the vicinity of its guide evaluating the effectiveness of the AD Airplanes pulley, which is located at the top of the action and determining whether vertical stabilizer. The cable had been additional rulemaking action would be AGENCY: Federal Aviation routed outside the lower cable pulley needed. Administration, DOT. guard pin instead of under the guard Comments are specifically invited on ACTION: Final rule; request for pin. The routing configuration caused the overall regulatory, economic, comments. the cable to rub against the stabilizer rib, environmental, and energy aspects of resulting in cable separation. the rule that might suggest a need to SUMMARY: This document publishes in Since an unsafe condition has been modify the rule. All comments the Federal Register an amendment identified that is likely to exist or submitted will be available, both before adopting Airworthiness Directive (AD) develop in other Beech Model 1900D and after the closing date for comments, 95–02–17, which was sent previously to airplanes of the same type design, the in the Rules Docket for examination by known U.S. owners and operators of FAA issued priority letter AD 95–02–17 interested persons. A report that certain Beech Aircraft Corporation on January 25, 1995, to prevent in-flight summarizes each FAA-public contact Model 1900D airplanes. This AD separation of the elevator trim tab concerned with the substance of this AD requires inspecting (one-time) the control cable caused by misrouting, will be filed in the Rules Docket. elevator trim tab control cables at the which could result in loss of control of Commenters wishing the FAA to top of the vertical stabilizer to ensure the airplane. The AD requires inspecting acknowledge receipt of their comments that cables (at the left, right, and (one-time) the elevator trim tab control submitted in response to this notice crossover pulleys) are correctly routed cables at the top of the vertical stabilizer must submit a self-addressed, stamped around the pulleys, within the cable to ensure that cables (at the left, right, postcard on which the following guide pins, and are not contacting any and crossover pulleys) are correctly statement is made: ‘‘Comments to structure; and replacing any cable that routed around the pulleys, within the Docket No. 95–CE–15–AD.’’ The is incorrectly routed or chafed. The cable guide pins, and are not contacting postcard will be date stamped and actions specified by this AD are any structure; and replacing any cable returned to the commenter. intended to prevent in-flight separation that is incorrectly routed or chafed. The regulations adopted herein will of the elevator trim tab control cable Accomplishment of the required actions not have substantial direct effects on the caused by misrouting, which could is in accordance with the Beech 1900D States, on the relationship between the result in loss of control of the airplane. Maintenance Manual, part number 129– national government and the States, or on the distribution of power and DATES: Effective April 17, 1995, to all 590000–15A11, Chapters 5–20–07, page responsibilities among the various persons except those to whom it was 203; 6–40–00, page 3; 6–50–00, page 16; levels of government. Therefore, in made immediately effective by priority and 27–30–04, pages 202 and 203. accordance with Executive Order 12612, letter AD 95–02–17, issued January 25, Since it was found that immediate it is determined that this final rule does 1995, which contained the requirements corrective action was required, notice not have sufficient federalism of this amendment. and opportunity for prior public implications to warrant the preparation Comments for inclusion in the Rules comment thereon were impracticable and contrary to the public interest, and of a Federalism Assessment. Docket must be received on or before The FAA has determined that this June 16, 1995. good cause existed to make AD 95–02– 17 effective immediately by individual regulation is an emergency regulation ADDRESSES: Submit comments in letters issued on January 25, 1995, to that must be issued immediately to triplicate to the Federal Aviation known U.S. operators of certain Beech correct an unsafe condition in aircraft, Administration (FAA), Central Region, Model 1900D airplanes. These and is not a ‘‘significant regulatory Office of the Assistant Chief Counsel, conditions still exist, and the AD is action’’ under Executive Order 12866. It Attention: Rules Docket 95–CE–15–AD, hereby published in the Federal has been determined further that this Room 1558, 601 E. 12th Street, Kansas Register as an amendment to section action involves an emergency regulation City, Missouri 64106. 39.13 of the Federal Aviation under DOT Regulatory Policies and Information that relates to this AD Regulations (14 CFR 39.13) to make it Procedures (44 FR 11034, February 26, may be examined at the Rules Docket at effective as to all persons. 1979). If it is determined that this the address above. emergency regulation otherwise would FOR FURTHER INFORMATION CONTACT: Mr. Comments Invited be significant under DOT Regulatory Steven E. Potter, Wichita Aircraft Although this action is in the form of Policies and Procedures, a final Certification Office, FAA, 1801 Airport a final rule that involves requirements regulatory evaluation will be prepared Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16367 and placed in the Rules Docket. A copy horizontal stabilizer, to gain access to the 14 CFR Part 71 of it, if filed, may be obtained from the elevator trim tab cable, guides, and pulleys; (2) Inspect the cable routing to ensure that Rules Docket at the location provided [Airspace Docket No. 94±ASO±17] under the caption ADDRESSES. cables (at the left, right, and crossover pulleys) are correctly routed around the List of Subjects in 14 CFR Part 39 Establishment and Alteration of Jet pulleys, within the cable guide pins, and are Routes Air transportation, Aircraft, Aviation not contacting any structure; and safety, Safety. (3) Replace any cable that is incorrectly AGENCY: Federal Aviation routed (cable that does not meet the criteria Administration (FAA), DOT. Adoption of the Amendment above in paragraph (a)(2) of this AD) or is ACTION: Final rule; correction. Accordingly, pursuant to the chafed. authority delegated to me by the Note 2: The procedures listed in Beech SUMMARY: This action corrects an error Administrator, the Federal Aviation Communique 1900D–112, dated January to the final rule published in the Administration amends part 39 of the 1995, ‘‘Inspection of Elevator Trim Tab Federal Register on February 7, 1995, Federal Aviation Regulations (14 CFR Control Cables’’, are similar to those included which modified the airspace part 39) as follows: in this priority letter AD. Complying with all designation for Jet Route J–20, Airspace procedures in Beech Communique 1900D– Docket No. 94–ASO–17. This action is PART 39ÐAIRWORTHINESS 112 is considered equivalent to the necessary to revise a segment of the DIRECTIVES requirements of paragraphs (a)(1), (a)(2), and route to reflect ‘‘Falcon, CO; Hugo, CO’’ (a)(3) of this AD, and is considered ‘‘unless in lieu of the Denver, CO, Very High 1. The authority citation for part 39 already accomplished’’ for this portion of the continues to read as follows: Frequency Omnidirectional Range, AD. which no longer exists. Authority: 49 U.S.C. App. 1354(a), 1421 Note 3: The compliance time specified in and 1423; 49 U.S.C. 106(g); and 14 CFR this AD takes precedence over that specified EFFECTIVE DATE: March 30, 1995. 11.89. in Beech Communique 1900D–112, dated FOR FURTHER INFORMATION CONTACT: § 39.13 [Amended] January 1995, ‘‘Inspection of Elevator Trim Patricia P. Crawford, Airspace and Tab Control Cables’’. Obstruction Evaluation Branch (ATP– 2. Section 39.13 is amended by (b) Special flight permits may be issued in 240), Airspace-Rules and Aeronautical adding a new airworthiness directive to Information Division, Air Traffic Rules read as follows: accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR and Procedures Service, Federal 95–02–17 Beech Aircraft Corporation: 21.197 and 21.199) to operate the airplane to Aviation Administration, 800 Amendment 39–9184; Docket No. 95– a location where the requirements of this AD Independence Avenue, SW., CE–15–AD. can be accomplished. Washington, DC 20591; telephone: (202) Applicability: Model 1900D airplanes, (c) An alternative method of compliance or 267–9255. serial numbers UE–1 through UE–131, adjustment of the compliance time that SUPPLEMENTARY INFORMATION: On certificated in any category. provides an equivalent level of safety may be Note 1: This AD applies to each airplane February 7, 1995 the FAA published a approved by the Manager, Wichita Aircraft final rule to modify several existing jet identified in the preceding applicability Certification Office (ACO), FAA, 1801 provision, regardless of whether it has been routes in the Miami, FL, area (60 FR Airport Road, Mid-Continent Airport, modified, altered, or repaired in the area 7116) with an effective date of March subject to the requirements of this AD. For Wichita, Kansas 67209. The request shall be 30, 1995. The airspace designation for airplanes that have been modified, altered, or forwarded through an appropriate FAA Jet Route J–20 was modified in the State Maintenance Inspector, who may add repaired so that the performance of the of Florida to support the commissioning comments and then send it to the Manager, requirements of this AD is affected, the of the Virginia Key, Very High Wichita ACO. owner/operator must use the authority Frequency Omnidirectional Range and provided in paragraph (c) of this AD to Note 4: Information concerning the request approval from the FAA. This Distance Measuring Equipment (VOR/ existence of approved alternative methods of DME). However, in the interim, a approval may address either no action, if the compliance with this AD, if any, may be current configuration eliminates the unsafe clarification of the current airspace obtained from the Wichita ACO. condition, or different actions necessary to designation for Jet Route J–20 was address the unsafe condition described in (d) Information that relates to this AD may published in the Federal Register on this AD. Such a request should include an be examined at the FAA, Central Region, February 10, 1995, Airspace Docket No. assessment of the effect of the changed Office of the Assistant Chief Counsel, Room 95–ANM–7 (60 FR 8166) with an configuration on the unsafe condition 1558, 601 E. 12th Street, Kansas City, effective date of February 28, 1995, due addressed by this AD. In no case does the Missouri 64106. to the opening of the new Denver presence of any modification, alteration, or (e) This amendment (39–9184) becomes repair remove any aircraft from the International Airport. This action effective on April 17, 1995, to all persons corrects that segment of the jet route’s applicability of this AD. except those persons to whom it was made Compliance: Required prior to further designation, which should be revised to immediately effective by priority letter AD reflect ‘‘Falcon, CO; Hugo, CO;’’ in lieu flight after the effective date of this AD, 95–02–17, issued January 25, 1995, which unless already accomplished. of ‘‘Denver, CO; Kiowa, CO;’’. contained the requirements of this To prevent in-flight separation of the Correction of Final Rule elevator trim tab control cable, which could amendment. lead to loss of control of the airplane, Issued in Kansas City, Missouri, on March Accordingly, pursuant to the accomplish the following: 24, 1995. authority delegated to me, the (a) In accordance with Beech 1900D Dwight A. Young, publication in the Federal Register on Maintenance Manual, part number 129– 590000–15A11, Chapters 5–20–07, page 203; Acting Manager, Small Airplane Directorate, February 7, 1995 (60 FR 7116; Federal 6–40–00, page 3; 6–50–00, page 16; and 27– Aircraft Certification Service. Register Document 95–2737) is 30–04, pages 202 and 203: [FR Doc. 95–7784 Filed 3–29–95; 8:45 am] corrected by substituting the (1) Remove access panel Number 333ATC, BILLING CODE 4910±13±U designation for Jet Route J–20 with the which is located on the top surface of the following: 16368 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations Paragraph 2004—Jet Routes railroad retirement and the social amendments to the Railroad Retirement * * * * * security systems. The second tier (tier II) Act. is based solely on the employee’s J–20 [Revised] Section 228.52 describes the increase railroad earnings and is a set percentage in the tier II annuity component when From Seattle, WA, via Yakima, WA; of the employee’s tier II annuity Pendleton, OR; Donnelly, ID; Pocatello, ID; a widow(er) is entitled to a railroad component. retirement annuity which caused a Rock Springs, WY; Falcon, CO; Hugo, CO; The rule is divided into three Lamar, CO; Liberal, KS; INT Liberal 137° and reduction in the widow(er)’s tier I Will Rogers, OK, 284° radials; Will Rogers; subparts, A–C: annuity component. Belcher, LA; Jackson, MS; Montgomery, AL; Subpart A is an introduction to the part. It provides a listing of other Section 228.53 describes the increase Meridian, MS; Tallahassee, FL; INT in the tier II annuity component to Tallahassee 129° and Orlando, FL, 306° relevant regulations, part 225, Primary radials; Orlando; INT Orlando 140° and Insurance Amount Determinations, and insure that a widow(er)’s annuity is no Virginia Key, FL, 344° radials; Virginia Key. part 216, Eligibility for an Annuity less than the spouse annuity the widow(er) was receiving before the * * * * * (§ 228.1) and sets forth a general Issued in Washington, DC, on March 24, explanation of tier I and tier II annuity employee died. 1995. components (§ 228.2). Finally, § 228.60 describes the cost-of- Harold W. Becker, Subpart B sets forth the computation living increase applicable to the tier II Manager, Airspace-Rules and Aeronautical of the tier I annuity component. Section annuity component. Information Division. 228.10 describes the tier I of the The Board published this rule in [FR Doc. 95–7830 Filed 3–29–95; 8:45 am] widow(er)’s annuity; § 228.11, the tier I proposed form on September 30, 1993 BILLING CODE 4910±13±P of widow(er) with a child in care; (58 FR 51024) inviting comment by § 228.12, the tier I of child’s annuity; November 1, 1993; no comments were and § 228.13, the tier I of a parent’s received. RAILROAD RETIREMENT BOARD annuity. The Board, with the concurrence of Section 228.14 describes when and the Office of Management and Budget, how the tier I annuity component is 20 CFR Parts 228 and 237 has determined that this is not a reduced for the family maximum, which significant regulatory action under RIN: 3220±AA59 is a provision in the Social Security Act Executive Order 12866; therefore, no that limits the total monthly benefits to Computation of Survivor Annuities regulatory impact analysis is required. which beneficiaries may be entitled. There are no information collections AGENCY: Section 228.15 describes the age Railroad Retirement Board. associated with this rule. ACTION: Final rule. reduction applicable to the tier I annuity component if the survivor begins to List of Subjects in 20 CFR Part 228 SUMMARY: The Railroad Retirement receive benefits prior to the retirement Board amends its regulations by adding age specified in the Social Security Act. Pensions, Railroad employees, a new part dealing with the Section 228.16 describes the Railroad retirement. computation of survivor annuities as adjustment of the age reduction factor For the reasons set out in the provided in the Railroad Retirement Act when the widow(er) attains retirement preamble, chapter II of title 20 of the of 1974 (Act). This part replaces part age. Code of Federal Regulations is amended 237 of the Board’s regulations, which is Section 228.17 describes how the as follows: removed. The Board’s previous widow(er)’s annuity is adjusted if the 1. Part 228, Computation of Survivor regulations regarding the computation employee died before he or she reached Annuities, is added to read as follows: of survivor annuities were promulgated age 62. under the Railroad Retirement Act of Section 228.18 describes how the tier PART 228ÐCOMPUTATION OF 1937 and no longer reflect the I is reduced due to receipt of a public SURVIVOR ANNUITIES computational provisions contained in pension. the Act. Section 228.19 describes how the tier Subpart AÐGeneral EFFECTIVE DATE: March 30, 1995. I component is reduced due to receipt Sec. of a social security benefit. 228.1 Introduction. ADDRESSES: Secretary to the Board, Sections 228.20–228.22 describe the 228.2 Tier I and tier II annuity components. Railroad Retirement Board, 844 North reduction in a survivor annuity due to Rush Street, Chicago, Illinois 60611. Subpart BÐThe Tier I Annuity Component receipt of other types of railroad FOR FURTHER INFORMATION CONTACT: retirement annuities. 228.10 Computation of the tier I annuity Thomas W. Sadler, Assistant General Section 228.23 describes the order in component for a widow(er), disabled Counsel, Railroad Retirement Board, widow(er), remarried widow(er), and a which the above-described reductions surviving divorced spouse. 844 North Rush Street, Chicago, Illinois are made. Finally, § 228.40 describes the 60611, telephone 312–751–4513, (FTS 228.11 Computation of the tier I annuity cost-of-living increases applicable to the component of a widow(er) with a child 312–386–4513), TTD 312–751–4701, tier I annuity component. in care, remarried widow(er) with a child TTD (FTS 312–386–4701). Subpart C describes the computation in care, or a surviving divorced spouse SUPPLEMENTARY INFORMATION: This of the tier II annuity component. Section with a child in care. regulation provides the rules for 228.50 describes the tier II annuity 228.12 Computation of the tier I annuity computing the amount of a survivor component for various types of survivor component of a child’s insurance annuity under the Railroad Retirement annuitants. It also describes the age annuity. Act of 1974. In general, the annuity reduction applicable to the tier II 228.13 Computation of the tier I annuity component of a parent’s insurance consists of two components or tiers. The annuity component. annuity. first tier (tier I) is a social security level Section 228.51 describes the 228.14 Family maximum. benefit that is generally computed under reduction to the tier II annuity 228.15 Reduction for age. social security rules based on the component known as the takeback 228.16 Adjustments in the age reduction employee’s earnings under both the amount which was imposed by the 1983 factor (ARF). Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16369 228.17 Adjustments to the widow(er)’s, (b) Tier II annuity component. The (b) More than one parent entitled. A disabled widow(er)’s, surviving divorced tier II annuity component is the portion parent’s tier I annuity component is spouse’s, and remarried widow(er)’s tier of the survivor’s annuity which is based equal to 75 percent of the PIA computed I annuity amount. on an employee’s railroad earnings only. under § 228.10 of this part. 228.18 Reduction for public pension. The tier II component of an annuity 228.19 Reduction for a social security (c) The amounts computed under benefit. described in this part is a specified paragraph (a) or (b) of this section may 228.20 Reduction for an employee annuity. percentage of the employee’s actual or be adjusted for the family maximum. 228.21 Entitlement as a spouse or divorced anticipated tier II annuity component. See § 228.14 of this part. spouse and as a survivor. 228.22 Entitlement to more than one Subpart BÐThe Tier I Annuity § 228.14 Family maximum. survivor annuity. Component (a) Family maximum defined. Under 228.23 Priority of reductions. § 228.10 Computation of the tier I annuity the Social Security Act, the amount of 228.40 Cost of living increase applicable to total monthly benefits that can be paid the tier I annuity component. component for a widow(er), disabled widow(er), remarried widow(er), and a for any month on one person’s earnings Subpart CÐThe Tier II Annuity Component surviving divorced spouse. record is limited. This limited amount 228.50 Tier II annuity component for The tier I annuity component for is called the family maximum. The widow(er), child, or parent. these beneficiaries is generally based on family maximum is based on the 228.51 Takeback amount. the survivor tier I Primary Insurance survivor tier I PIA (see part 225 of this 228.52 Restored amount. Amount (PIA). The survivor tier I PIA is chapter). Generally, if three or more 228.53 Spouse minimum guarantee. determined in accordance with section persons are entitled to benefits, their 228.60 Cost of living increase. 215 of the Social Security Act using the benefits will be adjusted for the family Authority: 45 U.S.C. 231f. deceased employee’s combined railroad maximum. and social security earnings after 1950 (b) Computation of the family PART 228ÐCOMPUTATION OF (or after 1936 if a higher PIA would maximum.—(1) The employee attains SURVIVOR ANNUITIES result) up to the maximum creditable age 62, has a period of disability or dies amounts through the year of the prior to 1979. The maximum is the Subpart AÐGeneral employee’s death. See part 225 of this amount appearing in column V of the § 228.1 Introduction. chapter. This amount may be further applicable table published each year by (a) What does this part include? This adjusted for certain reductions or the Secretary of Health and Human part includes the computation of a deductions as described in §§ 228.15– Services on the line on which appears widow(er)’s, disabled widow(er)’s, 228.20 of this part and is subject to the in column IV the primary insurance remarried widow(er)’s, surviving family maximum. See § 228.14 of this amount of the insured individual whose divorced spouse’s, parent’s, and child’s part. compensation is the basis for the benefits payable. Where the total of the insurance annuity under the Railroad § 228.11 Computation of the tier I annuity Retirement Act. This part describes the component of a widow(er) with a child in survivor benefits exceeds the maximum, two annuity components or tiers which care, remarried widow(er) with a child in the total tier I benefits for each month are included in these annuities. The tier care, or a surviving divorced spouse with a after 1964 are reduced to the amount I annuity component, which may be child in care. appearing in column V. Each survivor’s payable in all of the above annuities, is The tier I annuity component of a benefit is proportionately reduced, described in subpart B of this part. widow(er), remarried widow(er), or a based on the percentage of the PIA used Subpart C of this part describes the tier surviving divorced spouse with a child to compute the survivor benefits. II annuity component which is only of the employee in his or her care is 75 However, when any of the persons applicable to the widow(er)’s, disabled percent of the PIA computed under entitled to benefits on the insured widow(er)’s, parent’s, and child’s § 228.10 of this part. The amount may individual’s compensation would, annuity. be adjusted for certain reductions and except for the limitation described in (b) Other relevant parts. (1) Part 225, deductions described in §§ 228.15– § 404.353(b) of title 20 (dealing with the Primary Insurance Amount 228.20 of this part and is subject to the entitlement to more than one child’s Determinations, describes the various family maximum. See § 228.14 of this benefit), be entitled to a child’s annuity types of primary insurance amounts part. on the basis of the compensation of one which form the basis of the computation or more other insured individuals, the § 228.12 Computation of the tier I annuity total benefits payable may not be of the tier I annuity component component of a child's insurance annuity. described in this part. reduced to less than the smaller of— The tier I annuity component of a (i) The sum of the maximum amounts (2) Part 216, Eligibility for an child’s insurance annuity is 75 percent Annuity, describes the eligibility of benefits payable on the basis of the of the PIA computed under § 228.10 of compensation of all such insured requirements for receipt of the annuity this part. The amount may be adjusted computations described in this part. individuals, or for the family maximum. See § 228.14 of (ii) The last figure in column V of the § 228.2 Tier I and tier II annuity this part. applicable table published each year by components. § 228.13 Computation of the tier I annuity the Secretary of Health and Human (a) Tier I annuity component. The component of a parent's insurance annuity. Services. The ‘‘applicable table’’ refers Tier I annuity component is generally The tier I annuity component of a to the table which is effective for the the amount that would have been parent’s insurance annuity is dependent month the benefit is payable. payable under the Social Security Act if on whether one or two parents are (2) The employee attains age 62, has all of the employee’s earnings after 1936 entitled. a period of disability or dies in 1979. under both the railroad retirement (a) One parent entitled. A parent’s tier The maximum is computed as follows: system and the social security system I annuity component is equal to 821⁄2 (i) 150 percent of the first $230 of the had been creditable under the Social percent of the PIA computed under individual’s primary insurance amount, Security Act. § 228.10 of this part. plus 16370 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations (ii) 272 percent of the primary reduction factor is adjusted to remove reduced each month the survivor insurance amount over $230 but not those months for which a full annuity annuitant is receiving a monthly over $332, plus was not paid even though the individual pension from a Federal, State, or local (iii) 134 percent of the primary was entitled. government agency (Government insurance amount over $332 but not pension) for which he or she was over $433, plus § 228.17 Adjustments to the widow(er)'s, employed in work not covered by social (iv) 175 percent of the primary disabled widow(er)'s, surviving divorced spouse's, and remarried widow(er)'s tier I security on the last day of such insurance amount over $433. annuity amount. employment. For purposes of this If the total of this computation is not section, Federal government employees a multiple of $0.10, it will be rounded (a) If the employee died before are not considered to be covered by to the next lower multiple of $0.10. attaining age 62 and after 1978 and the social security if they are covered for (3) The employee attains age 62, or widow(er), disabled widow(er), Medicare but are not otherwise covered has a period of disability or dies after remarried widow(er), or surviving by social security, or if they are covered 1979. The maximum is computed as in divorced spouse is first eligible after under social security solely by an paragraph (b)(2) of this section. 1984, the Board will compute the tier I election to become subject to the However, the dollar amounts shown annuity amount as if the employee had Federal Employees and Retirement there will be updated each year after not died but had reached age 62 in the System made after December 31, 1987, 1979 as average earnings rise. This second year after the indexing year (see and have not worked 60 months under updating is done by first dividing the § 225.2 of this chapter); provided, that system. average of the total wages for the second however, that if the employee was (c) Payment in a lump sum. If the year before the individual dies or entitled to a primary insurance amount Government pension is not paid becomes eligible, by the average of the based on average monthly wages this monthly or is paid in a lump-sum total wages for 1977. The result of that section is not applicable. The indexing payment, the Board will determine how computation is then multiplied by each year is never earlier than the second much the pension would be if it were dollar amount in the formula in year before the year of the employee’s paid monthly. If one of the alternatives paragraph (b)(2) of this section. Each death. Except for this limitation it is the to a lump-sum payment is a life annuity, updated dollar amount will be rounded earlier of—— and the amount of the monthly benefit to the nearer dollar, if the amount is an (1) The year the employee attained for the life annuity can be determined, exact multiple of $0.50 (but not of $1), age 60, or would have attained age 60 the reduction will be based on that it will be rounded to the next higher $1. had the employee lived, and monthly benefit amount. Where the Before November 2 of each calendar (2) The second year before the year in period for the equivalent monthly year after 1978, the Secretary of Health which the widow(er), remarried pension benefit is not clear, it may be and Human Services will publish in the widow(er), or surviving divorced spouse necessary for the Board to determine the Federal Register the formula and becomes eligible for such an annuity, reduction period on an individual case updated dollar amounts to be used for has attained age 60, or is age 50–59 and basis. determining the monthly maximum for disabled. (d) Exceptions. The reduction does the following year. (b) The tier I annuity component is not apply: (c) Special minimum PIA. Regardless increased if the employee’s annuity was (1) If the survivor is receiving a of the method used to compute the increased or would have been increased Government pension based on primary insurance amount, if the special based on delayed retirement credits (see employment for an interstate minimum primary insurance amount § 225.36 of this chapter). instrumentality; or (2) If the survivor receives or is described in § 404.261 to this title is (c) The tier I annuity component is eligible to receive a Government higher, then the family maximum will reduced if the employee had been pension for one or more months in the be based upon the special minimum entitled to an age reduced annuity, period December 1977 through primary insurance amount. including an annuity based on 30 years of service, which is reduced for age November 1982 and he or she meets the § 228.15 Reduction for age. because it began before the employee requirements for social security benefits (a) Widow(er), surviving divorced attained age 62. In this instance, the that were applied in January 1977, spouse, or remarried widow(er). The tier widow(er)’s, remarried widow(er)’s, or assuming the employee’s earnings had I annuity component is reduced 19/40 surviving divorced spouse’s tier I been covered under that Act (even of 1 percent multiplied by the number annuity component after applying any though he or she did not actually claim of months before the annuitant attains reduction for age is further reduced to such benefits or become entitled for full retirement age (presently age 65) the larger of amount the employee such benefits until a later month). The effective with the annuity beginning would have received as a tier I annuity January 1977 requirements are, for a date for widow(ers) born before 1/2/40. component if still alive or 821⁄2 percent man, a one-half support test (see (For widow(ers) born after 1/1/40, see of his or her primary insurance amount. paragraph (e) of this section), and, for a woman claiming benefits as a surviving section 216(l) of the Social Security § 228.18 Reduction for public pension. Act.) divorced spouse, marriage for at least 20 (b) Disabled widow(er), disabled (a) The tier I annuity component of a years to the insured worker. A person is surviving divorced spouse, or disabled widow(er), remarried widow(er), considered eligible for a Government remarried widow(er). The tier I annuity surviving divorced spouse, or disabled pension for any month in which he or component is reduced for a maximum of widow(er) annuity, as described in the she meets all the requirements for 60 months even though the annuity may preceding sections of this part, is payment except that he or she is begin at age 50. reduced if the survivor is in receipt of working or has not applied; or a public pension. (3) If a survivor annuitant was § 228.16 Adjustments in the age reduction (b) When reduction is required. receiving or eligible (as defined in factor (ARF). Unless the survivor annuitant meets one paragraph (d)(2) of this section) to Upon the attainment of retirement of the exceptions in paragraph (d) of this receive a Government pension for one or age, the previously-computed age section, the tier I annuity component is more months before July 1983, and he Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16371 or she meets the one-half support test rounded to the next higher multiple of larger annuity will be paid. However, if (see paragraph (e) of this section). If a 10 cents. the individual so chooses, he or she may survivor annuitant meets the exception (2) If a survivor annuitant became receive the smaller annuity rather than in this paragraph but he or she does not eligible for a Government pension the larger annuity. meet the exception in paragraph (d)(2) before July 1983 and he or she did not § 228.23 Priority of reductions. of this section, December 1982 is the meet one of the exceptions in paragraph earliest month for which the reduction (d) of this section, the Board will reduce The tier I component of the survivor will not affect his benefits; or (but not below zero) the tier I annuity is first reduced by the family (4) If a survivor annuitant was eligible component by the full amount of the maximum, if applicable, then any for a Government pension in a given pension for months before December applicable age reduction, then by any month except for a requirement which 1984 and by two-thirds the amount of public pension offset, then by any social delayed eligibility for such pension his or her monthly pension for months security benefit payable, then by the tier until the month following the month in after November 1984. If the amount of I component of any employee annuity which all other requirements were met, the reduction is not a multiple of 10 payable to the survivor annuitant. the Board will consider the annuitant to cents, it will be rounded to the next § 228.40 Cost of living increase applicable be eligible in that given month for the higher multiple of 10 cents. to the tier I annuity component. purpose of meeting one of the (g) Reduction not applicable. This The tier I annuity component of a exceptions in paragraphs (d) (2) and (3) reduction is not applied to claimants survivor annuity is increased at the of this section. If an annuitant meets an who both filed and were entitled to same time and by the same percentage exception solely because of this benefits prior to December 1977. as the increase provided for under paragraph, his or her benefits will be § 228.19 Reduction for a social security section 215(i) of the Social Security Act. unreduced for months after November benefit. The amount of the increase is published 1984 only. The tier I annuity component is in the Federal Register annually. The (e) The one-half support test. For a reduced for the amount of any social cost-of-living increase is payable man to meet the January 1977 security benefit to which the survivor beginning with the benefit for the month requirement as provided in the annuitant is entitled. of December of the year for which the exception in paragraph (d)(2) of this increase is due. The increase is paid in section and for a man or a woman to § 228.20 Reduction for an employee the January payment. meet the exception in paragraph (d)(3) annuity. of this section, he or she must meet a (a) General. If an individual is entitled Subpart CÐThe Tier II Annuity one-half support test. One-half support to an annuity as a survivor, and is also Component is defined in part 222 of this chapter. entitled to an employee annuity, then § 228.50 Tier II annuity component One-half support must be met at one of the survivor annuity must be reduced by widow(er), child, or parent. the following times: the amount of the employee annuity. (a) General. The tier II annuity (1) If the employee upon whose However, this reduction does not apply component is an additional amount compensation the survivor annuity is (except as provided in paragraph (b) of payable to a widow(er), disabled based had a period of disability which this section) if the survivor or the widow(er), child, or parent, but not to did not end before he or she became individual upon whose earnings record a surviving divorced spouse or entitled to an age and service or the survivor annuity is based worked for remarried widow(er), and a parent as disability annuity, or died, the survivor a railroad employer or as an employee provided in paragraph (b)(2) of this annuitant must have been receiving at representative before January 1, 1975. section, based on the railroad least one-half support from the (b) Tier I reduction. If an individual employee’s earnings in the railroad employee— is entitled to an annuity as a survivor, industry. Unlike the tier I annuity (i) At the beginning of his or her then the tier I component of the survivor component it is not reduced for any period of disability; or annuity must be reduced by the amount other social insurance benefit except a (ii) At the time he or she became of the tier I component of the employee railroad retirement annuity. See entitled to an age and service or annuity after reduction for age. Where §§ 228.20–228.23 of this part. disability annuity; or the survivor is entitled to a tier II (b) Amount of the tier II annuity (iii) At the time of his or her death. component and either the survivor or component (1981 amendment).—(1) (2) If the employee upon whose the employee had railroad earnings Widow(er) or disabled widow(er). The compensation the survivor annuity is before 1975, a portion of this reduction amount of a widow(er)’s or disabled based did not have a period of disability may be restored in the computation of widow(er)’s tier II annuity component is at the time of his or her entitlement or the tier II component (see § 228.52 of 50 percent of the amount of the death, the survivor annuitant must have this part). employee’s tier II which would have been receiving at least one-half support § 228.21 Entitlement as a spouse or been payable in the month in which the from the employee— divorced spouse and as a survivor. widow became entitled had the (i) At the time he or she became If an individual is entitled to both a employee been alive and in receipt of an entitled to an age and service annuity or spouse or divorced spouse and survivor annuity under the Railroad Retirement disability annuity; or annuity, only the larger annuity will be Act at that time. (ii) At the time of his or her death. paid. However, if the individual so (2) Parent. The amount of a parent’s (f) Amount of reduction. (1) If a chooses, he or she may receive the tier II annuity component is 35 percent survivor annuitant becomes eligible for smaller annuity rather than the larger of the amount of the employee’s tier II a Government pension after June 1983, annuity. annuity component which would have the Board will reduce (but not below been payable in the month in which the zero) the tier I annuity component by § 228.22 Entitlement to more than one parent became entitled had the two-thirds of the amount of the monthly survivor annuity. employee been alive and in receipt of an pension. If the amount of the reduction If an individual is entitled to more annuity under the Railroad Retirement is not a multiple of 10 cents, it will be than one survivor annuity, only the Act at that time. However, if another 16372 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations survivor is entitled, or potentially insurance amount, less all applicable year prior to her death or at the time the entitled, to a tier II annuity component, reductions (net tier I), on November 1, spouse’s annuity began. the parent tier II annuity component is 1983. However, if the employee’s zero. annuity was reduced for a social § 228.53 Spouse minimum guarantee. (3) Child. The amount of each child’s security benefit but the survivor’s tier II annuity component is 15 percent annuity is not, the takeback amount is The Railroad Retirement Act provides of the employee’s tier II annuity the amount the employee’s annuity that a spouse should receive no less as component which would have been would have been reduced for the a widow(er) than he or she received as payable in the month in which the child takeback if the employee’s annuity had a spouse. However, if the widow(er) became entitled had the employee been not been reduced for a social security becomes entitled to a social security alive and in receipt of an annuity under benefit. If the employee’s annuity had benefit, thus reducing his or her the Railroad Retirement Act at that time. not been tiered or was being paid under (c) Minimum tier II survivor annuity the overall minimum, the Board will annuity, the spouse minimum guarantee components. If the total tier II annuity compute the amount of the tier II is payable only to the extent that it components payable to survivors is less takeback that would have been guarantees the amount that the than 35 percent of the employee’s tier II applicable to the employee’s annuity. widow(er) would have received as a annuity component which would have (2) The tier II takeback amount for spouse had he or she been entitled to a been payable in the month the survivors survivors whose annuity beginning date social security benefit in the month became entitled had the employee been is before January 1, 1984 is equal to 5 preceding the employee’s death in an alive and in receipt of an annuity under percent of the survivor’s net tier I amount equal to the amount of the the Railroad Retirement Act at that time, annuity component, before deduction social security benefit payable at the the individual tier II annuity on account of work, on November 1, time the widow(er) first became entitled components computed in paragraph (b) 1983. to the social security benefit. of this section shall be increased (3) The tier II takeback will be applied proportionally so that the total of all in accord with the above paragraphs in § 228.60 Cost-of-living increase. such tier II annuity components equals any case where the employee died or 35 percent of the employee’s tier II retired before January 1, 1984. If the The tier II annuity component of a annuity component. employee died or retires after December survivor annuity under the Railroad (d) Maximum tier II annuity 31, 1983, or the employee never retired Retirement Act is increased by 32.5 components. If the total tier II survivor and dies after December 31, 1993, no percent of the percentage increase under annuity components payable to takeback will be applied to the section 215(i) of the Social Security Act survivors exceeds 80 percent of the survivor’s annuity. employee’s tier II annuity component (c) No takeback is applied if the at the same time that any such increase which would have been payable in the survivor tier II annuity amount before is payable. The amount of the increase month the survivors became entitled the takeback is applied is $10.00 or less is published in the Federal Register had the employee been alive and and cost-of-living increases have not annually. The cost-of-living is payable entitled to an annuity under the increased the tier II annuity amount to beginning with the benefit payable for Railroad Retirement Act at that time, the more than $10.00 (the takeback may the month of December of the year for individual tier II annuity components never reduce the tier II to an amount which the increase is due. The increase computed in paragraph (b) of this less than $10.00). is paid in the January payment. In section shall be reduced proportionally addition, in determining the amount of so that the total of all such tier II § 228.52 Restored amount. the tier II component at the time the annuity components totals no more than (a) General. A restored amount is survivor annuity begins, all cost-of- 80 percent of the employee’s tier II added to the tier II annuity component living increases that were applied or annuity component. of a widow(er)’s annuity whose annuity would have been applied after the (e) Age reduction. The tier II annuity is reduced for receipt of an employee employee’s annuity beginning date or annuity under the Railroad Retirement component of a widow(er) or disabled death and prior to the surviving annuity Act provided either the employee or the widow(er) is subject to reduction by the beginning date are taken into widow(er) had ten years of creditable same age reduction factor as is consideration. applicable to the tier I annuity railroad service prior to January 1, 1975. component. See § 228.15 of this part. (b) Amount. The amount of the tier II restored amount for a widow(er) is the PART 237Ð[REMOVED AND § 228.51 Takeback amount. difference between the amount payable RESERVED] (a) The 1983 amendments to the as a widow(er) under the Railroad Railroad Retirement Act provided that a Retirement Act of 1937 as increased by 2. Part 237 consisting of §§ 237.101– portion of the cost-of-living increases all annual social security cost-of-living 237.108 is hereby removed and payable on the tier I annuity component percentage increases from January 1, reserved. be offset from the amount of the tier II 1975, until the later of the annuity annuity. This amount is the takeback beginning date of either the employee’s Dated: March 24, 1995. amount. The amount of the takeback annuity or the widow(er)’s annuity and and its application depends on the the amount payable to the widow(er) By authority of the Board. employee and survivor’s annuity under the Railroad Retirement Act of beginning dates. 1974 under the rules set forth in this For the Board, (b)(1) The tier II takeback amount for part. survivors whose annuity beginning date (c) Widower. In order to qualify for an Beatrice Ezerski, is January 1, 1984 or later is usually the annuity under the 1937 Act and thus for Secretary to the Board. amount of the employee’s takeback a restored amount, a widower must have amount. That amount is equal to 5 been dependent on his spouse for at [FR Doc. 95–7778 Filed 3–29–95; 8:45 am] percent of the employee’s primary least 50 percent of his support in the BILLING CODE 7905±01±P Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16373 DEPARTMENT OF HEALTH AND 1990, ‘‘eligible spouse’’ means an aged, by removing language regarding when HUMAN SERVICES blind, or disabled individual who is the the members of an eligible couple live husband or wife of another aged, blind, apart and adding language to explain Social Security Administration or disabled individual and who is living how to pay a couple when one member with that eligible individual on the first is temporarily absent and subject to the 20 CFR Part 416 day of the month, or, in any case in $30 payment limit while an inpatient at RIN 0960±AC98 which either spouse files an application a medical facility where Medicaid is for benefits or requests restoration of paying more than half the cost of care. Supplemental Security Income for the eligibility under the SSI program during The reference to § 416.531 is also Aged, Blind, and Disabled Elimination the month, at the time the application changed to § 416.413. of Waiting Period for Termination of or request is filed. • In § 416.432, a portion of the Couple Status This final rule revises the definition introductory language and paragraphs of ‘‘eligible spouse’’ in §§ 416.120(c)(14) (a) and (b) are removed. The removed AGENCY: Social Security Administration, and 416.1801(c) to reflect section 8012 material concerns members of an HHS. of Public Law 101–239. eligible couple who have separated. ACTION: Final rule. The legislative history does not • Section 416.532(e), which provides indicate that Congress intended to treat for essential person increments when SUMMARY: This final rule implements couples who are temporarily separate as members of an eligible couple live apart, section 8012(a) of Pub. L. 101–239 individuals. Therefore, the rule also is removed. which, effective October 1, 1990, provides in § 416.1801(c) that an • In § 416.554, the last sentence of the changed the definition of the term individual is considered to be living text and example three regarding ‘‘eligible spouse’’ as it is used in the with an eligible spouse during separated members of an eligible couple supplemental security income (SSI) temporary absences as defined in are revised. program. Under the former definition of § 416.1149 and while receiving • In § 416.1130(c), the last sentence, ‘‘eligible spouse,’’ members of an SSI continued benefits under section which refers to members of an eligible eligible couple who began living apart 1611(e)(1)(E) or (G) of the Act. couple who have different living could not be treated as individuals for In addition to revising the definition arrangements, is removed. SSI eligibility and payment purposes of ‘‘eligible spouse’’ in §§ 416.120(c)(14) • In § 416.1147, paragraphs (a) and during the first 6 months following the and 416.1801(c), a number of other (d) are removed and the remaining month in which they began living apart. sections in the regulations are revised to paragraphs are revised and redesignated The statutory change eliminated the 6- eliminate provisions which refer to the (a), (b), (c), and (d) respectively. The month waiting period. The final rule prior rule for terminating eligible couple deleted material deals with valuation of revises the definition of ‘‘eligible status based on a 6-month period of in-kind support and maintenance for a spouse’’ contained in the regulations as living apart. These sections are as member of an eligible couple who is well as makes a number of other follows: separated from his or her spouse. conforming changes. Finally, the rule • Section 416.305(b)(1) is revised to • Section 416.1802(b) is revised to eliminates provisions in the regulations remove language regarding the eligible remove language referring to pertaining to eligible couples living spouse living apart from the eligible computation of benefits for separated apart. individual for a period of 6 months. members of an eligible couple. • • EFFECTIVE DATE: March 30, 1995. Section 416.412 is amended by Section 416.1806 is revised to contain rules on who will be considered FOR FURTHER INFORMATION CONTACT: using more precise language in the first the individual’s spouse, if more than Regarding this document—Harry Short, sentence when referring to a member of one person would qualify. Legal Assistant, 3–B–1 Operations an eligible couple temporarily residing in a medical care facility. We also make • Section 416.1811 is removed as a Building, 6401 Security Boulevard, result of the revision to § 416.1806. The Baltimore, MD 21235, (410) 965–6243; a technical change for convenience in future updating by showing the cross-reference to § 416.1811 in regarding eligibility or filing for § 416.1101 (definition of ‘‘spouse’’) is benefits—our national toll-free number, payment amounts for such eligible couple in a table rather than as text and also removed. 1–800–772–1213. • updating the table with the amounts Section 416.1830(a)(1) is revised to SUPPLEMENTARY INFORMATION: Section published in the Federal Register at: provide that, if the members of an 1614(b) of the Social Security Act (the 52 FR 41672 (10/29/87) eligible couple begin living apart, they Act), as in effect until October 1, 1990, 53 FR 43932 (10/31/88) will be treated as individuals beginning defined an eligible spouse as ‘‘an aged, 54 FR 45801 (10/31/89) with the month following the calendar blind, or disabled individual who is the 54 FR 53751 (12/29/89) month they stopped living together. husband or wife of another aged, blind, 55 FR 45856 (10/31/90) • In § 416.1832 (c) and (d), the cross- or disabled individual and who has not 56 FR 55325 (10/25/91) references to § 416.1806 (b) and (c) been living apart from such other aged, 57 FR 48619 (10/27/92) respectively are revised to refer to blind, or disabled individual for more 58 FR 58004 (10/28/93) § 416.1806 (a)(2) and (a)(3) respectively. than six months.’’ One effect of this 59 FR 54464 (10/31/94) This change is necessitated by the definition was to create a 6-month • Section 416.414 is revised to revision we are making to § 416.1806. waiting period before the members of an specify that the computations in • Section 416.1832(d) is revised to eligible couple, who begin living apart, paragraphs (b)(2) and (b)(3) are provide that, if a marital relationship could be treated as individuals for SSI applicable only when one or both has been found to exist solely because purposes. members of an eligible couple are a man and woman are living together Section 8012 of Public Law 101–239 temporarily absent from home per and leading others to believe that they (the Omnibus Budget Reconciliation Act § 416.1149(c)(1). As their absence is are husband and wife, such marital of 1989) eliminated the 6-month waiting temporary, they are not separated. relationship will be considered to end period by revising the definition of an • Section 416.430, which deals with as of the date the man and woman stop eligible spouse. Effective October 1, essential person increments, is revised living together. 16374 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations Public Comments Paperwork Reduction Act of 1980 (c) Miscellaneous. *** This final regulation imposes no (14) Eligible spouse means an aged, This rule was published as a Notice blind, or disabled individual who is the of Proposed Rulemaking on March 8, additional reporting and recordkeeping requirements necessitating clearance by husband or wife of another aged, blind, 1994 (59 FR 10766). A 60-day comment OMB. or disabled individual and who is living period was provided. We did not with that individual (see § 416.1801(c)). (Catalog of Federal Domestic Assistance receive any public comments. We are, * * * * * therefore, adopting the rule essentially Program No. 93.807, Supplemental Security Income.) 3. The authority citation for subpart C as proposed with the exception of some continues to read as follows: nonsubstantive technical revisions and List of Subjects in 20 CFR Part 416 the addition of the technical and update Administrative Practice and Authority: Secs. 1102, 1611 and 1631(a), (d), and (e) of the Social Security Act; 42 change being made to § 416.412 Procedure, Aged, Blind, Disability U.S.C. 1302, 1382, 1383(a), (d), and (e). discussed above. benefits, Public assistance programs, Reporting and recordkeeping 4. In § 416.305, paragraph (b)(1) is Obsolete Social Security Rulings requirements, Supplemental Security revised to read as follows: Income Enactment of Section 8012(a) of § 416.305 You must file an application to Public Law 101–239 has made the Dated: February 1, 1995. receive supplemental security income following Social Security Rulings (SSRs) Shirley Chater, benefits. obsolete: 76–28, 76–41, and 88–11c. Commissioner of Social Security. * * * * * Therefore, we are rescinding these SSRs Approved: March 24, 1995 (b) Exceptions. You need not file a simultaneously with the publication of Donna E. Shalala, new application if— this final rule. Secretary of Health and Human Services. (1) You have been receiving benefits Regulatory Procedures as an eligible spouse and are no longer For the reasons set out in the living with your husband or wife; preamble, part 416 of chapter II of title Executive Order No. 12866 20 of the Code of Federal Regulations is * * * * * We have consulted with the Office of amended as follows: 5. The authority citation for subpart D continues to read as follows: Management and Budget (OMB) and PART 416ÐSUPPLEMENTAL determined that this rule does not meet Authority: Sec. 1102, 1611 (a), (b), (c), and SECURITY INCOME FOR THE AGED, the criteria for a significant regulatory (e), 1612, 1617, and 1631 of the Social BLIND AND DISABLED. Security Act; 42 U.S.C. 1302, 1382 (a), (b), action under Executive Order 12866. (c), and (e), 1382a, 1382f, and 1383. Thus, it was not subject to OMB review. 1. The authority citation for subpart A continues to read as follows: 6. Section 416.412 is revised to read Regulatory Flexibility Act Authority: Secs. 1102 and 1601–1634 of as follows: We certify that this final regulation the Social Security Act; 42 U.S.C. 1302 and § 416.412 Amount of benefits; eligible 1381–1383c; sec. 212 of Pub. L. 93–66, 87 will not have a significant economic couple. Stat. 155 and sec. 502(a) of Pub. L. 94–241, impact on a substantial number of small 90 Stat. 268. The benefit under this part for an entities because it will affect only 2. In § 416.120, paragraph (c)(14) is eligible couple, neither of whom is individuals and states. Therefore, a revised to read as follows: temporarily residing in a medical care regulatory flexibility analysis as facility as described in § 416.1149(c)(1) provided in Public Law 96–354, the § 416.120 General definitions and use of nor is a qualified individual (as defined Regulatory Flexibility Act, is not terms. in § 416.211), shall be payable at the required. * * * * * following rate: Effective date Percentage increase Rate per year Rate per month 07/82 7.4 $5,116.80 $426.40 07/83 3.5 5,476.80 456.40 01/84 3.5 5,664.00 472.00 01/85 3.5 5,856.00 488.00 01/86 3.1 6,048.00 504.00 01/87 1.3 6,120.00 510.00 01/88 4.2 6,384.00 532.00 01/89 4.0 6,636.00 553.00 01/90 4.7 6,948.00 579.00 01/91 5.4 7,320.00 610.00 01/92 3.7 7,596.00 633.00 01/93 3.0 7,824.00 652.00 01/94 2.6 8,028.00 669.00 01/95 2.8 8,244.00 687.00 The monthly rate is reduced by the 7. In § 416.414, the paragraph § 416.414 Amount of benefits; eligible amount of the couple’s income which is headings for paragraphs (b)(2) and (b)(3) individual or eligible couple in a medical not excluded pursuant to subpart K of are revised to read as follows: care facility. this part. * * * * * (b) * * * Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16375 (2) Eligible couple both of whom are following the month of the change. This couple’s overpayment can be waived will be temporarily absent from home in shall be done by determining which evaluated separately. medical care facilities as described in benefit rate to use for an eligible couple 13. The authority citation for subpart § 416.1149(c)(1). *** according to §§ 416.412 or 416.413 and K continues to read as follows: (3) Eligible couple with one spouse 416.414 and applying the requirements Authority: Secs. 1102, 1602, 1611, 1612, who is temporarily absent from home as in § 416.420(a). 1613, 1614(f), 1621, and 1631 of the Social described in § 416.1149(c)(1). *** 10. The authority citation for subpart Security Act; 42 U.S.C. 1302, 1381a, 1382, * * * * * E continues to read as follows: 1382a, 1382b, 1382c(f), 1382j, and 1383; sec. 8. Section 416.430 is revised to read Authority: Secs. 1102, 1601, 1602, 1611(c), 211 of Pub. L. 93–66, 87 Stat. 154. as follows: and 1631 (a)–(d) and (g) of the Social Security Act; 42 U.S.C. 1302, 1381, 1381a, § 416.1101 [Amended] § 416.430 Eligible individual with eligible 1382(c), and 1383 (a)–(d) and (g). 14. In § 416.1101, the parenthetical spouse; essential person(s) present. reference in the definition of ‘‘Spouse’’ (a) When an eligible individual with § 416.532 [Amended] which reads ‘‘(See §§ 416.1806 through an eligible spouse has an essential 11. In § 416.532, paragraph (e) is 416.1811)’’ is revised to read ‘‘(See person (§ 416.222) living in his or her removed. § 416.1806).’’ home, or when both such persons each 12. Section 416.554 is revised to read 15. In § 416.1130, paragraph (c) is has an essential person, the increase in as follows: revised to read as follows: the rate of payment is determined in § 416.554 Waiver of adjustment or § 416.1130 Introduction. accordance with §§ 416.413 and recoveryÐagainst equity and good 416.532. The income of the essential conscience. * * * * * person(s) is included in the income of We will waive adjustment or recovery (c) How we value in-kind support and the couple and the payment due will be of an overpayment when an individual maintenance. Essentially, we have two equally divided between each member on whose behalf waiver is being rules for valuing the in-kind support of the eligible couple. considered is without fault (as defined and maintenance which we must count. (b) When one member of an eligible in § 416.552) and adjustment or The one-third reduction rule applies if couple is temporarily absent in recovery would be against equity and you are living in the household of a accordance with § 416.1149(c)(1) and good conscience. Adjustment or person who provides you with both § 416.222(c) and either one or both recovery is considered to be against food and shelter (§§ 416.1131 through individuals has an essential person, add equity and good conscience if an 416.1133). The presumed value rule the essential person increment to the individual changed his or her position applies in all other situations where you benefit rate for the member of the for the worse or relinquished a valuable are receiving countable in-kind support couple who is actually residing with the right because of reliance upon a notice and maintenance (§§ 416.1140 through essential person and include the income that payment would be made or because 416.1145). If certain conditions exist, we of the essential person in that member’s of the incorrect payment itself. In do not count in-kind support and income. See § 416.414(b)(3). addition, adjustment or recovery is maintenance. These are discussed in 9. Section 416.432 is revised to read considered to be against equity and §§ 416.1141 through 416.1145. as follows: good conscience for an individual who 16. Section 416.1147 is revised to read as follows: § 416.432 Change in status involving a is a member of an eligible couple that couple; eligibility continues. is legally separated and/or living apart § 416.1147 How we value in-kind support When there is a change in status for that part of an overpayment not and maintenance for a couple. which involves the formation or received, but subject to recovery under (a) Both members of a couple live in dissolution of an eligible couple (for § 416.570. another person’s household and receive example, marriage, divorce), a Example 1: Upon being notified that he food and shelter from that person. redetermination of the benefit amount was eligible for supplemental security When both of you live in another shall be made for the months income payments, an individual signed a person’s household throughout a month subsequent to the month of such lease on an apartment renting for $15 a and receive food and shelter from that month more than the room he had previously formation or dissolution of the couple in occupied. It was subsequently found that person, we apply the one-third accordance with the following rules: eligibility for the payment should not have reduction to the Federal benefit rate for (a) When there is a dissolution of an been established. In such a case, recovery a couple (§ 416.1131). eligible couple and each member of the would be considered ‘‘against equity and (b) One member of a couple lives in couple becomes an eligible individual, good conscience.’’ another person’s household and the benefit amount for each person shall Example 2: An individual fails to take receives food and shelter from that be determined individually for each advantage of a private or organization person and the other is in a medical month beginning with the first month charity, relying instead on the award of institution. If one of you is living in the supplemental security income payments to household of another person who after the month in which the dissolution support himself. It was subsequently found occurs. This shall be done by that the money was improperly paid. provides you with both food and shelter determining the applicable benefit rate Recovery would be considered ‘‘against and the other is temporarily absent from for an eligible individual with no equity and good conscience.’’ the household as provided in eligible spouse according to §§ 416.410 Example 3: Mr. and Mrs. Smith—members § 416.1149(c)(1) (in a medical institution or 416.413 and 416.414 and applying of an eligible couple—separate in July. Later that receives Medicaid payments for his § 416.420(a). See § 416.1147a for the in July, Mr. Smith receives earned income or her care (§ 416.211(b)), we compute applicable income rules when in-kind resulting in an overpayment to both. Mrs. your benefits as if you were separately Smith is found to be without fault in causing eligible individuals (see § 416.414(b)(3)). support and maintenance is involved. the overpayment. Recovery from Mrs. Smith (b) When two eligible individuals of Mr. Smith’s part of the couple’s This begins with the first full calendar become an eligible couple, the benefit overpayment is waived as being against month one of you is in the medical amount will be determined for the equity and good conscience. Whether institution. The one living in another couple beginning with the first month recovery of Mr. Smith’s portion of the person’s household is eligible at an 16376 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations eligible individual’s Federal benefit rate considered to be living with an eligible § 416.1830 When we stop considering you and one-third of that rate is counted as spouse during temporary absences as and your spouse an eligible couple. income not subject to any income defined in § 416.1149 and while * * * * * exclusions. The one in the medical receiving continued benefits under (a) The calendar month after the institution cannot receive more than the section 1611(e)(1) (E) or (G) of the Act. month you stopped living with your rate described in § 416.414(b)(3)(i). * * * * * eligible spouse, or (c) Both members of a couple are 19. In § 416.1802, paragraph (b) is * * * * * subject to the presumed value rule. If revised to read as follows: 23. In § 416.1832, paragraphs (c) and the presumed value rule applies to both (d) are revised to read as follows: of you, we value any food, clothing, or § 416.1802 Effects of marriage on shelter you and your spouse receive at eligibility and amount of benefits. § 416.1832 When we consider your one-third of the Federal benefit rate for * * * * * marriage ended. a couple plus the amount of the general (b) If you have an eligible spouse— * * * * * income exclusion (§ 416.1124(c)(12)), (1) Counting income. If you apply for (c) We decide that either of you is not unless you can show that their value is or receive SSI benefits and have an a spouse of the other for purposes of less as described in § 416.1140(a)(2). eligible spouse as defined in husband’s or wife’s social security (d) One member of a couple is subject § 416.1801(c), we will count your insurance benefits, if we considered you to the presumed value rule and the combined income and calculated the married only because of other is in a medical institution. If one benefit amount for you as a couple. § 416.1806(a)(2); or of you is subject to the presumed value Section 416.412 gives a detailed (d) You and your spouse stop living rule and the other is temporarily absent statement of the amount of benefits and together, if we considered you married from the household as provided in subpart K of this part explains how we only because of § 416.1806(a)(3). § 416.1149(c)(1) (in a medical institution count income for an eligible couple. [FR Doc. 95–7847 Filed 3–29–95; 8:45 am] that receives Medicaid payments for his (2) Counting resources. If you have an BILLING CODE 4190±29±M or her care (§ 416.211(b)), we compute eligible spouse as defined in your benefits as if you were separately § 416.1801(c), we will count the value of eligible individuals (see § 416.414(b)(3)). your combined resources (money and Food and Drug Administration This begins with the first full calendar property), minus certain exclusions, and month that one of you is in the medical use the couple’s resource limit when we 21 CFR Part 450 institution (§ 416.211(b)). We value any determine your eligibility. Section [Docket No. 94N±0302] food, clothing, or shelter received by the 416.1205(b) gives a detailed statement of one outside of the medical institution at the resource limit for an eligible couple. Antibiotic Drugs; Bleomycin Sulfate; one-third of an eligible individual’s * * * * * Withdrawal of Regulation Federal benefit rate, plus the amount of 20. Section 416.1806 is revised to read AGENCY: Food and Drug Administration, the general income exclusion as follows: (§ 416.1124(c)(12)), unless you can show HHS. that their value is less as described in § 416.1806 Whether you are married and ACTION: Final rule; withdrawal of § 416.1140(a)(2). The one in the medical who is your spouse. regulation. institution cannot receive more than the (a) We will consider someone to be SUMMARY: rate described in § 416.414(b)(3)(i). your spouse (and therefore consider you The Food and Drug 17. The authority citation for subpart to be married) for SSI purposes if— Administration (FDA) is withdrawing a regulation that established standards for R continues to read as follows: (1) You are legally married under the an antibiotic drug, nonsterile bleomycin laws of the State where your and his or Authority: Secs. 1102, 1614 (b) (c), and (d), sulfate bulk drug substance. This action her permanent home is (or was when and 1631 (d)(1) and (e) of the Social Security is taken to allow interested persons an Act; 42 U.S.C. 1302, 1382c (b), (c), and (d), you lived together); opportunity to comment on the and 1383 (d)(1) and (e). (2) We have decided that either of you standards for nonsterile bleomycin is entitled to husband’s or wife’s Social 18. In § 416.1801(c), the definition of sulfate bulk drug substance. In a future Security insurance benefits as the ‘‘eligible spouse’’ is revised to read as issue of the Federal Register, the agency spouse of the other (this decision will follows: will issue a proposed rule setting forth not affect your SSI benefits for any standards for bulk nonsterile bleomycin § 416.1801 Introduction. month before it is made); or sulfate. * * * * * (3) You and an unrelated person of EFFECTIVE DATE: (c) * * * the opposite sex are living together in March 30, 1995. Eligible spouse means a person— the same household at or after the time FOR FURTHER INFORMATION CONTACT: (1) Who is eligible for SSI, you apply for SSI benefits, and you both Tamar S. Nordenberg, Center for Drug (2) Whom we consider the spouse of lead people to believe that you are Evaluation and Research (HFD–366), another person who is eligible for SSI, husband and wife. Food and Drug Administration, 7500 and (b) if more than one person would Standish Pl., Rockville, MD 20855, 301– (3) Who was living in the same qualify as your husband or wife under 594–2041. household with that person on— paragraph (a) of this section, we will SUPPLEMENTARY INFORMATION: In the (i) The date of filing an application for consider the person you are presently Federal Register of October 4, 1994 (59 benefits (for the month of an living with to be your spouse for SSI FR 50484), FDA published a new application); purposes. antibiotic regulation setting forth (ii) The date a request for standards for a nonsterile bleomycin reinstatement of eligibility is filed (for § 416.1811 [Removed] sulfate bulk drug substance (21 CFR the month of such request); or 21. Section 416.1811 is removed. 450.10). This was published as a final (iii) The first day of the month, for all 22. In § 416.1830, paragraph (a) is rule to become effective on November 3, other months. An individual is revised to read as follows: 1994. This new regulation differed from Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16377 the monograph standards for sterile Dated: March 18, 1995. consistency of applications for funding bleomycin sulfate bulk drug, set forth in Murray M. Lumpkin, for other programs, as described in 24 21 CFR 450.10a, in two respects: The Deputy Director, Center for Drug Evaluation CFR 91.2(b). The programs affected, for new regulation did not require sterility and Research. which conforming changes are at the bulk stage, and the new regulation [FR Doc. 95–7802 Filed 3–29–95; 8:45 am] necessary to published program did not require testing for pyrogens at BILLING CODE 4160±01±F requirements, are HOPE for Public and the bulk stage. Indian Housing Homeownership Bristol-Myers Squibb Co., the sponsor Program (‘‘HOPE 1’’) (program guidelines codified as Appendix A to of the innovator product, filed a petition DEPARTMENT OF HOUSING AND Subtitle A of 24 CFR), HOPE for for stay pursuant to 21 CFR 10.35, URBAN DEVELOPMENT objecting to FDA’s decision to Homeownership of Multifamily Units promulgate the new regulation without Office of the Secretary Program (‘‘HOPE 2’’) (program notice and a prior opportunity for guidelines codified as Appendix B to public comment. On November 9, 1994, 24 CFR Subtitle A, Appendices A and Subtitle A of 24 CFR), Lead-Based Paint Hazard Reduction Program (Part 35), FDA agreed to stay the effective date of B, and Parts 91, 248, 570, 572, 582, 583, Prepayment of Low Income Housing the monograph for nonsterile bleomycin 882, 889 and 890 Mortgages (Part 248), HOPE for sulfate bulk drug substance to [Docket No. R±94±1731; FR±3611±F±08] Homeownership of Single Family reconsider the manner in which the Homes Program (Part 572), Shelter Plus agency promulgated the new RIN 2501±AB72 Care Program (Part 582), Supportive monograph. A copy of FDA’s letter Housing Program (Part 583), Section 8 notifying Bristol-Myers Squibb Co. of Consolidated Plan for Community Moderate Rehabilitation Single Room the stay is on file in the Dockets Planning and Development Programs: Occupancy Program for Homeless Management Branch (HFA–305), Food Conforming Changes to Program Regulations Individuals (Part 882, Subpart H), and Drug Administration, rm. 1–23, Supportive Housing for the Elderly 12420 Parklawn Dr., Rockville, MD AGENCY: Office of the Secretary, HUD. Program (Part 889), and Supportive 20857. In the Federal Register of March ACTION: Final rule; technical Housing for Persons With Disabilities 1, 1995 (60 FR 11026), FDA published amendment. Program (Part 890). The regulations (or a stay of the monograph for nonsterile guidelines, in the case of HOPE 1 and bleomycin sulfate bulk drug substance. SUMMARY: This rule amends the HOPE 2) for all of these programs are Because of the issues that may arise Department’s existing regulations for amended by this rule, except for the based on the coexistence of alternative programs that refer to the Lead-Based Paint Hazard Reduction standards for nonsterile bleomycin Comprehensive Housing Affordability Program, for which a separate sulfate bulk drug and sterile bleomycin Strategy (CHAS) to replace references to rulemaking is underway. sulfate bulk drug, and because several the CHAS with references to the In addition, the Community manufacturers have demonstrated an document that has replaced it—the Development Block Grant (CDBG) interest in manufacturing bulk Consolidated Plan. A final rule was program regulations are being amended bleomycin sulfate and finished dosage published on January 5, 1995, that in this rule to make the provision in the forms for the drug, FDA finds that it is revised 24 CFR part 91 to replace the CDBG rule concerning the deadline for appropriate to provide an opportunity CHAS with the consolidated plan as the submitting the consolidated plan for public comment on the standards. document that embodies a jurisdiction’s consistent with the provision in the Therefore, FDA is withdrawing the determination of housing needs and consolidated plan rule. (Section 91.15 regulation for nonsterile bleomycin planned use of HUD funds to meet those provides that a consolidated plan must sulfate bulk drug substance, and will needs. be submitted no later than August 16 of propose a new regulation setting forth EFFECTIVE DATE: February 6, 1995. the federal fiscal year for which funding standards for nonsterile bleomycin FOR FURTHER INFORMATION CONTACT: is sought, whereas § 570.304(c)(1) states sulfate bulk drug substance in a future Joseph F. Smith, Director, Policy that the first working day of September issue of the Federal Register. Coordination, Office of Community is the deadline.) Another technical correction being Planning and Development, 451 Therefore, under the Federal Food, made in this rule is to remove from 24 Seventh Street SW., Washington, DC Drug, and Cosmetic Act and under CFR part 91 a provision that conflicts 20410–7000, telephone (202) 708–1283 authority delegated to the Commissioner with a State CDBG program provision. (voice) or (202) 708–2565 (TDD). (These of Food and Drugs, 21 CFR part 450 is (Section 570.483(d) prescribes the are not toll-free telephone numbers.) amended as follows: manner in which States meet the Copies of this rule will be made requirements for funding an activity List of Subjects in 21 CFR Part 450 available on tape or large print for those under the ‘‘urgent need’’ national with impaired vision that request them. Antibiotics. objective. Section 91.320(g)(1)(i) of the They may be obtained at the above consolidated plan rule prescribes PART 450ÐANTITUMOR ANTIBIOTIC address. another method.) The Department DRUGS SUPPLEMENTARY INFORMATION: wishes to preserve the method specified in the CDBG State program regulation, 1. The authority citation for 21 CFR I. Background so this rule removes the provision from part 450 continues to read as follows: A final rule providing for a the consolidated plan rule. Authority: Sec. 507 of the Federal Food, consolidated plan and a single Drug, and Cosmetic Act (21 U.S.C. 357). performance report for all HUD II. Justification for Final Rule community planning and development In general, the Department publishes § 450.10 [Removed] formula grant programs was published a rule for public comment before issuing 2. Section 450.10 Bleomycin sulfate is on January 5, 1995, effective February 6, a rule for effect, in accordance with its removed. 1995, which affects determinations of own regulations on rulemaking, 24 CFR 16378 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations part 10. However, part 10 does provide general well-being, and, thus is not 24 CFR Part 889 for exceptions from that general rule subject to review under the Order since Aged, Capital advance programs, where the agency finds good cause to it is only a technical, conforming rule. Grant programs—housing and omit advance notice and public Impact on Small Entities community development, Loan participation. The good cause programs—housing and community requirement is satisfied when prior The Secretary, in accordance with the development, Low and moderate public procedure is ‘‘impracticable, Regulatory Flexibility Act (5 U.S.C. income housing, Rent subsidies, unnecessary, or contrary to the public 605(b)), has reviewed this rule before Reporting and recordkeeping interest.’’ (24 CFR 10.1) The Department publication and by approving it certifies requirements. finds that good cause exists to publish that this rule will not have a significant this rule for effect without first impact on a substantial number of small 24 CFR Part 890 soliciting public comment, in that prior entities, because it imposes no new Civil rights, Grant programs—housing public procedure is unnecessary. This burdens on jurisdictions. and community development, rule is technical in nature, making Individuals with disabilities, Loan amendments to program regulations to Regulatory Agenda programs—housing and community conform their terminology to the status This rule was not listed in the development, Low and moderate of the current consolidated plan Department’s Semiannual Regulatory income housing, Mental health regulations at 24 CFR part 91. No Agenda published on November 14, programs, Reporting and recordkeeping purpose would be served by requesting 1994 (59 FR 57632, 57641), under requirements. comments on this technical change. In Executive Order 12866 and the Accordingly, Appendices A and B to fact, this rule is effective retroactive to Regulatory Flexibility Act. Subtitle A of title 24 Code of Federal the effective date of the final Regulations and parts 91, 248, 570, 572, consolidated plan rule, so that the List of Subjects 582, 583, 882, 889, and 890 of title 24 references to the CHAS, which is 24 CFR Part 91 of the Code of Federal Regulations are superseded by the Consolidated Plan, amended as follows: can instead refer to the then operative Aged, Grant programs—housing and Appendix A to Subtitle A of 24 CFR document. community development, Homeless, Individuals with disabilities, Low and [Amended] Findings and Certifications moderate income housing, Reporting 1. Appendix A is amended in the Impact on the Environment and recordkeeping requirements. following way: a. In Section II., Definitions, the 24 CFR Part 248 A Finding of No Significant Impact definition of the term ‘‘CHAS’’ is with respect to the environment was Intergovernmental relations, Loan removed and a definition of the term made in accordance with HUD programs—housing and community ‘‘Consolidated Plan’’ is added in its regulations at 24 CFR part 50 that development, Low and moderate place, to read as follows: implement section 102(2)(C) of the income housing, Mortgage insurance, Consolidated plan. The document National Environmental Policy Act of Reporting and recordkeeping that is submitted to HUD that serves as 1969, 42 U.S.C. 4332, in connection requirements. the planning document (comprehensive with the Consolidated Plan final rule. housing affordability strategy and That Finding of No Significant Impact, 24 CFR Part 570 community development plan) of the applicable to this technical conforming jurisdiction and an application for rule, is available for public inspection Administrative practice and procedure, Grant programs—housing funding under Community Planning and copying during regular business and Development formula grant hours (7:30 a.m. to 5:30 p.m.) in the and community development, American Samoa, Northern Mariana Islands, programs, which is prepared in Office of the Rules Docket Clerk, room accordance with the process prescribed 10276, 451 Seventh Street SW., Pacific Islands Trust Territory, Puerto Rico, Virgin Islands. in 24 CFR part 91. Washington, DC 20410–0500. b. In Section III, under the heading of Federalism Impact 24 CFR Part 572 Section 310. Applications for planning grants., in paragraph (b)(4), the term Condominiums, Cooperatives, The General Counsel, as the ‘‘CHAS’’ is removed wherever it Government property, Grant programs— Designated Official under section 6(a) of appears, and the term ‘‘Consolidated housing and community development, Executive Order 12612, Federalism, has Plan’’ is added in each of those places. determined that the policies contained Low and moderate income housing, c. In Section IV, under the heading of in this rule do not have significant Nonprofit organizations, Reporting and Section 415. Applications for impact on States or their political recordkeeping requirements. implementation grants., in paragraph subdivisions since the requirements of 24 CFR Part 582 (b)(17), the term ‘‘CHAS’’ is removed the rule are limited to technical wherever it appears, and the term amendments necessary to carry out Homeless, Rent subsidies, Reporting ‘‘Consolidated Plan’’ is added in each of accurately the provisions of programs and recordkeeping requirements, those places. whose regulations were not amended in Supportive housing programs—housing the original Consolidated Plan rule. and community development, Appendix B to Subtitle A of 24 CFR Supportive services. [Amended] Impact on the Family 24 CFR Part 583 2. Appendix B is amended in the The General Counsel, as the following way: Designated Official under Executive Homeless, Rent subsidies, Reporting a. In Section II., Definitions, the Order 12606, The Family, has and recordkeeping requirements, definition of the term ‘‘CHAS’’ is determined that this rule does not have Supportive housing programs—housing removed and a definition of the term potential for significant impact on and community development, ‘‘Consolidated Plan’’ is added in its family formation, maintenance, and Supportive services. place, to read as follows: Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16379 Consolidated plan. The document which the eligible low income housing consolidated plan regulations, 24 CFR that is submitted to HUD that serves as is located; and part 91, subpart F. the planning document (comprehensive * * * * * (c) Indian tribes and the Insular Areas housing affordability strategy and of Guam, the U.S. Virgin Islands, community development plan) of the PART 570ÐCOMMUNITY American Samoa, and the Northern jurisdiction and an application for DEVELOPMENT BLOCK GRANTS Mariana Islands. These entities are not funding under Community Planning required to have a consolidated plan or 8. The authority citation for part 570 and Development formula grant to make consolidated plan certifications. continues to read as follows: programs, which is prepared in An application by an Indian tribe or accordance with the process prescribed Authority: 42 U.S.C. 3535(d) and 5300– other applicant for a project that will be in 24 CFR part 91. 5320. located on a reservation of an Indian b. In Section III, under the heading of 9. In § 570.304, paragraph (c)(1) is tribe will not require a certification by Section 310. Applications for planning revised to read as follows: the tribe or the State. However, where grants., in paragraph (b)(4), the term an Indian tribe is the applicant for a § 570.304 Making of grants. ‘‘CHAS’’ is removed wherever it project that will not be located on a appears, and the term ‘‘Consolidated * * * * * reservation, the requirement for a Plan’’ is added in each of those places. (c) * * * certification under paragraph (b) of this (1) Either the consolidated plan is not c. In Section IV, under the heading of section will apply. received by August 16 of the federal (d) Timing of consolidated plan Section 415. Applications for fiscal year for which funds are certification submissions. Unless implementation grants., in paragraph appropriated or the consolidated plan is otherwise set forth in the NOFA, the (b)(17), the term ‘‘CHAS’’ is removed not approved under 24 CFR part 91, required certification that the wherever it appears, and the term subpart F—in which case, the grantee application for funding is consistent ‘‘Consolidated Plan’’ is added in each of will forfeit the entire entitlement with the HUD-approved consolidated those places. amount; or plan must be submitted by the funding PART 91ÐCONSOLIDATED * * * * * application submission deadline announced in the NOFA. SUBMISSIONS FOR COMMUNITY § 570.509 [Amended] PLANNING AND DEVELOPMENT 10. Section 570.509 is amended by PART 582ÐSHELTER PLUS CARE PROGRAMS removing from paragraph (d) the word 13. The authority citation for part 582 ‘‘CHAS’’ wherever it appears and 3. The authority citation for part 91 is revised to read as follows: continues to read as follows: adding in its place the words ‘‘consolidated plan’’. Authority: 42 U.S.C. 11403 note and Authority: 42 U.S.C. 3535(d), 3601–3619, 3535(d). 5301–5315, 11331–11388, 12701–12711, PART 572ÐHOPE FOR 12741–12756, and 12901–12912. 14. Section 582.120 is revised to read HOMEOWNERSHIP OF SINGLE as follows: § 91.2 [Amended] FAMILY HOMES PROGRAM (HOPE 3) § 582.120 Consolidated plan. 4. Section 91.2 is amended by 11. The authority citation for part 572 (a) Applicants that are States or units removing from paragraph (b)(10) the continues to read as follows: of general local government. The phrase, ‘‘subpart E’’, and adding in its Authority: 42 U.S.C. 3535(d) and 12891. applicant must have a HUD-approved place the phrase, ‘‘subpart F’’. 12. Section 572.400 is revised to read complete or abbreviated consolidated § 91.320 [Amended] as follows: plan, in accordance with 24 CFR part 91, and must submit a certification that 5. Section 91.320 is amended by § 572.400 Consolidated plan. the application for funding is consistent removing paragraph (g)(1)(i) and by (a) Applicants that are States or units with the HUD-approved consolidated removing the paragraph designation of general local government. The plan. Funded applicants must certify in (g)(1)(ii). applicant must have a HUD-approved a grant agreement that they are PART 248ÐPREPAYMENT OF LOW complete or abbreviated consolidated following the HUD-approved INCOME HOUSING MORTGAGES plan, in accordance with 24 CFR part consolidated plan. If the applicant is a 91, and must submit a certification that State, and the project will be located in 6. The authority citation for part 248 the application for funding is consistent a unit of general local government that continues to read as follows: with the HUD-approved consolidated is required to have, or has, a complete plan. Funded applicants must certify in consolidated plan, or that is applying Authority: 12 U.S.C. 1715l note, 4101 note, and 4101–4124; 42 U.S.C. 3535(d). a grant agreement that they are for Shelter Plus Care assistance under following the HUD-approved the same Notice of Fund Availability 7. In § 248.177, paragraph (b)(6) is consolidated plan. (NOFA) and will have an abbreviated revised to read as follows: (b) Applicants that are not States or consolidated plan with respect to that units of general local government. The application, the State also must submit § 248.177 Delegated responsibility to State applicant must submit a certification by agencies. a certification by the unit of general the jurisdiction in which the proposed local government that the State’s * * * * * project will be located that the application is consistent with the unit of (b) * * * applicant’s application for funding is general local government’s HUD- (6) A certification by the public consistent with the jurisdiction’s HUD- approved consolidated plan. official responsible for submitting the approved consolidated plan. The (b) Applicants that are not States or consolidated plan under 24 CFR part 91 certification must be made by the unit units of general local government. The that the proposed activities are of general local government or the State, applicant must submit a certification by consistent with the approved in accordance with the consistency the jurisdiction in which the proposed consolidated plan of the State within certification provisions of the project will be located that the 16380 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations jurisdiction is following its HUD- in accordance with the consistency (iii) Timing of consolidated plan approved consolidated plan and the certification provisions of the certification submission. Unless applicant’s application for funding is consolidated plan regulations, 24 CFR otherwise set forth in the NOFA, the consistent with the jurisdiction’s HUD- part 91, subpart F. required certification must be submitted approved consolidated plan. The (c) Indian tribes and the Insular Areas by the funding application submission certification must be made by the unit of Guam, the U.S. Virgin Islands, deadline announced in the NOFA. All of general local government or the State, American Samoa, and the Northern certifications must be signed by the in accordance with the consistency Mariana Islands. These entities are not public official responsible for certification provisions of the required to have a consolidated plan or submitting the consolidated plan to consolidated plan regulations, 24 CFR to make consolidated plan certifications. HUD, and they must meet the part 91, subpart F. An application by an Indian tribe or consistency certification requirements (c) Indian tribes and the Insular Areas other applicant for a project that will be of the consolidated plan regulations, 24 of Guam, the U.S. Virgin Islands, located on a reservation of an Indian CFR part 91, subpart F. American Samoa, and the Northern tribe will not require a certification by * * * * * Mariana Islands. These entities are not the tribe or the State. However, where required to have a consolidated plan or an Indian tribe is the applicant for a PART 889ÐSUPPORTIVE HOUSING to make consolidated plan certifications. project that will not be located on a FOR THE ELDERLY An application by an Indian tribe or reservation, the requirement for a other applicant for a project that will be 19. The authority citation for part 889 certification under paragraph (b) of this continues to read as follows: located on a reservation of an Indian section will apply. tribe will not require a certification by (d) Timing of consolidated plan Authority: 42 U.S.C. 3535(d), 8013. the tribe or the State. However, where certification submissions. Unless 20. In § 889.270, paragraph (b)(3) is an Indian tribe is the applicant for a otherwise set forth in the NOFA, the revised to read as follows: project that will not be located on a required certification that the reservation, the requirement for a application for funding is consistent § 889.270 Application contents. certification under paragraph (b) of this with the HUD-approved consolidated * * * * * section will apply. plan must be submitted by the funding (b) * * * (d) Timing of consolidated plan application submission deadline (3) The Sponsor must submit a certification submissions. Unless announced in the NOFA. certification by the jurisdiction in which otherwise set forth in the NOFA, the the proposed project will be located that required certification that the PART 882ÐSECTION 8 HOUSING the Sponsor’s application is consistent application for funding is consistent ASSISTANCE PAYMENTS PROGRAM with the jurisdiction’s HUD-approved with the HUD-approved consolidated FOR EXISTING HOUSING consolidated plan. The certification plan must be submitted by the funding must be made by the unit of general application submission deadline 17. The authority citation for part 882 local government or the State, in announced in the NOFA. continues to read as follows: accordance with the consistency AUTHORITY: 12 U.S.C. 1701q, 42 certification requirements of 24 CFR PART 583ÐSUPPORTIVE HOUSING U.S.C. 3535(d). part 91, subpart F, and as may be further PROGRAM 18. In § 882.805, paragraph (b)(2) is described in the NOFA. This certification is not required where the 15. The authority citation for part 583 revised to read as follows: proposed project will be located in the is revised to read as follows: § 882.805 PHA application process, HUD Insular Area of Guam, the U.S. Virgin Authority: 42 U.S.C. 11389 and 3535(d). review and selection, ACC execution, and Islands, American Samoa or the pre-rehabilitation activities. 16. Section 583.155 is revised to read Northern Mariana Islands. Unless as follows: * * * * * otherwise set forth in the NOFA, the (b) * * * required certification must be submitted § 583.155 Consolidated plan. (2) Consolidated plan. (i) Certification by the application submission deadline (a) Applicants that are States or units of consistency. Except as provided in announced in the NOFA. All of general local government. The paragraph (b)(2)(ii) of this section, the certifications must be signed by the applicant must have a HUD-approved applicant must submit a certification by public official responsible for complete or abbreviated consolidated the jurisdiction in which the proposed submitting the consolidated plan to plan, in accordance with 24 CFR part project will be located that the HUD, and they must meet the 91, and must submit a certification that jurisdiction is following, and the consistency certification requirements the application for funding is consistent applicant’s application for funding is of the consolidated plan regulations, 24 with the HUD-approved consolidated consistent with, the jurisdiction’s HUD- CFR part 91, subpart F. approved consolidated plan. The plan. Funded applicants must certify in * * * * * a grant agreement that they are certification must be made by the unit following the HUD-approved of general local government or the State, PART 890ÐSUPPORTIVE HOUSING consolidated plan. in accordance with the consolidated FOR PERSONS WITH DISABILITIES (b) Applicants that are not States or regulations at 24 CFR part 91, subpart F, units of general local government. The and as may be further described in the 21. The authority citation for part 890 applicant must submit a certification by NOFA. continues to read as follows: the jurisdiction in which the proposed (ii) Exception. The consolidated plan Authority: 42 U.S.C. 3535(d) and 8013. project will be located that the certification is not required where the 22. In § 890.265, paragraph (b)(3) is applicant’s application for funding is proposed project will be located on a revised to read as follows: consistent with the jurisdiction’s HUD- reservation of an Indian tribe or the approved consolidated plan. The Insular Area of Guam, the U.S. Virgin § 890.265 Application contents. certification must be made by the unit Islands, American Samoa, or the * * * * * of general local government or the State, Northern Mariana Islands. (b) * * * Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16381 (3) The Sponsor must submit a DEPARTMENT OF THE TREASURY through IV of § 1.72–9, on individual certification by the jurisdiction in which annuitant mortality. the proposed project will be located that Internal Revenue Service the Sponsor’s application is consistent Need for Correction 26 CFR Part 1 with the jurisdiction’s HUD-approved As published, T.D. 8115 contains an consolidated plan. The certification [T.D. 8115] error which may prove to be misleading must be made by the unit of general and is in need of clarification. local government or the State, in Income Taxes; Unisex Annuity Tables; accordance with the consistency Correction List of Subjects in 26 CFR Part 1 certification requirements of 24 CFR part 91, subpart F, and as may be further AGENCY: Internal Revenue Service, Income taxes, Reporting and described in the NOFA. This Treasury. recordkeeping requirements. ACTION: Correcting amendment. certification is not required where the Accordingly, 26 CFR part 1 is proposed project will be located in the corrected by making the following Insular Area of Guam, the U.S. Virgin SUMMARY: This document contains a correcting amendment: Islands, American Samoa or the correction to the final regulations (T.D. 8115), which were published Friday, Northern Mariana Islands. Unless PART 1ÐINCOME TAXES otherwise set forth in the NOFA, the December 19, 1986 (51 FR 45690), relating to the annuity tables used to required certification must be submitted Paragraph 1. The authority citation by the application submission deadline compute the portion of the amount received as an annuity that is includible for part 1 continues to read in part as announced in the NOFA. All follows: certifications must be signed by the in gross income. public official responsible for EFFECTIVE DATE: March 30, 1995. Authority: 26 U.S.C. 7805 * * * submitting the consolidated plan to FOR FURTHER INFORMATION CONTACT: Par. 2. In § 1.72–9, Table VII, years 21 HUD, and they must meet the Brant Goldwyn (202) 622–6040, (not a through 30, is amended by revising the consistency certification requirements toll-free call). of the consolidated plan regulations, 24 entry for age 39 to read as follows: SUPPLEMENTARY INFORMATION: CFR part 91, subpart F. § 1.72±9 Tables. Background * * * * * * * * * * Dated: March 21, 1995. The final regulations that are the Henry G. Cisneros, subject of this correction adopt the Secretary. mortality assumptions used to develop [FR Doc. 95–7730 Filed 3–29–95; 8:45 am] the proposed annuity tables. Thus, the BILLING CODE 4210±32±P revised tables are based, as are Tables I TABLE VIIÐPERCENT VALUE OF REFUND FEATURE; DURATION OF GUARANTEED AMOUNT YearsÐÐ Age 21 22 23 24 25 26 27 28 29 30 ******* 39 ...... 2 2 2 2 3 3 3 3 4 4 ******* * * * * * Federal Register for Friday, July 8, Correction of Publication Cynthia E. Grigsby, 1994, (59 FR 34971) relating to Accordingly, the publication of the Chief, Regulations Unit Assistant Chief intercompany transfer pricing. final regulations (TD 8552), which are Counsel (Corporate). EFFECTIVE DATE: July 8, 1994. the subject of FR Doc. 94–16456, is [FR Doc. 95–7849 Filed 3–29–95; 8:45 am] corrected as follows: FOR FURTHER INFORMATION CONTACT: BILLING CODE 4830±01±P Sim Seo at (202) 622–3840, (not a toll-free § 1.482±2 [Corrected] call). 1. On page 35002, column 2, § 1.482– 26 CFR Part 1 SUPPLEMENTARY INFORMATION: 2 (a)(1)(ii)(A), introductory text, line 2, [TD 8552] the language ‘‘indebtedness. Paragraph Background RIN 1545±AL80 (e) of this’’ is corrected to read ‘‘indebtedness. Paragraph (a) of this’’. Intercompany Transfer Pricing The final regulations that are the subject of these corrections contains 2. On page 35002, column 2, § 1.482– Regulations Under Section 482; 2 (a)(1)(ii)(B), line 2, the language Correction changes made to section 482 of the Internal Revenue Code. ‘‘paragraph (e) does not apply to so AGENCY: Internal Revenue Service, much’’ is corrected to read ‘‘paragraph Treasury. Need for Correction (a) does not apply to so much’’. ACTION: Correction to final regulations. As published, the final regulations 3. On page 35005, columns 2 and 3, contain errors which may prove to be the undesignated paragraph following SUMMARY: This document contains misleading and are in need of § 1.482–2(a)(3)(iv) is removed and corrections to final regulations (TD § 1.482–2 (a)(3)(iv) is corrected to read clarification. 8552), which were published in the as follows: 16382 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations § 1.482±2 Determination of taxable income ‘‘arm’s length range pursuant to § 1.482– Need for Correction in specific situations. 1(e)(2)(iii)(A). If the effects of the As published, the final regulations (a) * * * geographic’’. contain errors that are misleading and in (3) * * * 10. On page 35012, column 1, need of correction. (iv) Fourth, section 482 and § 1.482–3 (b)(4), Example 4, last line, paragraphs (b) through (d) of this the language ‘‘pursuant to § 1.482– Correction of Publication section and §§ 1.482–3 through 1.482–7, 1(e)(iii)(B).’’ is corrected to read Accordingly, the publication of the if applicable, may be applied by the ‘‘pursuant to § 1.482–1(e)(2)(iii)(B).’’. final regulations which are the subject district director to make any appropriate of FR Doc. 94–12294, is corrected as allocations, other than an interest rate 11. On page 35014, column 1, follows: adjustment, to reflect an arm’s length § 1.482–3 (c)(4), Example 4, line 1, the transaction based upon the principal paragraph designation (i) is removed, § 25.2523(a)±1 [Corrected] amount of the loan or advance and the and Example 4, line 15, the language ‘‘to § 1.482–3(c)(iii)(B), must be made to’’ is On page 30103, references interest rate as adjusted under ‘‘25.2523(a)–1(d)’’ in column 1, lines 2 paragraph (a)(3) (i), (ii) or (iii) of this corrected to read ‘‘to § 1.482– 3(c)(3)(iii)(B), must be made to’’. through 5 from the bottom of the table, section. For example, assume that two are corrected as follows: commonly controlled taxpayers enter 12. On page 35015, column 1, into a deferred payment sale of tangible § 1.482–3 (d)(3)(iii)(B), line 6, the Section Remove Add property and no interest is provided, language ‘‘gross profit margin affects the and assume also that section 483 is reliability’’ is corrected to read ‘‘gross ***** applied to treat a portion of the stated profit markup affects the reliability’’. 25.2523(a)±1(e) second sen- sales price as interest, thereby reducing § 1.482±6 [Corrected] the stated sales price. If after this tence ...... * * * * * * recharacterization of a portion of the 13. On page 35027, column 2, 25.2523(a)±1(e) stated sales price as interest, the § 1.482–6 (c)(3)(ii)(C)(1), line 3, the third sentence ****** 25.2523(a)±1(e) recomputed sales price does not reflect language ‘‘paragraph (c)(2)(ii)(C)(1);’’ is corrected to read ‘‘paragraph fourth sen- an arm’s length sales price under the tence ...... * * * * * * principles of § 1.482–3, the district (c)(2)(ii)(C)(1) of this section;’’. 25.2523(a)±1(e) director may make other appropriate Cynthia E. Grigsby, fifth sentence .****** allocations (other than an interest rate Chief, Regulations Unit, Assistant Chief adjustment) to reflect an arm’s length Counsel (Corporate). ***** sales price. [FR Doc. 95–7858 Filed 3–29–95; 8:45 am] Cynthia E. Grigsby, * * * * * BILLING CODE 4830±01±P 4. On page 35008, column 2, § 1.482– Chief, Regulations Unit, Assistant Chief 2 (b)(7)(ii)(C), line 14 from the top of the Counsel (Domestic). column, the language ‘‘subdivision (c). 26 CFR Part 25 [FR Doc. 95–7856 Filed 3–29–95; 8:45 am] For purposes of this’’ is corrected to BILLING CODE 4830±01±P read ‘‘paragraph (b)(7)(ii)(C). For [TD 8540] purposes of this’’. DEPARTMENT OF LABOR 5. On page 35008, column 2, § 1.482– RIN 1545±AM81 2 (b)(7)(iv), line 7, the language ‘‘For purposes of this subdivision,’’ is Valuation Tables; Correction Wage and Hour Division corrected to read ‘‘For purposes of this 29 CFR Part 825 paragraph (b)(7)(iv),’’. AGENCY: Internal Revenue Service (IRS), 6. On page 35008, column 3, § 1.482– Treasury. RIN 1215±AA85 2 (b)(7)(v), Example 1, the last two lines, ACTION: Correction to final regulations. the language ‘‘of X as described in The Family and Medical Leave Act of 1993; Correction subdivision (i) of this subparagraph.’’ is SUMMARY: This document contains corrected to read ‘‘of X as described in corrections to final regulations [TD AGENCY: Wage and Hour Division, paragraph (b)(7)(i) of this section.’’. 8540], which were published in the Labor. 7. On page 35008, column 3, § 1.482– Federal Register for Friday, June 10, ACTION: Correction to final regulations. 2 (b)(7)(v), Example 2, the last two lines, 1994 (59 FR 30100). The final the language ‘‘activities within the regulations relate to the valuation of SUMMARY: This document contains meaning of subdivision (ii) of this annuities, interests for life or terms of corrections to the final regulations subparagraph.’’ is corrected to read years, and remainder or reversionary implementing the Family and Medical ‘‘activities within the meaning of interests. Leave Act of 1993, 29 CFR part 825, paragraph (b)(7)(ii) of this section.’’. which were published in the Federal EFFECTIVE DATE: June 10, 1994. 8. On page 35010, column 1, § 1.482– Register Friday, January 6, 1995 (60 FR 2 (b)(7)(v), Example 13, line 6, the FOR FURTHER INFORMATION CONTACT: 2180). language ‘‘meaning of paragraph (d)(4) William L. Blodgett, (202) 622–3090 EFFECTIVE DATE: This correction of this section).’’ is corrected to read (not a toll-free number). ‘‘meaning of § 1.482–7T).’’. document is effective on March 30, SUPPLEMENTARY INFORMATION: 1995. § 1.482±3 [Corrected] FOR FURTHER INFORMATION CONTACT: Background 9. On page 35012, column 1, § 1.482– J. Dean Speer, Division of Policy and 3 (b)(4), Example 4, lines 20 and 21, the The final regulations that are the Analysis, Wage and Hour Division, language ‘‘arms’s length range pursuant subject of these corrections are under Employment Standards Administration, to § 1.482–1(e)(iii)(A). If the effects of sections 170, 642, 664, 7520, 2031 and U.S. Department of Labor, Room S– the geographic’’ is corrected to read 2512 of the Internal Revenue Code. 3506, 200 Constitution Avenue, NW., Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16383 Washington, DC 20210; telephone (202) not aware of the reason, and the the citation in parentheses is corrected 219–8412. This is not a toll-free number. employee desires that the leave be to read ‘‘§ 825.310(b)’’. counted as FMLA leave, the employee SUPPLEMENTARY INFORMATION: must notify the employer within two § 825.500 [Corrected] Background business days of returning to work of 17. On page 2263, in the second Final regulations implementing the the reason for the leave.’’. column, at the end of § 825.500(g)(3), add, ‘‘(Approved by the Office of Family and Medical Leave Act of 1993 § 825.209 [Corrected] (FMLA), 29 U.S.C. 2601 et seq., were Management and Budget under control 7. On page 2251, in the second published in the Federal Register on number 1215–0181.)’’. column, in § 825.209(e), the last January 6, 1995. On February 3, 1995, sentence of that section is corrected to § 825.702 [Corrected] the effective date of the final regulations read ‘‘See § 825.212(c).’’ 18. On page 2266, in the second was deferred from February 6, 1995, column, in § 825.702(d)(2), in the until April 6, 1995 (see 60 FR 6658). As § 825.210 [Corrected] twenty-sixth line, the citation is published on January 6, the final 8. On page 2252, in the first column, corrected to read ‘‘§ 825.207(d)(2)’’. regulations contain errors which may in § 825.210(f), the last sentence of that prove to be misleading and are in need section is corrected to read ‘‘See § 825.800 [Corrected] of clarification. In some instances, cross- paragraph (c) of this section and 19. On page 2269, in the first column, references and citations of sections of § 825.207(d)(2).’’ in the second full paragraph numbered the regulations contain inadvertent ‘‘(3)’’ in the definition of Serious health errors and should be corrected as set § 825.214 [Corrected] condition, in the ninth line, after forth below. 9. On page 2253, in the second ‘‘stomach,’’ insert ‘‘minor’’. column, in § 825.214(a), the last Correction sentence of that section is corrected to Appendix A to Part 825Ð[Corrected] In rule document 94–32342 beginning read ‘‘See also § 825.106(e) for the on page 2180 in the issue of Friday, obligations of joint employers.’’ 20. On page 2269, in the third January 6, 1995, make the following column, in the ninth entry of that corrections: § 825.301 [Corrected] column in Appendix A entitled 10. On page 2256, in the third ‘‘COBRA,’’ the third citation is corrected § 825.100 [Corrected] column, in § 825.301(b)(1)(v), in the last to read ‘‘825.213(e).’’ 1. On page 2238, in the third column, sentence of that section, the citation in Signed in Washington, DC, this 10th day of in § 825.100(a), in the eighteenth line, the parentheses is corrected to read March, 1995. the citation in the parentheses is ‘‘(see § 825.310);’’. Maria Echaveste, corrected to read ‘‘see § 825.306(b)(4)’’. § 825.307 [Corrected] Administrator, Wage and Hour Division. § 825.110 [Corrected] 11. On page 2259, in the third [FR Doc. 95–7808 Filed 3–29–95; 8:45 am] 2. On page 2242, in the second column, in § 825.307(a)(2), the last BILLING CODE 4510±27±M column, in § 825.110(c), in the thirty- sentence of that section is corrected to second line, the reference to read ‘‘See also paragraphs (e) and (f) of ‘‘§ 825.500(e)’’ is corrected to read this section.’’ DEPARTMENT OF THE INTERIOR ‘‘§ 825.500(f).’’ § 825.310 [Corrected] Bureau of Land Management § 825.111 [Corrected] 12. On page 2261, in the first column, 3. On page 2243, in the second in § 825.310(f), in the sixth line, 43 CFR Public Land Order 7126 column, in § 825.111(c), the last ‘‘paragraph (c) of this section’’ is [CA±930±1430±01; CACA 29698] sentence of that section is corrected to corrected to read ‘‘paragraph (e) of this read ‘‘See § 825.105(c).’’ section’’. Withdrawal of Public Land for the § 825.202 [Corrected] Coachella Division, All-American Canal § 825.312 [Corrected] System; California 4. On page 2247, in the first column, 13. On page 2261, in the second in § 825.202(c), in the sixteenth line, column, in § 825.312(b), in the eighth AGENCY: Bureau of Land Management, ‘‘for a child or parent with’’ is corrected line, the citations in the parentheses are Interior. to read ‘‘for a child with’’. corrected to read ‘‘§§ 825.305 and ACTION: Public land order. § 825.207 [Corrected] 825.311’’. SUMMARY: This order withdraws 359.19 5. On page 2249, in the first column, § 825.312 [Corrected] acres of public land from surface entry in § 825.207(d)(2), the second sentence 14. On page 2261, in the third and mining for a period of 20 years for is corrected to read, ‘‘If the employer column, in § 825.312(c), the last the operation and maintenance of the designates the leave as FMLA leave in sentence of that section in parentheses Bureau of Reclamation’s Coachella accordance with § 825.208, the is corrected to read ‘‘(See §§ 825.310 Division of the All-American Canal employee’s FMLA 12-week leave and 825.311.)’’. System. The land has been and will entitlement may run concurrently with remain open to mineral leasing and the § 825.312 [Corrected] a workers’ compensation absence when Materials Act of 1947. the injury is one that meets the criteria 15. On page 2262, in the first column, EFFECTIVE DATE: March 30, 1995. for a serious health condition.’’. in § 825.312(f), in the last sentence of that section, the citation in parentheses FOR FURTHER INFORMATION CONTACT: § 825.208 [Corrected] is corrected to read ‘‘§ 825.219’’. Duane Marti, BLM California State 6. On page 2250, in the third column, Office, 2800 Cottage Way, Sacramento, in § 825.208(e)(1), the second sentence § 825.500 [Corrected] California 95825; 916–979–2858. is corrected to read, ‘‘If leave is taken for 16. On page 2263, in the first column, By virtue of the authority vested in an FMLA reason but the employer was in § 825.500(c)(4), in the seventh line, the Secretary of the Interior by section 16384 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 204 of the Federal Land Policy and P.O. Box 45155, Salt Lake City, Utah order unless, as a result of a review Management Act of 1976, 43 U.S.C. 84145–0155, 801–539–4119. conducted before the expiration date 1714 (1988), it is ordered as follows: By virtue of the authority vested in pursuant to section 204(f) of the Federal 1. Subject to valid existing rights, the the Secretary of the Interior by Section Land Policy and Management Act of following described public land is 204 of the Federal Land Policy and 1976, 43 U.S.C. 1714(f) (1988), the hereby withdrawn from settlement, sale, Management Act of 1976, 43 U.S.C. Secretary determines that the location, or entry under the general land 1714 (1988), it is ordered as follows: withdrawal shall be extended. 1. Subject to valid existing rights, the laws, including the United States Dated: March 21, 1995. mining laws (30 U.S.C. Ch. 2 (1988)), following described public land is Bob Armstrong, but not from the Materials Act of 1947 hereby withdrawn from settlement, sale, or leasing under the mineral leasing location, or entry under the general land Assistant Secretary of the Interior. laws, for the operation and maintenance laws, including the United States [FR Doc. 95–7814 Filed 3–29–95; 8:45 am] of the Bureau of Reclamation’s mining laws (30 U.S.C. Ch. 2 (1988)), BILLING CODE 4310±DQ±P Coachella Division of the All-American but not from leasing under the mineral Canal System: leasing laws, to protect a Bureau of Land Management recreation area: 43 CFR Public Land Order 7128 San Bernardino Meridian Salt Lake Meridian [UT±942±1430±01; UTU±2036, UTU±4061, T. 7 S., R. 10 E., UTU±42919] Sec. 18, lots 1 and 2 of the NW1⁄4, N1⁄2 lot T. 21 S., R. 24 E., 1 1 Sec. 24, lots 11 to 21, inclusive, and 2 of the SW ⁄4, and NE ⁄4. Partial Revocation of Executive Order NE1⁄4SE1⁄4; The area described contains 359.19 acres in Sec. 25, lot 2 and N1⁄2NW1⁄4NE1⁄4. No. 5327, Public Land Order No. 4522, Riverside County. T. 20 S., R. 25 E., and Secretarial Order of June 11, 1943; 2. The withdrawal made by this order Sec. 22, lots 1, 2, and 4 to 8, inclusive, and Utah does not alter the applicability of those E1⁄2NW1⁄4NE1⁄4; 1 1 AGENCY: Bureau of Land Management, public land laws governing the use of Sec. 23, lots 7 and 8, and SW ⁄4NW ⁄4; 1 1 Interior. the land under lease, license, or permit, Sec. 26, lots 1 to 5, inclusive, NW ⁄4NW ⁄4, W1⁄2SE1⁄4NW1⁄4, W1⁄2NE1⁄4SW1⁄4, and or governing the disposal of their ACTION: Public Land Order. W1⁄2SE1⁄4SW1⁄4; mineral or vegetative resources other Sec. 27, lots 1 to 5, inclusive, and SUMMARY: This order revokes an than under the mining laws. SW1⁄4NE1⁄4; Executive order, a Secretarial order, and 3. This withdrawal will expire 20 Sec. 33, lots 1 to 4, inclusive, NW1⁄4NE1⁄4, a public land order insofar as they affect 1 1 1 years from the effective date of this and E ⁄2NE ⁄4NW ⁄4; 828.13 acres withdrawn for protection Sec. 34, lots 1 to 8, inclusive, NW1⁄4NE1⁄4, order unless, as a result of a review of oil shale resources (798.13 acres) and conducted before the expiration date W1⁄2NW1⁄4NW1⁄4, SW1⁄4NW1⁄4, 1 1 1 1 1 a first form reclamation withdrawal (30 pursuant to section 204(f) of the Federal SE ⁄4SW ⁄4, and N ⁄2NE ⁄4SE ⁄4; Sec. 35, lots 1 and 2, W1⁄2NE1⁄4NW1⁄4, and acres). The lands are no longer needed Land Policy and Management Act of SW1⁄4NW1⁄4. for these purposes and the revocation is 1976, 43 U.S.C. 1714(f) (1988), the T. 21 S., R. 25 E., needed to permit disposal of the lands Secretary determines that the Sec. 3, lots 1 to 4, inclusive, SW1⁄4NE1⁄4, through public sale under Section 203 1 1 1 1 1 1 1 withdrawal shall be extended. N ⁄2NW ⁄4, NE ⁄4SW ⁄4NW ⁄4, SE ⁄4NW ⁄4, of the Federal Land Policy and NE1⁄4NE1⁄4SW1⁄4, W1⁄2SW1⁄4, NW1⁄4SE1⁄4, Dated: March 21, 1995. Management Act of 1976. This action E1⁄2SW1⁄4SE1⁄4, SW1⁄4SW1⁄4SE1⁄4, and Bob Armstrong, W1⁄2E1⁄2SE1⁄4; will open the lands to surface entry and Assistant Secretary of the Interior. Sec. 4, lots 1 and 5; mining unless closed by overlapping [FR Doc. 95–7812 Filed 3–29–95; 8:45 am] Sec. 8, SE1⁄4NE1⁄4 and E1⁄2SE1⁄4; withdrawals or temporary segregations Sec. 9, lots 1 to 15, inclusive, SE1⁄4SW1⁄4, BILLING CODE 4310±40±P of record. The lands have been and will and N1⁄2SE1⁄4SE1⁄4; remain open to mineral leasing. Sec. 10, lots 1 to 6, inclusive, EFFECTIVE DATE: May 1, 1995. W1⁄2NE1⁄4NE1⁄4, NW1⁄4SW1⁄4NE1⁄4, 43 CFR Public Land Order 7127 W1⁄2NE1⁄4SW1⁄4, and N1⁄2SW1⁄4SW1⁄4; FOR FURTHER INFORMATION CONTACT: [UT±942±1430±01; UTU±71781] Sec. 16, lots 1 to 4, inclusive; Randy Massey, BLM Utah State Office, Sec. 17, lots 1, 2, 3, and 5 to 12, inclusive, P.O. Box 45155, Salt Lake City, Utah and N1⁄2N1⁄2SE1⁄4; 84145–0155, 801–539–4119. Withdrawal of Public Land for 1 1 Westwater Canyon of the Colorado Sec. 18, SE ⁄4SE ⁄4; By virtue of the authority vested in Sec. 19, lots 1, 2, and 6 to 13, inclusive, River; Utah 1 1 1 1 the Secretary of the Interior by Section NE ⁄4SE ⁄4, and SW ⁄4SE ⁄4; Sec. 20, lots 1 to 3, inclusive, and 204 of the Federal Land Policy and AGENCY: Bureau of Land Management, W1⁄2NE1⁄4NW1⁄4; Management Act of 1976, 43 U.S.C. Interior. Sec. 30, lot 1 and N1⁄2NE1⁄4NW1⁄4. 1714 (1988), it is ordered as follows: ACTION: Public Land Order. Unsurveyed lands in the Colorado River 1. Executive Order No. 5327 and bed, in the area described above, are Public Land Order No. 4522, which SUMMARY: This order withdraws 4,710 included in this order. The area described withdrew public land for protection of acres of public land from surface entry contains approximately 4,710 acres in Grand oil shale and associated values, are and mining for a period of 50 years for County. hereby revoked insofar as it affects the the Bureau of Land Management to 2. The withdrawal made by this order following described lands: protect the recreational, scenic, does not alter the applicability of those Salt Lake Meridian geologic, cultural, and fish and wildlife public land laws governing the use of T. 5 S., R. 19 E., values of the Westwater Canyon of the the lands under lease, license, or permit, Sec. 12, E1⁄2NE1⁄4, S1⁄2N1⁄2SW1⁄4NE1⁄4, and Colorado River. The land has been and or governing the disposal of their will remain open to mineral leasing. S1⁄2SW1⁄4NE1⁄4. mineral or vegetative resources other T. 7 S., R. 19 E., EFFECTIVE DATE: March 30, 1995. than under the mining laws. Sec. 1, lots 2 to 4, inclusive, SW1⁄4NE1⁄4, FOR FURTHER INFORMATION CONTACT: 3. This withdrawal will expire 50 SW1⁄4NW1⁄4, SE1⁄4SW1⁄4, and SW1⁄4SE1⁄4. Randy Massey, BLM Utah State Office, years from the effective date of this T. 7 S., R. 20 E., Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16385 Sec. 5, lots 3 and 4, SW1⁄4NW1⁄4, and opened to the operation of the public and time of restoration is unauthorized. SW1⁄4; land laws generally, subject to valid Any such attempted appropriation, Sec. 6, lots 1 and 2; existing rights, the provisions of existing including attempted adverse possession Sec. 15, NW1⁄4NE1⁄4. withdrawals, other segregations of under 30 U.S.C. 38 (1988), shall vest no The areas described aggregate 798.13 acres record, and the requirements of rights against the United States. Acts in Uintah County. applicable law. All valid applications required to establish a location and to 2. Secretarial Order, dated June 11, received at or prior to 9 a.m. on May 1, initiate a right of possession are 1943, which withdrew public land for 1995 shall be considered as governed by State law where not in the Jensen Unit of the Central Utah simultaneously filed at that time. Those conflict with Federal law. The Bureau of received thereafter shall be considered Project, for the Bureau of Reclamation, Land Management will not intervene in in the order of filing. is hereby revoked insofar as it affects the disputes between rival locators over following described land: 4. At 9 a.m. on May 1, 1995, the lands described in paragraphs 1 and 2 will be possessory rights since Congress has Salt Lake Meridian opened to location and entry under the provided for such determinations in T. 3 S., R. 22 E., United States mining laws, subject to local courts. Sec. 11, NW1⁄4SW1⁄4NE1⁄4 and valid existing rights, the provisions of Dated: March 21, 1995. S1⁄2SW1⁄4NE1⁄4. existing withdrawals, other segregations Bob Armstrong, The area described contains 30 acres in of record, and the requirements of Assistant Secretary of the Interior. Uintah County. applicable law. Appropriation of any of 3. At 9 a.m. on May 1, 1995, the lands the lands described in this order under [FR Doc. 95–7813 Filed 3–29–95; 8:45 am] described in paragraphs 1 and 2 will be the general mining laws prior to the date BILLING CODE 4310±DQ±P 16386 Proposed Rules Federal Register Vol. 60, No. 61 Thursday, March 30, 1995 This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: This b. The charge of deportability would contains notices to the public of the proposed proposed rule establishes an expedited be supported by clear, convincing, and issuance of rules and regulations. The administrative deportation process. unequivocal evidence, and a record purpose of these notices is to give interested Section 130004 of the Violent Crime would be maintained for judicial persons an opportunity to participate in the Control and Law Enforcement Act of review. rule making prior to the adoption of the final rules. 1994, Public Law 103–322, amended c. The alien would have an section 242A of the Immigration and opportunity to be represented by Nationality Act (Act), effective counsel in the deportation proceedings DEPARTMENT OF JUSTICE September 14, 1994, to authorize such a at no expense to the government. process. Amended section 242A(b) of d. The alien would have a reasonable Immigration and Naturalization Service the Act authorizes the Attorney General opportunity to inspect the evidence and to implement a deportation procedure rebut the allegations and/or charge 8 CFR Part 242 that eliminates hearings before within ten days, with an extension [INS No. 1672±94; AG Order No. 1957±95] immigration judges for certain aliens granted by the district director or chief convicted of serious criminal offenses. patrol agent for good cause shown. RIN 1115±AD76 Limited judicial review is authorized e. The person who renders the final upon the filing of a petition for review decision would not be the same person Administrative Deportation Procedures within 30 days after the administrative who issues the notice of the Service’s for Aliens Convicted of Aggravated deportation order is issued. Also, the intention to issue a final order (i.e. the Felonies Who Are Not Lawful Immigration and Nationality Technical charge). Permanent Residents Corrections Act of 1994, Public Law f. The alien would be able to seek 103–416, enacted October 25, 1994, review of the final order by filing a AGENCY: Immigration and Naturalization made minor technical changes to the petition for judicial review within 30 Service, Justice. statutory administrative deportation days. ACTION: Proposed rule. procedures. During the administrative deportation SUMMARY: This rule proposes to Before enactment of Public Law 103– process, the district direct or chief establish alternative administrative 322, except in the case of certain Visa patrol agent would determine the alien’s deportation procedures for aliens not Waiver Pilot Program and crewman custody status in accordance with admitted for permanent residence and violators, deportation proceedings were applicable provisions of section 242 of not eligible for any relief from required to be conducted before an the Act. The alien would be able to seek deportation who have been convicted of immigration judge pursuant to section review of the custody determination in aggravated felonies. This regulation is 242(b) of the Act. By enactment of habeas corpus proceedings. necessary to implement a recently Public Law 103–322, Congress provided Section 242(b) of the Act does not enacted statutory measure eliminating for a more streamlined deportation apply when the alien is eligible for relief the requirement for a hearing before an process for an alien who is convicted of from deportation under the Act. If the immigration judge and limiting judicial an aggravated felony and who is not a Service finds that the alien’s response review. While incorporation procedural lawful permanent resident. The presents a prima facie claim of statutory safeguards, it will expedite the procedure is available only if the alien eligibility for relief, the rule proposes deportation process in certain cases is not eligible for any form of relief from that the district director or chief patrol involving serious criminal offenses. deportation under the Act. Section agent (or their designee) shall terminate 242A(b)(4) requires the Attorney proceedings under section 242A(b) of DATES: Written comments must be General to prescribe regulations to the Act, and shall, where appropriate, submitted on or before May 30, 1995. conduct proceedings under the section. issue an order to show cause for the ADDRESSES: Please submit written This proposed rule authorizes a district purpose of initiating an immigration comments, in triplicate, to the Policy director or chief patrol agent to issue a judge proceeding under section 242(b) Directives and Instructions Branch, final administrative order of deportation of the Act. Immigration and Naturalization Service, in accordance with section 242A(b) of Limited judicial review of the final Room 5307, 425 I Street NW., the Act. administrative deportation order may be Washington, DC 20536. Attention: The proposed rule would require the obtained by filing a petition for review Public Comment Clerk. To ensure Service to perform certain functions to in accordance with section 106 of the proper handling, please reference INS afford the alien procedural protection Act. The review, however, is statutorily No. 1672–94 on your correspondence. during the administrative process: limited to: (1) Whether the person is in Comments are available for public a. The alien would be given fact the alien described in the order; (2) inspection at this location by calling reasonable notice of the charge of whether the person was not lawfully (202) 514–3048 to arrange for an deportability. The notice would set forth admitted for permanent residence at the appointment. allegations of fact and conclusions of time at which deportation proceedings FOR FURTHER INFORMATION CONTACT: law establishing that the alien is not a commenced; (3) whether the person is Leonard C. Loveless, Detention and lawful permanent resident, is deportable not eligible for any relief from Deportation Officer, Immigration and under section 241(a)(2)(A)(iii) of the Act deportation; (4) whether the alien has Naturalization Service, 425 I Street, (relating to conviction for an aggravated been convicted of an aggravated felony NW., Washington, D.C. 20536, felony), and is ineligible for relief from and such conviction has become final; Telephone (202) 514–2865. deportation. and (5) whether the alien was afforded Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16387 the procedures required by section Authority: 8 U.S.C. 1103, 1182, 1186a, (i) Has the privilege of being 242A(b)(4) of the Act. 1251, 1252, 1252 note, 1252a, 1252b, 1254, represented by counsel of the alien’s Sections 242(a) (2)(A) and (2)(B) of the 1362; 8 CFR part 2. choosing, at no expense to the at require the Service to detain, until the 2. In part 242, a new § 242.25 is added government, as long as counsel is order is executed, any aggravated felon to read as follows: authorized to practice in deportation who has not been ‘‘lawfully admitted.’’ proceedings; An alien who has been lawfully § 242.25 Proceedings under section (ii) May inspect the evidence admitted may be released from custody 242A(b) of the Act. supporting the Notice of Intent; and if the alien demonstrates to the (a) Definitions. As used in this (iii) May rebut the charges within ten satisfaction of the Attorney General that section— calendar days after service of such the alien is not a threat to the Deciding Service officer means a notice (or thirteen (13) days if service of community and is likely to appear for district director, chief patrol agent, or the Notice was by mail). The Notice of any scheduled proceedings. An his or her designated representative who Intent shall also advise the alien that he immigration judge is not authorized to is not the same person as the issuing or she may designate in writing, within consider (or redetermine) custody issues Service officer. ten calendar days of service of the under the rule. The alien may seek Issuing Service officer means any Notice of Intent (or thirteen calendar review of the bond determination by Service officer listed in § 242.1(a) as days if service is by mail), the country filing a writ of habeas corpus with the authorized to issue orders to show to which he or she chooses to be district court. cause. deported in accordance with section 243 Prima facie claim means a claim that, of the Act, in the event that a Final Regulatory Flexibility Act on its face and consistent with the Administrative Deportation Order is The Attorney General, in accordance evidence in the record of proceeding, issued, and that the Service will honor with 5 U.S.C. 605(b), certifies that this demonstrates present statutory such designation only to the extent rule does not have a significant adverse eligibility for a specific form of relief permitted under the terms, limitations, economic impact on a substantial from deportation under the Immigration and conditions of section 243 of the Act. number of small entities because the and Nationality Act (Act). (c) Alien’s response. (1) Time for affected parties are individual aliens (b) Preliminary consideration and response. The alien will have ten who have been ordered deported from notice of intent to issue a final calendar days from service of the Notice the United States. administrative deportation order; of Intent, or 13 calendar days if service commencement of proceedings. (1) is by mail, Executive Order No. 12866 Basis of Service charge. An issuing (1) To designate his or her choice of This rule is not considered to be a Service officer shall cause to be served country for deportation and ‘‘significant regulatory action’’ within upon the alien a notice of intent to issue (ii) To submit a written response the meaning of section 3(f) of E.O. a final administrative deportation order rebutting the allegations and/or charge 12866, Regulatory Planning and Review, (Notice of Intent, Form I–851) if he or and/or requesting the opportunity to and the Office of Management and she is satisfied that there is evidence review the government’s evidence. The Budget has waived its review process sufficient to support a finding that the alien should send his or her designation under section 6(a)(3)(A). individual: of country for deportation, and his or her written response to the charge, to Executive Order No. 12612 (i) Is an alien; (ii) Has not been lawfully admitted for the deciding Service officer at the This rule is not considered to have permanent residence; address provided in the Notice of Intent. Federalism implications warranting the (iii) Has been convicted (as If the final date for filing falls on a preparation of a Federalism Assessment demonstrated by one or more of the Saturday, Sunday, or legal holiday, the in accordance with section 6 of E.O. sources listed in § 3.41 of this chapter) time shall be extended to the next 12612. of an aggravated felony and such business day. The time for response may Executive Order 12606 conviction has become final; be extended by the deciding Service (iv) Is deportable under section officer for good cause shown in a The Attorney General certifies that 241(a)(2)(A)(iii) of the Act; and written request for extension received she has assessed this rule in light of the (v) Does not appear statutorily eligible within the time to submit a written criteria in E.O. 12606 and has for any relief from deportation under the response. The request must explain determined that this rule will not have Act. specifically why an extension is an impact on family formation, (2) Notice. Deportation proceedings necessary. A request for extension of maintenance, or general well-being. under section 242A(b) of the Act shall time for response will not automatically List of Subjects in 8 CFR Part 242 commence upon personal service of the toll the prescribed period (e.g., ten days) Notice of Intent upon the alien, as for that response. The alien will be Administrative practice and prescribed by § 103.5a(a)(2), 103.5a(b), permitted to file a response outside the procedure, Aliens, Deportation. and 103.5a(c)(2) of this chapter. The prescribed period only if the deciding Accordingly, part 242 of chapter I of Notice of Intent shall set forth the Service officer permits it. The alien title 8 of the Code of Federal preliminary determinations and inform may, in writing, choose to accept Regulations is proposed to be amended the alien of the Service’s intention to immediate issuance of a Final as follows: issue a final administrative order of Administrative Deportation Order. PART 242ÐPROCEEDINGS TO deportation (Final Administrative (2) Nature of response; request to DETERMINE DEPORTABILITY OF Deportation Order, Form I–851A) review evidence. The alien’s written ALIENS IN THE UNITED STATES: without a hearing before an immigration response must indicate which finding(s) APPREHENSION, CUSTODY, judge. This notice shall constitute the are being challenged and must be HEARING, AND APPEAL charging document. The Notice of Intent accompanied by affidavit(s), shall include allegations of fact and documentary information, or other 1. The authority citation for part 242 conclusions of law. It shall advise that specific evidence supporting the is revised to read as follows: the alien: challenge. if the written response 16388 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules requests the opportunity to review the the deciding Service officer finds that section 242(a)(2)(A) of the Act, pending government’s evidence, the alien will be deportation is supported by the proceedings under section 242A(b) of served with a copy of the evidence in requisite proof, he or she shall issue and the Act, the deciding Service officer the record of proceeding relied on by cause to be served upon the alien a shall not release an alien who has not the government to support the Final Administrative Deportation Order. been lawfully admitted. Pursuant to allegations and/or charge. The alien (iii) Secretary eligibility for relief; section 242(a)(2)(B) of the Act, the may, within ten days following service conversion to proceedings under section deciding Service officer may release an of the government’s evidence (thirteen 242(b) of the Act. If the deciding Service alien who has been lawfully admitted days if service is by mail), furnish a officer finds that the alien has presented based upon factors considered under final response in accordance with a prima facie claim of present statutory § 242.2(h) of this chapter. The decision paragraph (c)(1) of this section. Either eligibility for a specific form of relief of the deciding Service officer the alien’s initial written response or the from deportation, the deciding Service concerning custody or bond is not alien’s final response must be officer shall terminate the expedited administratively appealable during accompanied by an affidavit and a proceedings under section 242A(b) of proceedings initiated under section completed and signed application the Act, and shall, where appropriate, 242A(b) of the Act and this section. designed for any relief sought. issue an order to show cause for the (h) Record of proceeding. A record of (d) Determination by deciding Service purpose of initiating an immigration proceeding shall be maintained by the officer. (1) No response; acceptance of judge proceeding under section 242(b) Service for judicial review of the Final Final Administrative Deportation Order. of the Act. Administrative Deportation Order If (3) Termination of proceedings by sought by any petition for review. The (i) A timely response is not received deciding Service officer. Only the record of proceeding shall include, but by the deciding Service officer, or deciding Service officer may terminate not necessarily be limited to, the (ii) The alien accepts immediate proceedings under section 242A(b) of charging document (Notice of Intent); issuance of the Final Administrative the Act, in the exercise of his or her the Final Administrative Deportation Deportation Order, then the deciding discretion. Order; the alien’s response, if any; all Service officer shall issue and cause to (e) Proceedings commenced under evidence in support of the charges; and be served upon the alien a Final section 242(b) of the Act. In any any admissible evidence, briefs, or Administrative Deportation Order. The proceeding commenced under section documents submitted by either party determination of deportability must be 242(b) of the Act, if it appears that the respecting deportability or relief from supported by clear, convincing, and respondent’s case falls under the deportation. unequivocal evidence contained in the provisions of section 242A(b) of the Act, record of proceeding. the immigration judge may, upon the Dated: March 16, 1995. (2) Response submitted. (i) Service’s request, terminate the case Janet Reno, Insufficient rebuttal; no prima facie and, upon such termination, the Service Attorney General. claim or genuine issue of material fact. may commence administrative [FR Doc. 95–7754 Filed 3–29–95; 8:45 am] If the deciding Service officer finds that proceedings under section 242A(b) of BILLING CODE 4410±01±M the response fails to rebut the the Act. However, in the absence of any allegations and charge in the Notice of such request, the immigration judge Intent, fails to present a prima facie shall complete the pending proceeding DEPARTMENT OF TRANSPORTATION claim of relief from deportation under commenced under section 242(b) of the the Act, and fails to raise a genuine Act. Federal Aviation Administration issue of material fact, he or she shall (f) Executing final order of deciding issue and cause to be served upon the Service officer— 14 CFR Part 39 (1) Thirty (30) calendar days. Upon alien a Final Administrative Deportation [Docket No. 94±NM±177±AD] Order. The determination of the issuance of a Final Administrative deportability must be supported by Deportation Order, the Service shall Airworthiness Directives; Boeing clear, convincing, and unequivocal issue a warrant of deportation issued in Model 727 and Model 737 Series evidence contained in the record of accordance with 8 CFR part 243.2; such Airplanes Equipped With J.C. Carter proceeding. warrant shall be executed no sooner Company Fuel Valve Actuators (ii) Additional evidence required. If than 30 calendar days after the date the the deciding Service officer finds that Final Administrative Deportation Order AGENCY: Federal Aviation the alien’s response raises a genuine is issued, unless the 30-day period is Administration, DOT. issue of material fact regarding the waived in writing by the alien. The 72- ACTION: Supplemental notice of preliminary findings, he or she hour provisions of § 243.3(b) of this proposed rulemaking; reopening of (A) May request additional chapter shall not apply. comment period. information from any source, including (2) Place to which deported. The the alien, as he or she may deem deciding Service officer shall designate SUMMARY: This document revises an appropriate, or the country of deportation, in the earlier proposed airworthiness directive (B) Issue an order to show cause to manner prescribed by section 243(a) of (AD), applicable to certain Boeing initiate deportation proceedings under the Act. Model 727 and Model 737 series section 242(b) of the Act. If the deciding (g) Arrest and detention. At the time airplanes, that would have required Service officer considers additional of issuance of a Notice of Intent or at replacement of the actuator of the information from a source other than the any time thereafter and up to the time engine fuel shutoff valve and the fuel alien, that evidence shall be provided to the alien becomes the subject of a system crossfeed valve with an the alien, and the alien may, within ten warrant of deportation, the alien may be improved actuator. That proposal was days of service thereof (thirteen days if arrested and taken into custody under prompted by reports indicating that, service is by mail) furnish a response to the authority of a warrant of arrest during ground acceptance tests on the deciding Service officer. If, after issued by an officer listed in Model 737 series airplanes, the actuator considering all additional information, § 242.2(c)(1) of this chapter. Pursuant to clutch on the engine shutoff and Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16389 crossfeed valves slipped at cold summarizing each FAA-public contact version of the service bulletin are temperatures due to improper concerned with the substance of this identical to those described in the functioning. This action revises the proposal will be filed in the Rules earlier version of the service bulletin. proposed rule by expanding the Docket. However, the later version expands the applicability to include an additional Commenters wishing the FAA to effectivity listing to include additional actuator. The actions specified by this acknowledge receipt of their comments actuators. The applicability and proposed AD are intended to prevent submitted in response to this notice paragraph (e) of the supplemental improper functioning of these actuators, must submit a self-addressed, stamped NPRM have been revised to reference which could result in a fuel imbalance postcard on which the following the later version of the service bulletin. due to the inability of the flight crew to statement is made: ‘‘Comments to Since this change expands the scope crossfeed fuel; improperly functioning Docket Number 94–NM–177–AD.’’ The of the originally proposed rule, the FAA actuators could also prevent the pilot postcard will be date stamped and has determined that it is necessary to from shutting off the fuel to the engine returned to the commenter. reopen the comment period to provide additional opportunity for public following an engine failure and/or fire. Availability of NPRMs DATES: Comments must be received by comment. May 1, 1995. Any person may obtain a copy of this As a result of recent communications NPRM by submitting a request to the ADDRESSES: Submit comments in with the Air Transport Association FAA,Transport Airplane Directorate, triplicate to the Federal Aviation (ATA) of America, the FAA has learned ANM–103, Attention: Rules Docket No. Administration (FAA), Transport that, in general, some operators may 94–NM–177–AD, 1601 Lind Avenue, Airplane Directorate, ANM–103, misunderstand the legal effect of AD’s SW., Renton, Washington 98055–4056. Attention: Rules Docket No. 94–NM– on airplanes that are identified in the 177–AD, 1601 Lind Avenue, SW., Discussion applicability provision of the AD, but Renton, Washington 98055–4056. that have been altered or repaired in the A proposal to amend part 39 of the area addressed by the AD. The FAA Comments may be inspected at this Federal Aviation Regulations (14 CFR location between 9:00 a.m. and 3:00 points out that all airplanes identified in part 39) to add an airworthiness the applicability provision of an AD are p.m., Monday through Friday, except directive (AD), applicable to certain legally subject to the AD. If an airplane Federal holidays. Boeing Model 727 and Model 737 series has been altered or repaired in the The service information referenced in airplanes, was published as a notice of the proposed rule may be obtained from affected area in such a way as to affect proposed rulemaking (NPRM) in the compliance with the AD, the owner or Boeing Commercial Airplane Group, Federal Register on December 15, 1994 P.O. Box 3707, Seattle, Washington operator is required to obtain FAA (59 FR 64628). That NPRM would have approval for an alternative method of 98124–2207. This information may be required replacement of the actuator of examined at the FAA, Transport compliance with the AD, in accordance the engine fuel shutoff valve and the with the paragraph of each AD that Airplane Directorate, 1601 Lind fuel system crossfeed valve with a new provides for such approvals. A note has Avenue, SW., Renton, Washington. actuator. That NPRM was prompted by been included in this notice to clarify FOR FURTHER INFORMATION CONTACT: reports indicating that, during ground this long standing requirement. Stephen S. Bray, Aerospace Engineer, acceptance tests on Model 737 series There are approximately 4,137 Model Propulsion Branch, ANM–141S, FAA, airplanes, the actuator clutch on the 727 and Model 737 series airplanes of Transport Airplane Directorate, Seattle engine shutoff and crossfeed valves the affected design in the worldwide Aircraft Certification Office, 1601 Lind slipped at cold temperatures when the fleet. The FAA estimates that 2,190 Avenue, SW., Renton, Washington engine shutoff valve was commanded to airplanes of U.S. registry would be 98055–4056; telephone (206) 227–2681; either the ‘‘close’’ or ‘‘open’’ position. affected by this proposed AD, that it fax (206) 227–1181. Improper functioning of these actuators, would take approximately 3 work hours SUPPLEMENTARY INFORMATION: if not corrected, could result in a fuel per airplane to accomplish the proposed imbalance due to the inability of the actions, and that the average labor rate Comments Invited flightcrew to crossfeed fuel, or could is $60 per work hour. Required parts Interested persons are invited to prevent the pilot from shutting off the would be supplied by J.C. Carter participate in the making of the fuel to the engine following an engine Company at no cost to the operators. proposed rule by submitting such failure and/or fire. Based on these figures, the total cost written data, views, or arguments as Since the issuance of that NPRM, the impact of the proposed AD on U.S. they may desire. Communications shall FAA has received a report indicating operators is estimated to be $394,200, or identify the Rules Docket number and that additional fuel valve actuators $180 per airplane. be submitted in triplicate to the address (Model EM487–2, serial numbers 0001 The total cost impact figure discussed specified above. All communications through 1443 inclusive) installed on above is based on assumptions that no received on or before the closing date certain Model 727 and Model 737 series operator has yet accomplished any of for comments, specified above, will be airplanes are also subject to the same the proposed requirements of this AD considered before taking action on the failure. The FAA has determined that action, and that no operator would proposed rule. The proposals contained these additional actuators are subject to accomplish those actions in the future if in this notice may be changed in light the addressed unsafe condition. this AD were not adopted. of the comments received. The FAA has reviewed and approved The regulations proposed herein Comments are specifically invited on a later version of J. C. Carter Company would not have substantial direct effects the overall regulatory, economic, Service Bulletin 61163–28–08, dated on the States, on the relationship environmental, and energy aspects of December 2, 1994. J. C. Carter Company between the national government and the proposed rule. All comments Service Bulletin 61163–28–08, dated the States, or on the distribution of submitted will be available, both before September 1, 1994, was cited in the power and responsibilities among the and after the closing date for comments, NPRM as the appropriate source of various levels of government. Therefore, in the Rules Docket for examination by service information. The replacement in accordance with Executive Order interested persons. A report procedures described in the later 12612, it is determined that this 16390 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules proposal would not have sufficient unsafe condition addressed by this AD. In no a one-time post-installation inspection federalism implications to warrant the case does the presence of any modification, to detect corrosion or deterioration of preparation of a Federalism Assessment. alteration, or repair remove any airplane from the PSU connectors, and correction of For the reasons discussed above, I the applicability of this AD. discrepancies, and application of certify that this proposed regulation (1) Compliance: Required as indicated, unless sealant. This proposal is prompted by is not a ‘‘significant regulatory action’’ accomplished previously. reports that ‘‘No Smoking’’ and ‘‘Fasten To prevent improper functioning of certain under Executive Order 12866; (2) is not actuators, which could result in a fuel Seat Belt’’ signs installed in certain a ‘‘significant rule’’ under the DOT imbalance due to the inability of the overhead PSU’s are not readable from Regulatory Policies and Procedures (44 flightcrew to crossfeed fuel, or which could passengers’ and flight attendants’ seats. FR 11034, February 26, 1979); and (3) if prevent the pilot from shutting off the fuel to This proposal is also prompted by promulgated, will not have a significant the engine following an engine failure and/ reports of smoke in the passenger cabin economic impact, positive or negative, or fire, accomplish the following: caused by overheating of the PSU on a substantial number of small entities (a) Within 24 months after the effective connectors. The actions specified by the under the criteria of the Regulatory date of this AD, replace the actuator having proposed AD are intended to ensure that part number (P/N) 40574–2 (Model EM487– warning signs are readable to passengers Flexibility Act. A copy of the draft 2, serial numbers 0001 through 1443 regulatory evaluation prepared for this inclusive; and Model EM487–3, serial and flight attendants, and to eliminate a action is contained in the Rules Docket. numbers 0001 through 2711 inclusive), on potential fire hazard. A copy of it may be obtained by the fuel system crossfeed valve and the DATES: Comments must be received by contacting the Rules Docket at the engine shutoff valves with a new actuator May 8, 1995. location provided under the caption having P/N 40574–4, in accordance with the ADDRESSES: Submit comments in ADDRESSES. Accomplishment Instructions of J.C. Carter triplicate to the Federal Aviation Company Service Bulletin 61163–28–08, List of Subjects in 14 CFR Part 39 dated December 2, 1994. Administration (FAA), Transport (b) An alternative method of compliance or Airplane Directorate, ANM–103, Air transportation, Aircraft, Aviation adjustment of the compliance time that Attention: Rules Docket No. 94–NM– safety, Safety. provides an acceptable level of safety may be 116–AD, 1601 Lind Avenue, SW., The Proposed Amendment used if approved by the Manager, Seattle Renton, Washington 98055–4056. Aircraft Certification Office (ACO), FAA, Comments may be inspected at this Accordingly, pursuant to the Transport Airplane Directorate. Operators location between 9:00 a.m. and 3:00 authority delegated to me by the shall submit their requests through an p.m., Monday through Friday, except appropriate FAA Principal Maintenance Administrator, the Federal Aviation Federal holidays. Administration proposes to amend part Inspector, who may add comments and then send it to the Manager, Seattle ACO. The service information referenced in 39 of the Federal Aviation Regulations the proposed rule may be obtained from (14 CFR part 39) as follows: Note 2: Information concerning the existence of approved alternative methods of Fokker Aircraft USA, Inc., 1199 North PART 39ÐAIRWORTHINESS compliance with this AD, if any, may be Fairfax Street, Alexandria, Virginia DIRECTIVES obtained from the Seattle ACO. 22314. This information may be (c) Special flight permits may be issued in examined at the FAA, Transport 1. The authority citation for part 39 accordance with sections 21.197 and 21.199 Airplane Directorate, 1601 Lind continues to read as follows: of the Federal Aviation Regulations (14 CFR Avenue, SW., Renton, Washington. 21.197 and 21.199) to operate the airplane to Authority: 49 U.S.C. App. 1354(a), 1421 FOR FURTHER INFORMATION CONTACT: a location where the requirements of this AD and 1423; 49 U.S.C. 106(g); and 14 CFR Mark Quam, Aerospace Engineer, can be accomplished. 11.89. Standardization Branch, ANM–113, Issued in Renton, Washington, on March FAA, Transport Airplane Directorate, § 39.13 [Amended] 24, 1995. 1601 Lind Avenue, SW., Renton, 2. Section 39.13 is amended by Darrell M. Pederson, Washington 98055–4056; telephone adding the following new airworthiness Acting Manager, Transport Airplane (206) 227–2145; fax (206) 227–1320. directive: Directorate, Aircraft Certification Service. SUPPLEMENTARY INFORMATION: Boeing: Docket 94–NM–177–AD. [FR Doc. 95–7779 Filed 3–29–95; 8:45 am] Applicability: Model 727 and Model 737 BILLING CODE 4910±13±U Comments Invited series airplanes; equipped with J.C. Carter Interested persons are invited to Company fuel valve actuators, as listed in J.C. 14 CFR Part 39 participate in the making of the Carter Company Service Bulletin 61163–28– proposed rule by submitting such 08, dated December 2, 1994, certificated in [Docket No. 94±NM±116±AD] any category. written data, views, or arguments as they may desire. Communications shall Note 1: This AD applies to each airplane Airworthiness Directives; Fokker identify the Rules Docket number and identified in the preceding applicability Model F28 Mk 0100 Series Airplanes provision, regardless of whether it has been be submitted in triplicate to the address modified, altered, or repaired in the area AGENCY: Federal Aviation specified above. All communications subject to the requirements of this AD. For Administration, DOT. received on or before the closing date airplanes that have been modified, altered, or ACTION: Notice of proposed rulemaking for comments, specified above, will be repaired so that the performance of the (NPRM). considered before taking action on the requirements of this AD is affected, the proposed rule. The proposals contained owner/operator must use the authority SUMMARY: This document proposes the in this notice may be changed in light provided in paragraph (b) to request approval adoption of a new airworthiness of the comments received. from the FAA. This approval may address directive (AD) that is applicable to Comments are specifically invited on either no action, if the current configuration eliminates the unsafe condition; or different certain Fokker Model F28 Mk 0100 the overall regulatory, economic, actions necessary to address the unsafe series airplanes. This proposal would environmental, and energy aspects of condition described in this AD. Such a require the installation of modified the proposed rule. All comments request should include an assessment of the Passenger Service Unit (PSU) panel submitted will be available, both before effect of the changed configuration on the lenses. This proposal would also require and after the closing date for comments, Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16391 in the Rules Docket for examination by (alternating) current present, the lenses. This action would be required to interested persons. A report temperature inside the connector can be accomplished in accordance with the summarizing each FAA-public contact rise subsequently and cause the Fokker Service Bulletin SBF100–25– concerned with the substance of this connector to melt. This condition, if not 061, described previously. proposal will be filed in the Rules corrected, can result in failure of the Additionally, this proposed AD Docket. warning signs at the PSU to illuminate would require a one-time post- Commenters wishing the FAA to and could pose a fire hazard. installation inspection to detect acknowledge receipt of their comments Fokker has issued Service Bulletin corrosion or deterioration of the PSU submitted in response to this notice SBF100–25–061, dated March 8, 1994 connectors, correction of discrepancies must submit a self-addressed, stamped (as corrected by Fokker Service Bulletin identified, and application of sealant. postcard on which the following Change Notification SBF100–25–061/02, These actions would be required to be statement is made: ‘‘Comments to dated June 20, 1994), which describes accomplished in accordance with Docket Number 94–NM–116–AD.’’ The procedures for installing modified PSU Fokker Service Bulletin SB100–25–068. postcard will be date stamped and panel lenses. (This Fokker service The proposed AD would be returned to the commenter. bulletin refers to Grimes Aerospace applicable only to Model F28 Mk 0100 Service Bulletins 10–1178–33–0036 and series airplanes having serial numbers Availability of NPRMs 10–1178–33–0039, Revision 1, dated 11244 through 11437, inclusive. Any person may obtain a copy of this October 31, 1993, for additional Beginning at serial number 11438, the NPRM by submitting a request to the installation instructions.) Certain of the modified PSU panel lenses were FAA, Transport Airplane Directorate, modified lenses are configured so that installed during production. ANM–103, Attention: Rules Docket No. the readability of the warning signs from As a result of recent communications 94–NM–116–AD, 1601 Lind Avenue, the passengers’ seats is improved. Other with the Air Transport Association SW., Renton, Washington 98055–4056. modified lenses incorporate a tilted (ATA) of America, the FAA has learned that, in general, some operators may Discussion legend (prisma lens) that makes readability possible from the aft cabin misunderstand the legal effect of AD’s The Rijksluchtvaartdienst (RLD), flight attendants’ seats. The RLD on airplanes that are identified in the which is the airworthiness authority for classified this service bulletin as applicability provision of the AD, but the Netherlands, recently notified the mandatory and issued Netherlands that have been altered or repaired in the FAA that an unsafe condition may exist airworthiness directive BLA 94–078(A), area addressed by the AD. The FAA on certain Fokker Model F28 Mk 0100 dated May 11, 1994, in order to assure points out that all airplanes identified in series airplanes. The RLD advises that the continued airworthiness of these the applicability provision of an AD are the ‘‘No Smoking’’ and ‘‘Fasten Seat airplanes in the Netherlands. legally subject to the AD. If an airplane Belt’’ signs installed in certain overhead Fokker also has issued Service has been altered or repaired in the Passenger Service Units (PSU) on these Bulletin SB100–25–068, dated March affected area in such a way as to affect airplanes may not be readable to each 31, 1994, which describes procedures compliance with the AD, the owner or seated passenger under all probable for conducting a one-time inspection to operator is required to obtain FAA conditions of cabin illumination. detect corrosion or deterioration of the approval for an alternative method of Additionally, these ‘‘No Smoking’’ or PSU connectors, correction of compliance with the AD, in accordance ‘‘Fasten Seat Belt’’ signs are not visible discrepancies identified, and with the paragraph of each AD that at all from the flight attendants’ seats in application of sealant. Fokker provides for such approvals. A note has the aft cabin. The ability to clearly see recommends that this inspection be been included in this notice to clarify these signs under all conditions of performed after the modified PSU panel this requirement. illumination in the cabin is necessary in lenses are installed in accordance with The FAA estimates that 83 airplanes order to ensure that passengers and Service Bulletin SBF100–25–061. The of U.S. registry would be affected by this flight attendants are notified when RLD has classified this service bulletin proposed AD. smoking is not permitted on an aircraft, as ‘‘Recommended.’’ The proposed installation of the and when seat belts must be fastened. If This airplane model is manufactured modified PSU’s would take the ‘‘No Smoking’’ signs are not in the Netherlands and is type approximately 2 work hours per readable or visible, passengers and flight certificated for operation in the United airplane to accomplish, at an average attendants may not be aware of States under the provisions of section labor rate of $60 per work hour. situations when smoking on the 21.29 of the Federal Aviation Required parts would cost airplane could present a fire hazard. If Regulations (14 CFR 21.29) and the approximately $248 per airplane. Based the ‘‘Fasten Seat Belts’’ signs are not applicable bilateral airworthiness on these figures, the total cost impact of readable or visible, passengers and flight agreement. Pursuant to this bilateral the proposed installation action on U.S. attendants may not be aware of airworthiness agreement, the RLD has operators is estimated to be $30,544, or situations when it is necessary that they kept the FAA informed of the situation $368 per airplane. be properly restrained in their seats to described above. The FAA has The proposed one-time inspection of prevent injury during turbulent or other examined the findings of the RLD, the PSU connectors would take flight conditions. reviewed all available information, and approximately 5 work hours per Additionally, the RLD advises that determined that AD action is necessary airplane to accomplish, at an average there have been two reports of smoke in for products of this type design that are labor rate of $60 per work hour. Based the passenger aft compartment coming certificated for operation in the United on these figures, the total cost impact of from a PSU. Investigation revealed that, States. the proposed inspection action on U.S. in each case, the cause of the smoke was Since an unsafe condition has been operators is estimated to be $24,900, or water ingress (condensation from the air identified that is likely to exist or $300 per airplane. duct) in the electrical connectors of the develop on other airplanes of the same Based on the figures discussed above, PSU. Water ingression in PSU type design registered in the United the total cost impact of the proposed AD connectors can result in corrosion of the States, the proposed AD would require is estimated to be $55,444, or $668 per contacts. Because there is a 115V the installation of modified PSU panel airplane. This total cost impact figure is 16392 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules based on assumptions that no operator Note 1: This AD applies to each airplane Issued in Renton, Washington, on March has yet accomplished any of the identified in the preceding applicability 24, 1995. proposed requirements of this AD provision, regardless of whether it has been Darrell M. Pederson, action, and that no operator would modified, altered, or repaired in the area Acting Manager, Transport Airplane accomplish those actions in the future if subject to the requirements of this AD. For Directorate, Aircraft Certification Service. this AD were not adopted. airplanes that have been modified, altered, or [FR Doc. 95–7780 Filed 3–29–95; 8:45 am] repaired so that the performance of the The regulations proposed herein BILLING CODE 4910±13±U would not have substantial direct effects requirements of this AD is affected, the on the States, on the relationship owner/operator must use the authority between the national government and provided in paragraph (d) to request approval 14 CFR Part 39 the States, or on the distribution of from the FAA. This approval may address [Docket No. 95±NM±06±AD] power and responsibilities among the either no action, if the current configuration eliminates the unsafe condition; or different various levels of government. Therefore, actions necessary to address the unsafe Airworthiness Directives; Boeing in accordance with Executive Order condition described in this AD. Such a Model 747 SP, SR, ±100, ±200, and 12612, it is determined that this request should include an assessment of the ±300 Series Airplanes Equipped With proposal would not have sufficient effect of the changed configuration on the Pratt & Whitney Model JT9D Series federalism implications to warrant the unsafe condition addressed by this AD. In no Engines (Excluding Model JT9D±70 preparation of a Federalism Assessment. case does the presence of any modification, Engines) For the reasons discussed above, I alteration, or repair remove any airplane from certify that this proposed regulation (1) the applicability of this AD. AGENCY: Federal Aviation is not a ‘‘significant regulatory action’’ Compliance: Required as indicated, unless Administration, DOT. under Executive Order 12866; (2) is not accomplished previously. ACTION: Notice of proposed rulemaking a ‘‘significant rule’’ under the DOT To ensure that warning signs are readable (NPRM). Regulatory Policies and Procedures (44 to passengers and flight attendants, and to FR 11034, February 26, 1979); and (3) if eliminate a potential fire hazard, accomplish SUMMARY: This document proposes the promulgated, will not have a significant the following: adoption of a new airworthiness economic impact, positive or negative, (a) Within 9 months after the effective date directive (AD) that is applicable to on a substantial number of small entities of this AD, install modified Passenger Service certain Boeing Model 747 SP, SR, –100, under the criteria of the Regulatory Unit (PSU) panel lenses in accordance with –200, and –300 series airplanes. This Flexibility Act. A copy of the draft Fokker Service Bulletin SBF100–25–061, proposal would require repetitive regulatory evaluation prepared for this dated March 8, 1994 (as corrected by Fokker operational tests of the reversible action is contained in the Rules Docket. Service Bulletin Change Notification gearbox pneumatic drive unit (PDU) or A copy of it may be obtained by SBF100–25–061/02, dated June 20, 1994). the reversing air motor PDU to ensure contacting the Rules Docket at the (b) Prior to further flight after that the unit can restrain the thrust location provided under the caption accomplishing the installation required by reverser sleeve, and correction of any ADDRESSES. paragraph (a) of this AD, perform a one-time discrepancy found. This proposal is post-installation inspection to detect prompted by the results of an List of Subjects in 14 CFR Part 39 corrosion and/or deterioration of the PSU investigation, which revealed that, in Air transportation, Aircraft, Aviation connector, in accordance with Fokker Service the event of thrust reverser deployment Bulletin SBF100–25–068, dated March 31, safety, Safety. during high-speed climb or during 1994. Prior to further flight, correct any The Proposed Amendment discrepancies detected and apply sealant in cruise, these airplanes could experience accordance with the service bulletin. control problems. The actions specified Accordingly, pursuant to the by the proposed AD are intended to authority delegated to me by the (c) As of the effective date of this AD, no person shall install on any airplane a Grimes ensure the integrity of the fail safe Administrator, the Federal Aviation features of the thrust reverser system by Administration proposes to amend part Aerospace Passenger Service Unit having part number (P/N) 10–1178–( ) through P/N preventing possible failure modes in the 39 of the Federal Aviation Regulations thrust reverser control system that can (14 CFR part 39) as follows: 10–1571–( ), inclusive. (d) An alternative method of compliance or result in inadvertent deployment of a PART 39ÐAIRWORTHINESS adjustment of the compliance time that thrust reverser during flight. DIRECTIVES provides an acceptable level of safety may be DATES: Comments must be received by used if approved by the Manager, May 24, 1995. 1. The authority citation for part 39 Standardization Branch, ANM–113, FAA, ADDRESSES: Submit comments in continues to read as follows: Transport Aircraft Directorate. Operators triplicate to the Federal Aviation shall submit their requests through an Authority: 49 U.S.C. App. 1354(a), 1421 Administration (FAA), Transport appropriate FAA Principal Maintenance and 1423; 49 U.S.C. 106(g); and 14 CFR Airplane Directorate, ANM–103, 11.89. Inspector, who may add comments and then send it to the Manager, Standardization Attention: Rules Docket No. 95–NM– § 39.13 [Amended] Branch, ANM–113. 06–AD, 1601 Lind Avenue, SW., Renton, Washington 98055–4056. 2. Section 39.13 is amended by Note 2: Information concerning the Comments may be inspected at this adding the following new airworthiness existence of approved alternative methods of directive: compliance with this AD, if any, may be location between 9:00 a.m. and 3:00 obtained from the Standardization Branch, p.m., Monday through Friday, except Fokker: Docket 94–NM–116–AD. Federal holidays. Applicability: Model F28 Mk 0100 series ANM–113. (e) Special flight permits may be issued in The service information referenced in airplanes having serial numbers 11244 the proposed rule may be obtained from through 11437, inclusive; and equipped with accordance with sections 21.197 and 21.199 Grimes Aerospace Passenger Service Units of the Federal Aviation Regulations (14 CFR Boeing Commercial Airplane Group, having part number (P/N) 10–1178–( ) 21.197 and 21.199) to operate the airplane to P.O. Box 3707, Seattle, Washington through P/N 10–1571–( ), inclusive; a location where the requirements of this AD 98124–2207. This information may be certificated in any category. can be accomplished. examined at the FAA, Transport Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16393 Airplane Directorate, 1601 Lind flight could result in reduced In light of that information, the FAA Avenue, SW., Renton, Washington. controllability of the airplane. determined that certain inspections and FOR FURTHER INFORMATION CONTACT: G. The FAA and the aviation industry functional tests of the thrust reverser Michael Collins, Aerospace Engineer, are conducting an in-depth investigation control and indication system on all Propulsion Branch, ANM–140S, FAA, of the thrust reverser systems installed Model 747 series airplanes, similar to Transport Airplane Directorate, Seattle on various types of large transport those required previously for Model 757 Aircraft Certification Office, 1601 Lind airplanes. In particular, this and 767 series airplanes, are necessary Avenue, SW., Renton, Washington investigation has focused on airplane as precautionary actions to provide an 98055–4056; telephone (206) 227–2689; controllability in the event of an in- acceptable level of safety for Model 747 fax (206) 227–1181. flight deployment of a thrust reverser, series airplanes. Subsequently, on July and thrust reverser reliability in general. 13, 1994, the FAA issued AD 94–15–05, SUPPLEMENTARY INFORMATION: Based on the data gathered from this amendment 39–8976 (59 FR 37655, July Comments Invited ongoing investigation, the FAA issued 25, 1994), to require inspections and functional tests of the thrust reverser Interested persons are invited to several airworthiness directives (AD) to require periodic inspections and tests of control and indication system on all participate in the making of the Model 747–400 series airplanes. proposed rule by submitting such the thrust reverser systems on certain Boeing Model 757 and 767 series In the preamble to the notice of AD written data, views, or arguments as 94–15–05, the FAA indicated that it was they may desire. Communications shall airplanes [for example, reference AD 91–20–09, amendment 39–8043 (56 FR considering similar rulemaking action identify the Rules Docket number and for other Model 747 series airplanes. be submitted in triplicate to the address 46725, September 16, 1991) for certain Model 757 series airplanes; and AD 92– The FAA now has determined that such specified above. All communications rulemaking action is indeed necessary, received on or before the closing date 24–03, amendment 39–8408 (57 FR 53258, November 9, 1992) for certain and this proposed AD follows from that for comments, specified above, will be determination. The FAA has determined considered before taking action on the Model 767 series airplanes]. In addition, the FAA has issued or proposed several that inspections and functional tests of proposed rule. The proposals contained the thrust reverser control and in this notice may be changed in light AD’s to require an additional locking device on thrust reversers that are indication system, similar to those of the comments received. currently required by AD 94–15–05 for Comments are specifically invited on installed on Model 737–300/–400/–500, 757, and 767 series airplanes [for Model 747–400 series airplanes, are the overall regulatory, economic, necessary for Model 747 SP, SR, -100, environmental, and energy aspects of example, reference AD 94–14–02, amendment 39–8954 (59 FR 33646, June -200, and -300 series airplanes in order the proposed rule. All comments to reduce the exposure of these 30, 1994) for certain Model 757 series submitted will be available, both before airplanes to potential undetected single airplanes; and AD 94–16–03, and after the closing date for comments, failures in the thrust reverser control amendment 39–8993 (59 FR 41229, in the Rules Docket for examination by system. The presence of an undetected August 11, 1994) for certain Model 767 interested persons. A report failure in the thrust reverser control series airplanes]. These actions were summarizing each FAA-public contact system, in some cases, can increase the taken to enhance the level of reliability concerned with the substance of this likelihood of an uncommanded thrust on airplane models that were proposal will be filed in the Rules reverser deployment in the event of an determined to have unacceptable flight Docket. additional thrust reverser control system characteristics following an in-flight Commenters wishing the FAA to failure. acknowledge receipt of their comments deployment of a thrust reverser. The FAA has reviewed and approved submitted in response to this notice Until now, the investigation of thrust Boeing Alert Service Bulletin 747– must submit a self-addressed, stamped reverser system reliability on Boeing 78A2131, dated September 15, 1994, postcard on which the following Model 747 series airplanes has not been which describes procedures for statement is made: ‘‘Comments to given as high a priority as the other repetitive operational tests of the Docket Number 95–NM–06–AD.’’ The Boeing models because Model 747 reversible gearbox pneumatic drive unit postcard will be date stamped and series airplanes have never experienced (PDU) or the reversing air motor PDU to returned to the commenter. control problems as a result of an in- ensure that the unit can restrain the flight thrust reverser deployment. Based thrust reverser sleeve, and correction of Availability of NPRMs on this long safety record and the any discrepancy found. The alert service Any person may obtain a copy of this available evidence up to this time, it has bulletin recommends that these initial NPRM by submitting a request to the been accepted generally that all Model tests be accomplished no later than FAA, Transport Airplane Directorate, 747 series airplanes would be shown to 1,300 flight hours after release of the ANM–103, Attention: Rules Docket No. be controllable throughout the flight alert service bulletin. The alert service 95–NM–06–AD, 1601 Lind Avenue, envelope following an in-flight thrust bulletin also recommends a repetitive SW., Renton, Washington 98055–4056. reverser deployment. test interval of 2,000 flight hours. Boeing has responded to an FAA Since an unsafe condition has been Discussion request for further investigation to identified that is likely to exist or In May 1991, a Boeing Model 767 determine the controllability of Model develop on other products of this same series airplane was involved in an 747 series airplanes following an in- type design, the proposed AD would accident in which a thrust reverser flight thrust reverser deployment. The require repetitive operational tests of the deployed inadvertently during flight. investigation results indicate that Model reversible gearbox pneumatic drive unit While the investigation of the accident 747 SP, SR, –100, –200, –300, and -400 (PDU) or the reversing air motor PDU to has not revealed the cause of that series airplanes could experience ensure that the unit can restrain the deployment, it has identified a number certain control problems in the event of thrust reverser sleeve, and correction of of possible failure modes in the thrust a thrust reverser deployment occurring any discrepancy found during the test. reverser control system. Inadvertent during high-speed climb or during The actions would be required to be deployment of a thrust reverser during cruise. accomplished in accordance with the 16394 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules alert service bulletin described affected by this proposed AD, that it § 39.13 [Amended] previously. would take approximately 16 work 2. Section 39.13 is amended by In developing appropriate compliance hours per airplane to accomplish the adding the following new airworthiness times for the initial test contained in proposed actions, and that the average directive: this proposed AD, the FAA considered labor rate is $60 per work hour. Based Boeing: Docket 95–NM–06–AD. the safety implications and normal on these figures, the total cost impact of Applicability: Model 747 SP, SR, –100, maintenance schedules for timely the proposed AD on U.S. operators is –200, and –300 series airplanes equipped accomplishment of the proposed estimated to be $166,080, or $960 per with Pratt & Whitney Model JT9D series actions. In consideration of these items, airplane. engines (excluding Model JT9D–70 engines), the FAA determined that 90 days (for The total cost impact figure discussed certificated in any category. the initial test of the PDU) represents above is based on assumptions that no Note 1: This AD applies to each airplane the maximum interval of time allowable operator has yet accomplished any of identified in the preceding applicability wherein that test can reasonably be provision, regardless of whether it has been the proposed requirements of this AD accomplished and an acceptable level of modified, altered, or repaired in the area action, and that no operator would safety can be maintained. Further, the subject to the requirements of this AD. For accomplish those actions in the future if FAA has determined that the proposed airplanes that have been modified, altered, or this AD were not adopted. repetitive interval of 2,000 flight hours repaired so that the performance of the The regulations proposed herein requirements of this AD is affected, the is appropriate, based on the service owner/operator must use the authority history of similar components and on an would not have substantial direct effects provided in paragraph (d) to request approval analysis of the system design to predict on the States, on the relationship from the FAA. This approval may address the reliability of the system during the between the national government and either no action, if the current configuration service life of the aircraft. the States, or on the distribution of eliminates the unsafe condition; or different The thrust reverser control and power and responsibilities among the actions necessary to address the unsafe indication system on Model 747–400 various levels of government. Therefore, condition described in this AD. Such a series airplanes is similar to the system in accordance with Executive Order request should include an assessment of the installed on the airplanes addressed in 12612, it is determined that this effect of the changed configuration on the this proposed AD. The compliance time unsafe condition addressed by this AD. In no proposal would not have sufficient case does the presence of any modification, for the initial test proposed in this AD federalism implications to warrant the alteration, or repair remove any airplane from corresponds to that specified in AD 94– preparation of a Federalism Assessment. the applicability of this AD. 15–05 for Model 747–400 series For the reasons discussed above, I Compliance: Required as indicated, unless airplanes. The repetitive test interval certify that this proposed regulation (1) accomplished previously. specified in this proposed AD should is not a ‘‘significant regulatory action’’ To ensure the integrity of the fail safe allow operators to perform the test under Executive Order 12866; (2) is not features of the thrust reverser system, during regularly scheduled accomplish the following: a ‘‘significant rule’’ under the DOT (a) Within 90 days after the effective date maintenance. Regulatory Policies and Procedures (44 This proposed AD also would require of this AD, perform an operational test of the FR 11034, February 26, 1979); and (3) if that operators submit a report of initial reversible gearbox pneumatic drive unit promulgated, will not have a significant test results to the FAA. (PDU) or the reversing air motor PDU to This AD is considered to be interim economic impact, positive or negative, ensure that the unit can restrain the thrust reverser sleeve, in accordance with Boeing action until final action is identified, at on a substantial number of small entities under the criteria of the Regulatory Alert Service Bulletin 747–78A2131, dated which time the FAA may consider September 15, 1994. Repeat the test thereafter additional rulemaking. Flexibility Act. A copy of the draft regulatory evaluation prepared for this at intervals not to exceed 2,000 flight hours. As a result of recent communications (b) If any of the tests required by this AD with the Air Transport Association action is contained in the Rules Docket. cannot be successfully performed, or if any (ATA) of America, the FAA has learned A copy of it may be obtained by discrepancy is found during those tests, that, in general, some operators may contacting the Rules Docket at the accomplish either paragraph (b)(1) or (b)(2) of misunderstand the legal effect of AD’s location provided under the caption this AD. on airplanes that are identified in the ADDRESSES. (1) Prior to further flight, correct the discrepancy found, in accordance with applicability provision of the AD, but List of Subjects in 14 CFR Part 39 Boeing Alert Service Bulletin 747–78A2131, that have been altered or repaired in the dated September 15, 1994. Or area addressed by the AD. The FAA Air transportation, Aircraft, Aviation (2) The airplane may be operated in points out that all airplanes identified in safety, Safety. accordance with the provisions and limitations specified in an operator’s FAA- the applicability provision of an AD are The Proposed Amendment legally subject to the AD. If an airplane approved Minimum Equipment List (MEL), has been altered or repaired in the Accordingly, pursuant to the provided that no more than one thrust affected area in such a way as to affect reverser on the airplane is inoperative. authority delegated to me by the (c) Within 30 days after performing each compliance with the AD, the owner or Administrator, the Federal Aviation initial test required by this AD, submit a operator is required to obtain FAA Administration proposes to amend part report of the test results, both positive and approval for an alternative method of 39 of the Federal Aviation Regulations negative, to the FAA, Seattle Aircraft compliance with the AD, in accordance (14 CFR part 39) as follows: Certification Office (ACO), ANM–100S, 1601 with the paragraph of each AD that Lind Avenue, SW., Renton, Washington provides for such approvals. A note has PART 39ÐAIRWORTHINESS 98055–4056; fax (206) 227–1181. Information been included in this notice to clarify DIRECTIVES collection requirements contained in this this long-standing requirement. regulation have been approved by the Office There are approximately 456 Model 1. The authority citation for part 39 of Management and Budget (OMB) under the continues to read as follows: provisions of the Paperwork Reduction Act of 747 SP, SR, –100, –200, and –300 series 1980 (44 U.S.C. 3501 et seq.) and have been airplanes of the affected design in the Authority: 49 U.S.C. App. 1354(a), 1421 assigned OMB Control Number 2120–0056. worldwide fleet. The FAA estimates that and 1423; 49 U.S.C. 106(g); and 14 CFR (d) An alternative method of compliance or 173 airplanes of U.S. registry would be 11.89. adjustment of the compliance time that Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16395 provides an acceptable level of safety may be Germany. This information also may be control. Under the current used if approved by the Manager, Seattle examined at the Rules Docket at the configuration, the rudder control cables Aircraft Certification Office (ACO), FAA, address above. from the right and left pedals meet at Transport Airplane Directorate. Operators the turnbuckle in the tailboom in a way shall submit their requests through an FOR FURTHER INFORMATION CONTACT: Mr. appropriate FAA Principal Maintenance Herman C. Belderok, Project Officer, that subjects the turnbuckle eye bolt to Inspector, who may add comments and then Gliders, Small Airplane Directorate, resistant forces (tensile and bending) send it to the Manager, Seattle ACO. Aircraft Certification Service, FAA, that could pull the bolt from the rudder Note 2: Information concerning the 1201 Walnut, suite 900, Kansas City, assembly. If not detected and corrected, existence of approved alternative methods of Missouri 64106; telephone (816) 426– rudder control cable turnbuckle eye bolt compliance with this AD, if any, may be 6932; facsimile (816) 426–2169. rupture could result in rudder control obtained from the Seattle ACO. cable system failure and subsequent loss (e) Special flight permits may be issued in SUPPLEMENTARY INFORMATION: of rudder control. accordance with sections 21.197 and 21.199 Comments Invited Stemme has issued Service Bulletin of the Federal Aviation Regulations (14 CFR (SB) A31–10–018, dated June 3, 1994, 21.197 and 21.199) to operate the airplane to Interested persons are invited to which specifies procedures for a location where the requirements of this AD participate in the making of the modifying the rudder control cable can be accomplished. proposed rule by submitting such system on these S10 gliders. Pages 1–3 Issued in Renton, Washington, on May 24, written data, views, or arguments as of this service bulletin are written in 1995. they may desire. Communications German and pages 4–6 are English Darrell M. Pederson, should identify the Rules Docket translations. The LBA classified this Acting Manager, Transport Airplane number and be submitted in triplicate to service bulletin as mandatory and Directorate, Aircraft Certification Service. the address specified above. All issued LBA AD 94–260, dated August [FR Doc. 95–7781 Filed 3–29–95; 8:45 am] communications received on or before 25, 1994, in order to assure the BILLING CODE 4910±13±U the closing date for comments, specified continued airworthiness of these gliders above, will be considered before taking in Germany. action on the proposed rule. The This glider model is manufactured in 14 CFR Part 39 proposals contained in this notice may Germany and is type certificated for be changed in light of the comments [Docket No. 94±CE±32±AD] operation in the United States under the received. provisions of section 21.29 of the Airworthiness Directives; Stemme S10 Comments are specifically invited on Federal Aviation Regulations (14 CFR Gliders the overall regulatory, economic, 21.29) and the applicable bilateral environmental, and energy aspects of airworthiness agreement. Pursuant to AGENCY: Federal Aviation the proposed rule. All comments this bilateral airworthiness agreement, Administration, DOT. submitted will be available, both before the LBA has kept the FAA informed of ACTION: Notice of proposed rulemaking and after the closing date for comments, the situation described above. The FAA (NPRM). in the Rules Docket for examination by has examined the findings of the LBA, interested persons. A report that reviewed all available information, and SUMMARY: This document proposes to summarizes each FAA-public contact determined that AD action is necessary adopt a new airworthiness directive concerned with the substance of this for products of this type design that are (AD) that would apply to certain proposal will be filed in the Rules certificated for operation in the United Stemme S10 gliders. The proposed Docket. States. action would require modifying the Commenters wishing the FAA to Since an unsafe condition has been rudder control cable system. Rupture of acknowledge receipt of their comments identified that is likely to exist or a turnbuckle eye bolt in the rudder submitted in response to this notice develop in other Stemme S10 gliders of control cable system on one of the must submit a self-addressed, stamped the same type design, the proposed AD affected gliders prompted the proposed postcard on which the following would require modifying the rudder action. The actions specified by the statement is made: ‘‘Comments to control cable system. The proposed proposed AD are intended to prevent Docket No. 94–CE–32–AD.’’ The action would be accomplished in rudder control cable system failure postcard will be date stamped and accordance with the instructions to caused by rupture of the turnbuckle eye returned to the commenter. Stemme SB A31–10–018 (pages 4–6), bolt, which, if not detected and dated June 3, 1994. corrected, could result in loss of rudder Availability of NPRMs The FAA estimates that 3 gliders in control. Any person may obtain a copy of this the U.S. registry would be affected by DATES: Comments must be received on NPRM by submitting a request to the the proposed AD, that it would take or before June 16, 1995. FAA, Central Region, Office of the approximately 4 workhours per glider to ADDRESSES: Submit comments in Assistant Chief Counsel, Attention: accomplish the proposed action, and triplicate to the Federal Aviation Rules Docket No. 94–CE–32–AD, Room that the average labor rate is Administration (FAA), Central Region, 1558, 601 E. 12th Street, Kansas City, approximately $60 an hour. Parts cost Office of the Assistant Chief Counsel, Missouri 64106. approximately $56 per glider. Based on Attention: Rules Docket No. 94–CE–32– these figures, the total cost impact of the Discussion AD, Room 1558, 601 E. 12th Street, proposed AD on U.S. operators is Kansas City, Missouri 64106. Comments The Luftfarht-Bundesant (LBA), estimated to be $888 ($296 per may be inspected at this location which is the airworthiness authority for airplane). This figure is based on the between 8 a.m. and 4 p.m., Monday Germany, recently notified the FAA that assumption that no affected owner/ through Friday, holidays excepted. an unsafe condition may exist on operator of the affected gliders has Service information that applies to the Stemme S10 gliders. The LBA reports incorporated the proposed modification. proposed AD may be obtained from that the rudder control cable turnbuckle The regulations proposed herein Stemme GmbH & Co. KG, Flugplatz eye bolt ruptured on one of the affected would not have substantial direct effects Gebaude 47, D–15344 Staussberg, gliders, which resulted in loss of rudder on the States, on the relationship 16396 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules between the national government and this AD. Such a request should include an (AD) that would apply to certain HOAC the States, or on the distribution of assessment of the effect of the changed AUSTRIA GmbH (HOAC) HK 36R power and responsibilities among the configuration on the unsafe condition ‘‘Super Dimona’’ gliders. The proposed addressed by this AD. In no case does the action would require inspecting the various levels of government. Therefore, presence of any modification, alteration, or in accordance with Executive Order repair remove any glider from the exhaust system for corrosion, replacing 12612, it is determined that this applicability of this AD. the exhaust system if corrosion is found, proposal would not have sufficient Compliance: Required upon the and installing a carbon monoxide federalism implications to warrant the accumulation of 150 hours time-in-service detector. Reports received by the preparation of a Federalism Assessment. (TIS) or within the next 20 hours TIS after Federal Aviation Administration (FAA) For the reasons discussed above, I the effective date of this AD, whichever of severe exhaust system corrosion on certify that this action (1) is not a occurs later, unless already accomplished. the affected gliders, including one of To prevent rudder control cable system excessive corrosion (rusting through), ‘‘significant regulatory action’’ under failure caused by rupture of the turnbuckle Executive Order 12866; (2) is not a eye bolt, which, if not detected and prompted the proposed action. The ‘‘significant rule’’ under DOT corrected, could result in loss of rudder actions specified by the proposed AD Regulatory Policies and Procedures (44 control, accomplish the following: are intended to prevent carbon FR 11034, February 26, 1979); and (3) if (a) Modify the rudder control cable system monoxide leakage caused by a corroded promulgated, will not have a significant in accordance with the instructions in exhaust system, which, if not detected economic impact, positive or negative, Stemme Service Bulletin A31–10–018 (pages and corrected, could lead to passenger on a substantial number of small entities 4–6), dated June 3, 1994. injuries. (b) Special flight permits may be issued in under the criteria of the Regulatory accordance with sections 21.197 and 21.199 DATES: Comments must be received on Flexibility Act. A copy of the draft of the Federal Aviation Regulations (14 CFR or before June 16, 1995. regulatory evaluation prepared for this 21.197 and 21.199) to operate the glider to a ADDRESSES: Submit comments in action has been placed in the Rules location where the requirements of this AD triplicate to the FAA, Central Region, Docket. A copy of it may be obtained by can be accomplished. Office of the Assistant Chief Counsel, contacting the Rules Docket at the (c) An alternative method of compliance or Attention: Rules Docket No. 94–CE–36– location provided under the caption adjustment of the compliance time that AD Room 1558, 601 E. 12th Street, provides an equivalent level of safety may be ADDRESSES. approved by the Manager, Small Airplane Kansas City, Missouri 64106. Comments List of Subjects in 14 CFR Part 39 Directorate, FAA, 1201 Walnut, suite 900, may be inspected at this location Kansas City, Missouri 64106. The request between 8 a.m. and 4 p.m., Monday Air transportation, Aircraft, Aviation should be forwarded through an appropriate through Friday, holidays excepted. safety, Safety. FAA Maintenance Inspector, who may add Service information that applies to the The Proposed Amendment comments and then send it to the Manager, proposed AD may be obtained from Small Airplane Directorate. HOAC AUSTRIA GmbH, N.A. Otto Accordingly, pursuant to the Note 2: Information concerning the Strasse 5, A–2700 Wiener Neustadt, authority delegated to me by the existence of approved alternative methods of Austria. This information also may be Administrator, the Federal Aviation compliance with this AD, if any, may be examined at the Rules Docket at the Administration proposes to amend part obtained from the Small Airplane address above. 39 of the Federal Aviation Regulations Directorate. FOR FURTHER INFORMATION CONTACT: (14 CFR part 39) as follows: (d) All persons affected by this directive Mr. may obtain copies of the document referred Herman C. Belderok, Project Officer, PART 39ÐAIRWORTHINESS to herein upon request to Stemme GmbH & Gliders, Small Airplane Directorate, DIRECTIVES Co. KG, Flugplatz Gebaude 47, D–15344 Aircraft Certification Service, FAA, Staussberg, Germany; or may examine this 1201 Walnut, suite 900, Kansas City, 1. The authority citation for part 39 document at the FAA, Central Region, Office Missouri 64106; telephone (816) 426– continues to read as follows: of the Assistant Chief Counsel, Room 1558, 6932; facsimile (816) 426–2169. Authority: 49 U.S.C. App. 1354(a), 1421 601 E. 12th Street, Kansas City, Missouri SUPPLEMENTARY INFORMATION: and 1423; 49 U.S.C. 106(g); and 14 CFR 64106. 11.89. Issued in Kansas City, Missouri, on March Comments Invited 24, 1995. § 39.13 [AMENDED] Dwight A. Young, Interested persons are invited to participate in the making of the 2. Section 39.13 is amended by Acting Manager, Small Airplane Directorate, adding a new AD to read as follows: Aircraft Certification Service. proposed rule by submitting such written data, views, or arguments as [FR Doc. 95–7787 Filed 3–29–95; 8:45 am] Stemme: Docket No. 94–CE–32–AD. they may desire. Communications Applicability: S10 gliders (serial numbers BILLING CODE 4910±13±U should identify the Rules Docket 10–03 through 10–58), certificated in any category. number and be submitted in triplicate to the address specified above. All Note 1: This AD applies to each glider 14 CFR Part 39 identified in the preceding applicability communications received on or before [Docket No. 94±CE±36±AD] provision, regardless of whether it has been the closing date for comments, specified modified, altered, or repaired in the area above, will be considered before taking subject to the requirements of this AD. For Airworthiness Directives; HOAC action on the proposed rule. The gliders that have been modified, altered, or AUSTRIA GmbH HK 36R ``Super proposals contained in this notice may repaired so that the performance of the Dimona'' Gliders be changed in light of the comments requirements of this AD is affected, the AGENCY: received. owner/operator must use the authority Federal Aviation Administration, DOT. Comments are specifically invited on provided in paragraph (c) of this AD to the overall regulatory, economic, request approval from the FAA. This ACTION: Notice of proposed rulemaking approval may address either no action, if the (NPRM). environmental, and energy aspects of current configuration eliminates the unsafe the proposed rule. All comments condition, or different actions necessary to SUMMARY: This document proposes to submitted will be available, both before address the unsafe condition described in adopt a new airworthiness directive and after the closing date for comments, Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16397 in the Rules Docket for examination by Dimona’’ gliders of the same type PART 39ÐAIRWORTHINESS interested persons. A report that design, the proposed AD would require DIRECTIVES summarizes each FAA-public contact inspecting the exhaust system for concerned with the substance of this corrosion, replacing the exhaust system 1. The authority citation for part 39 proposal will be filed in the Rules if corrosion is found, and installing a continues to read as follows: Docket. carbon monoxide detector. The Authority: 49 U.S.C. App. 1354(a), 1421 Commenters wishing the FAA to proposed action would be accomplished and 1423; 49 U.S.C. 106(g); and 14 CFR acknowledge receipt of their comments in accordance with the Measures section 11.89. submitted in response to this notice of HOAC SB 33, dated July 15, 1993. § 39.13 [Amended] must submit a self-addressed, stamped The FAA estimates that 4 gliders in postcard on which the following 2. Section 39.13 is amended by the U.S. registry would be affected by adding a new AD to read as follows: statement is made: ‘‘Comments to the proposed AD, that it would take Docket No. 94–CE–36–AD.’’ The HOAC AUSTRIA GmbH: Docket No. 94–CE– approximately 2 workhours per glider to 36–AD. postcard will be date stamped and accomplish the proposed action, and returned to the commenter. Applicability: HK 36R ‘‘Super Dimona’’ that the average labor rate is gliders (serial numbers 36.302 through Availability of NPRMs approximately $60 an hour. Parts cost 36.324), certificated in any category. Any person may obtain a copy of this approximately $25 per glider. Based on Note 1: This AD applies to each glider NPRM by submitting a request to the these figures, the total cost impact of the identified in the preceding applicability FAA, Central Region, Office of the proposed AD on U.S. operators is provision, regardless of whether it has been Assistant Chief Counsel, Attention: estimated to be $580 ($145 per glider). modified, altered, or repaired in the area Rules Docket No. 94–CE–36–AD, Room This figure is based on the assumption subject to the requirements of this AD. For that no affected owner/operator of the gliders that have been modified, altered, or 1558, 601 E. 12th Street, Kansas City, repaired so that the performance of the Missouri 64106. affected gliders has incorporated the proposed installation or accomplished requirements of this AD is affected, the Discussion owner/operator must use the authority the proposed inspection. provided in paragraph (d) of this AD to The Austro Control GmbH (ACG), The regulations proposed herein request approval from the FAA. This which is the airworthiness authority for would not have substantial direct effects approval may address either no action, if the Austria, recently notified the FAA that on the States, on the relationship current configuration eliminates the unsafe an unsafe condition may exist on certain between the national government and condition, or different actions necessary to HOAC HK 36R ‘‘Super Dimona’’ gliders. the States, or on the distribution of address the unsafe condition described in The ACG reports several incidents of power and responsibilities among the this AD. Such a request should include an severe exhaust system corrosion on the assessment of the effect of the changed various levels of government. Therefore, configuration on the unsafe condition affected gliders, including one of in accordance with Executive Order addressed by this AD. In no case does the excessive corrosion (rusting through). If 12612, it is determined that this presence of any modification, alteration, or not detected and corrected, excessive proposal would not have sufficient repair remove any glider from the corrosion could result in high carbon federalism implications to warrant the applicability of this AD. monoxide levels in the cockpit and preparation of a Federalism Assessment. Compliance: Required within the next 10 hours time-in- service after the effective date subsequent passenger injury. For the reasons discussed above, I HOAC has issued Service Bulletin of this AD, unless already accomplished. certify that this action (1) is not a (SB) 33, dated July 15, 1993, which To prevent carbon monoxide leakage ‘‘significant regulatory action’’ under specifies procedures for inspecting the caused by a corroded exhaust system, which, Executive Order 12866; (2) is not a exhaust system of these HK 36R ‘‘Super if not detected and corrected, could lead to ‘‘significant rule’’ under DOT passenger injuries, accomplish the following: Dimona’’ gliders for corrosion, replacing Regulatory Policies and Procedures (44 (a) Inspect the exhaust system for corrosion the exhaust systems, and installing a FR 11034, February 26, 1979); and (3) if in accordance with the Measures section of carbon monoxide detector. The ACG promulgated, will not have a significant HOAC Service Bulletin (SB) 33, dated July classified this service bulletin as economic impact, positive or negative, 15, 1993. If corrosion if found, prior to mandatory and issued ACG AD No. 74, further flight, replace the exhaust system in on a substantial number of small entities in order to assure the continued accordance with the Measurement section of under the criteria of the Regulatory airworthiness of these gliders in Austria. HOAC SB 33, dated July 15, 1993. This glider model is manufactured in Flexibility Act. A copy of the draft (b) Install a carbon monoxide detector in Austria and is type certificated for regulatory evaluation prepared for this accordance with the Measures section of HOAC SB 33, dated July 15, 1993. operation in the United States under the action has been placed in the Rules Docket. A copy of it may be obtained by (c) Special flight permits may be issued in provisions of section 21.29 of the accordance with sections 21.197 and 21.199 Federal Aviation Regulations (14 CFR contacting the Rules Docket at the location provided under the caption of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral 21.197 and 21.199) to operate the glider to a ADDRESSES. airworthiness agreement. Pursuant to location where the requirements of this AD this bilateral airworthiness agreement, List of Subjects in 14 CFR Part 39 can be accomplished. the ACG has kept the FAA informed of (d) An alternative method of compliance or the situation described above. The FAA Air transportation, Aircraft, Aviation adjustment of the compliance time that has examined the findings of the ACG, safety, Safety. provides an equivalent level of safety may be approved by the Manager, Small Airplane reviewed all available information, and The Proposed Amendment Directorate, FAA, 1201 Walnut, suite 900, determined that AD action is necessary Kansas City, Missouri 64106. The request for products of this type design that are Accordingly, pursuant to the should be forwarded through an appropriate certificated for operation in the United authority delegated to me by the FAA Maintenance Inspector, who may add States. Administrator, the Federal Aviation comments and then send it to the Manager, Since an unsafe condition has been Administration proposes to amend part Small Airplane Directorate. identified that is likely to exist or 39 of the Federal Aviation Regulations Note 2: Information concerning the develop in other HOAC HK 36R ‘‘Super (14 CFR part 39) as follows: existence of approved alternative methods of 16398 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules compliance with this AD, if any, may be Gliders, Small Airplane Directorate, Scheibe has issued Technical Note obtained from the Small Airplane Aircraft Certification Service, FAA, (TN) Number 336–2, dated March 10, Directorate. 1201 Walnut, suite 900, Kansas City, 1995, which specifies procedures for (e) All persons affected by this directive Missouri 64106; telephone (816) 426– adding armature (supportive covering) may obtain copies of the document referred 6932; facsimile (816) 426–2169. to both wings and modifying the root rib to herein upon request to HOAC AUSTRIA of the left wing. This TN also specifies GmbH, N.A. Otto Strasse 5, A- 2700 Wiener SUPPLEMENTARY INFORMATION: Neustadt, Austria; or may examine this changes and operating limitations to be document at the FAA, Central Region, Office Comments Invited incorporated into the flight manual. The of the Assistant Chief Counsel, Room 1558, Interested persons are invited to LBA classified this service bulletin as 601 E. 12th Street, Kansas City, Missouri participate in the making of the mandatory and issued LBA AD 89–73, 64106. proposed rule by submitting such dated May 10, 1989, in order to assure Issued in Kansas City, Missouri, on March written data, views, or arguments as the continued airworthiness of these 24, 1995. they may desire. Communications gliders in Germany. Dwight A. Young, should identify the Rules Docket This glider model is manufactured in Acting Manager, Small Airplane Directorate, number and be submitted in triplicate to Germany and is type certificated for Aircraft Certification Service. the address specified above. All operation in the United States under the [FR Doc. 95–7783 Filed 3–29–95; 8:45 am] communications received on or before provisions of section 21.29 of the BILLING CODE 4910±13±U the closing date for comments, specified Federal Aviation Regulations (14 CFR above, will be considered before taking 21.29) and the applicable bilateral action on the proposed rule. The airworthiness agreement. Pursuant to 14 CFR Part 39 proposals contained in this notice may this bilateral airworthiness agreement, the LBA has kept the FAA informed of [Docket No. 94±CE±35±AD] be changed in light of the comments received. the situation described above. The FAA Airworthiness Directives; Scheibe Comments are specifically invited on has examined the findings of the LBA, Flugzeugbau GmbH SF34 and SF34B the overall regulatory, economic, reviewed all available information, and Gliders environmental, and energy aspects of determined that AD action is necessary the proposed rule. All comments for products of this type design that are AGENCY: Federal Aviation submitted will be available, both before certificated for operation in the United Administration, DOT. and after the closing date for comments, States. ACTION: Notice of proposed rulemaking in the Rules Docket for examination by Since an unsafe condition has been (NPRM). interested persons. A report that identified that is likely to exist or summarizes each FAA-public contact develop in other Scheibe SF34 and SUMMARY: This document proposes to SF34B gliders of the same type design, adopt a new airworthiness directive concerned with the substance of this proposal will be filed in the Rules the proposed AD would require adding (AD) that would apply to certain armature (supportive covering) to both Scheibe Flugzeugbau GmbH (Scheibe) Docket. Commenters wishing the FAA to wings, modifying the root rib of the left SF34 and SF34B gliders. The proposed acknowledge receipt of their comments wing, and incorporating changes and action would require adding armature submitted in response to this notice operating limitations to the flight (supportive covering) to both wings, must submit a self-addressed, stamped manual. The proposed addition and modifying the root rib of the left wing, postcard on which the following modification would be accomplished in and incorporating changes and statement is made: ‘‘Comments to accordance with Scheibe TN Number operating limitations to the flight Docket No. 94–CE–35–AD.’’ The 336–2, dated March 10, 1989. The manual. Failure of the left wing root rib postcard will be date stamped and operating limitations and flight manual on one of the affected gliders while in returned to the commenter. changes are included in the TN. flight prompted the proposed action. The FAA estimates that 2 gliders in The actions specified by the proposed Availability of NPRMs the U.S. registry would be affected by AD are intended to prevent fatigue Any person may obtain a copy of this the proposed AD, that it would take failure of the wing, which could result NPRM by submitting a request to the approximately 20 workhours per glider in loss of control of the glider. FAA, Central Region, Office of the to accomplish the proposed action, and DATES: Comments must be received on Assistant Chief Counsel, Attention: that the average labor rate is or before June 16, 1995. Rules Docket No. 94–CE–35–AD, Room approximately $60 an hour. Parts cost ADDRESSES: Submit comments in 1558, 601 E. 12th Street, Kansas City, approximately $50 per glider. Based on triplicate to the Federal Aviation Missouri 64106. these figures, the total cost impact of the Administration (FAA), Central Region, proposed AD on U.S. operators is Office of the Assistant Chief Counsel, Discussion estimated to be $2,500 ($1,250 per Attention: Rules Docket No. 94–CE–35– The Luftfarht-Bundesant (LBA), glider). This figure is based on the AD Room 1558, 601 E. 12th Street, which is the airworthiness authority for assumption that no affected owner/ Kansas City, Missouri 64106. Comments Germany, recently notified the FAA that operator of the affected gliders has may be inspected at this location an unsafe condition may exist on certain incorporated the proposed addition, between 8 a.m. and 4 p.m., Monday Scheibe SF34 and SF34B gliders. The modification, or operating changes and through Friday, holidays excepted. LBA reports that fatigue failure of the limitations. Service information that applies to the root rib occurred on one of these gliders The regulations proposed herein proposed AD may be obtained from while in flight, which resulted in an would not have substantial direct effects Scheibe Flugzeugbau GmbH, August accident. The glider in the referenced on the States, on the relationship Pfaltz—Strasse 23, Dachau, Germany. accident was within 3,000 to 6,000 between the national government and This information also may be examined hours time-in-service (TIS). The life the States, or on the distribution of at the Rules Docket at the address above. limit of the wing structure was recently power and responsibilities among the FOR FURTHER INFORMATION CONTACT: Mr. extended from 3,000 hours TIS to 6,000 various levels of government. Therefore, Herman C. Belderok, Project Officer, hours TIS. in accordance with Executive Order Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16399 12612, it is determined that this presence of any modification, alteration, or Missouri 64106. Issued in Kansas City, proposal would not have sufficient repair remove any glider from the Missouri, on March 24, 1995. federalism implications to warrant the applicability of this AD. Dwight A. Young, preparation of a Federalism Assessment. Compliance: Required within the next 50 Acting Manager, Small Airplane Directorate, For the reasons discussed above, I hours TIS after the effective date of this AD, Aircraft Certification Service. certify that this action (1) is not a unless already accomplished. [FR Doc. 95–7799 Filed 3–29–95; 8:45 am] ‘‘significant regulatory action’’ under To prevent fatigue failure of the wing, BILLING CODE 4910±13±U Executive Order 12866; (2) is not a which could result in loss of control of the ‘‘significant rule’’ under DOT glider, accomplish the following: Regulatory Policies and Procedures (44 (a) Add armature (supportive covering) to DEPARTMENT OF COMMERCE FR 11034, February 26, 1979); and (3) if both wings in accordance with the job promulgated, will not have a significant instructions section of Scheibe Technical National Oceanic and Atmospheric economic impact, positive or negative, Note (TN) No. 336–2, dated March 10, 1989. Administration on a substantial number of small entities (b) Modify the root rib of the left wing in under the criteria of the Regulatory accordance with the job instructions section 15 CFR Parts 929 and 937 of Scheibe TN No. 336–2, dated March 10, Flexibility Act. A copy of the draft [Docket No. 941085±4285] regulatory evaluation prepared for this 1989. action has been placed in the Rules (c) Accomplish the following flight manual RIN 0648±AD85 Docket. A copy of it may be obtained by changes: contacting the Rules Docket at the (1) Replace pages 1 and 13 of the flight Florida Keys National Marine location provided under the caption manual with the revised pages 1 and 13 Sanctuary Proposed Regulations included with Scheibe TN Number 336–1, ADDRESSES. AGENCY: dated March 10, 1989. Office of Ocean and Coastal List of Subjects in 14 CFR Part 39 (2) Replace pages 1 and 11 in the Resource Management (OCRM), Instructions for Continued Airworthiness National Ocean Service (NOS), National Air transportation, Aircraft, Aviation Oceanic and Atmospheric safety, Safety. with the revised pages 1 and 11 included with Scheibe TN Number 336–1, dated Administration (NOAA), Commerce. The Proposed Amendment March 10, 1989. ACTION: Proposed rule; removal and Accordingly, pursuant to the (3) In page 8 of the flight manual, add 1 revision of regulations; Summary of authority delegated to me by the kg to the current empty weight of the glider Draft Management Plan; Proposed Administrator, the Federal Aviation and deduct 1kg from the current maximum Designation Document; Public Administration proposes to amend part load as specified in paragraph 3 of the Availability of Draft Management Plan 39 of the Federal Aviation Regulations Instructions section of Scheibe TN Number and Draft Environmental Impact (14 CFR part 39) as follows: 336–1, dated March 10, 1989. Statement. (4) Remove existing operating limitations PART 39ÐAIRWORTHINESS and incorporate new operating limitations SUMMARY: NOAA, as required by section DIRECTIVES into the Limitations section of the flight 7(a) of the Florida Keys National Marine manual as specified in paragraph 4 of the Sanctuary and Protection Act, is 1. The authority citation for part 39 Instructions section of Scheibe TN Number proposing a comprehensive continues to read as follows: 336–1, dated March 10, 1989. management plan and implementing Authority: 49 U.S.C. App. 1354(a), 1421 (d) Special flight permits may be issued in regulations to manage an approximately and 1423; 49 U.S.C. 106(g); and 14 CFR accordance with sections 21.197 and 21.199 2,800 square nautical mile area of 11.89. of the Federal Aviation Regulations (14 CFR coastal and ocean waters and the 21.197 and 21.199) to operate the glider to a submerged lands thereunder, § 39.13 [AMENDED] location where the requirements of this AD surrounding the Florida Keys in and 2. Section 39.13 is amended by can be accomplished. adjacent to the State of Florida, adding a new AD to read as follows: (e) An alternative method of compliance or designated by the Florida Keys National Scheibe Flugzeugbau GmbH: Docket No. 94– adjustment of the compliance time that Marine Sanctuary and Protection Act as CE–35–AD. provides an equivalent level of safety may be the Florida Keys National Marine Applicability: SF34 and SF34B gliders approved by the Manager, Small Airplane Sanctuary (the ‘‘Sanctuary’’). This (serial number 5102 through 5131), Directorate, FAA, 1201 Walnut, suite 900, document publishes the Designation certificated in any category. Kansas City, Missouri 64106. The request Document, and summarizes the draft Note 1: This AD applies to each glider should be forwarded through an appropriate comprehensive management plan, for identified in the preceding applicability FAA Maintenance Inspector, who may add the Sanctuary. The draft management provision, regardless of whether it has been comments and then send it to the Manager, plan details the proposed goals and modified, altered, or repaired in the area Small Airplane Directorate. subject to the requirements of this AD. For objectives, management responsibilities, gliders that have been modified, altered, or Note 2: Information concerning the research activities, interpretive and repaired so that the performance of the existence of approved alternative methods of educational programs, and enforcement, requirements of this AD is affected, the compliance with this AD, if any, may be including surveillance, activities for the owner/operator must use the authority obtained from the Small Airplane Sanctuary. The proposed regulations provided in paragraph (e) of this AD to Directorate. would implement the comprehensive request approval from the FAA. This (f) All persons affected by this directive management plan and govern the approval may address either no action, if the may obtain copies of the document referred conduct of activities consistent with the current configuration eliminates the unsafe to herein upon request to Scheibe provisions of the Designation condition, or different actions necessary to address the unsafe condition described in Flugzeugbau GmbH, Dachau, Aug. Pfaltz - Document. The intended effect of the this AD. Such a request should include an Str. 23, Dachau, Germany; or may examine Designation Document, proposed assessment of the effect of the changed this document at the FAA, Central Region, regulations, and DEIS/MP is to protect configuration on the unsafe condition Office of the Assistant Chief Counsel, Room the conservation, recreational, addressed by this AD. In no case does the 1558, 601 E. 12th Street, Kansas City, ecological, historical, research, 16400 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules educational, and aesthetic qualities of NOAA Circular 83–38, Directive 05–50 the wise use of the marine environment the Florida Keys coastal and ocean (Sept. 21, 1983, as amended). through public interpretive, waters and the submerged lands Holders of, owners of, or future educational, and recreational programs, thereunder. applicants for leases, permits, licenses, and (4) facilitate, to the extent DATES: Comments are invited and will approvals, other authorizations, or compatible with the primary objective be considered if submitted in writing to rights of subsistence use of, or access to, of resource protection, multiple uses of the address below by December 31, Sanctuary resources, are specifically the Sanctuary. 1995. invited to comment on how they may be affected by the designation of the A. Resource Protection ADDRESSES: Requests for the above Sanctuary and particularly sections The highest priority management goal described documents and comments 929.14–929.16 of the proposed is to protect the marine environment, should be submitted to the regulations. resources, and qualities of the Superintendent, Florida Keys National Comments are also specifically sought Sanctuary. The specific objectives of Marine Sanctuary, P.O. Box 500368, on the adequacy of the regulatory protection efforts are to: (1) Reduce Marathon, Florida 33050. regime to protect Sanctuary resources threats to Sanctuary resources; (2) FOR FURTHER INFORMATION CONTACT: and qualities. encourage participation by interested Billy Causey, Sanctuary Superintendent, After the comments received during agencies and organizations in the 305/743–2437 or Edward Lindelof, the comment period have been development of procedures to address Atlantic, Great Lakes and Gulf Branch considered, a final environmental specific management concerns (e.g., Chief, 301/713–3137 X 131. impact statement and management plan monitoring and emergency-response will be prepared, and final regulations programs); (3) develop an effective and SUPPLEMENTARY INFORMATION: implementing the comprehensive coordinated program for the I. Introduction management plan will be published in enforcement of Sanctuary regulations in the Federal Register. The designation addition to other regulations already in Title III of the Marine Protection, document, management plan, and place; (4) promote public awareness of, Research, and Sanctuaries Act of 1972, regulations will become final and take and voluntary compliance with, as amended, 16 U.S.C. 1431 et seq. (the effect at the close of a 45-day Sanctuary regulations and objectives ‘‘MPRSA’’), authorizes the Secretary of Congressional review period unless a through an educational/interpretive Commerce to designate discrete areas of joint resolution disapproving any of the program stressing resource sensitivity the marine environment as national terms of designation is enacted, in and wise use; (5) ensure that the water marine sanctuaries to protect their which case only the terms not quality of the Florida Keys is conservation, recreational, ecological, disapproved will take effect, or the maintained at a level consistent with the historical, research, educational, or Governor of the State of Florida certifies purposes of Sanctuary designation; (6) aesthetic qualities. to the Secretary of Commerce that the establish cooperative agreements and The Florida Keys National Marine designation or any of its terms is other mechanisms for coordination Sanctuary was designated by an act of unacceptable, in which case the among all the agencies participating in Congress entitled the Florida Keys designation or the unacceptable terms Sanctuary management; (7) ensure that National Marine Sanctuary and will not take effect in the area of the the appropriate management agencies Protection Act (FKNMSPA, Pub. L. 101– Sanctuary lying within the seaward incorporate research results and 605) signed into law on November 16, boundary of the State. A document will scientific data into effective resource 1990. be published in the Federal Register protection strategies; and (8) coordinate NOAA held six public scoping announcing the effective date. policies and procedures among the meetings during the months of April agencies sharing responsibility for and May, 1991, to solicit public II. Summary of Draft Environmental Impact Statement/Management Plan protection and management of comments on the proposed management resources. of the Sanctuary: Key Largo on April The DEIS/MP for the Florida Keys 10th, Miami on April 11th, Marathon on National Marine Sanctuary sets forth the B. Research Program April 15th, and Key West on April 16th, Sanctuary’s location and provides Effective management of the Key Largo on April 17, and Washington, details on the most important resources Sanctuary requires the conduct of a D.C. on May 6. Notice of the scoping and uses of the Sanctuary. The DEIS/MP Sanctuary research program. The meetings was published in local describes the resource protection, purpose of Sanctuary research is to newspapers. NOAA invited all research, education and interpretive improve understanding of the Florida interested persons to attend, and asked programs, and details the specific Keys’ coastal and offshore environment, those attending the meeting to comment activities to be conducted in each resources, and qualities, and to resolve on readily identifiable issues, suggest program. The DEIS/MP includes a specific management problems. Some of additional issues for examination, and detailed discussion, by program area, of these management problems involve provide information useful in managing agency roles and responsibilities. The resources common to coastal and the Sanctuary. proposed goals and objectives for the offshore waters, and nearby Federal, The authority of the Secretary to Sanctuary are: (1) Enhance resource State, and local refuges and reserves. designate national marine sanctuaries protection through comprehensive and Research results will both support was delegated to the Under Secretary of coordinated conservation and ecosystem management efforts to protect Sanctuary Commerce for Oceans and Atmosphere management that complements existing resources and qualities, and be by the Department of Commerce, regulatory authorities; (2) support, incorporated into interpretative Organization Order 10–15, section promote, and coordinate scientific programs for visitors and others 3.01(z) (Jan. 11, 1988). The authority to research on, and monitoring of, the site- interested in the Sanctuary. administer the other provisions of the specific marine resources to improve Specific objectives for the research Act was delegated to the Assistant management decision-making in program are to: (1) establish a Administrator for Ocean Services and national marine sanctuaries; (3) enhance framework and procedures for Coastal Zone Management of NOAA by public awareness, understanding, and administering research to ensure that Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16401 research projects are responsive to use the Sanctuary to respect sensitive amended to include the type of activity management concerns and that results Sanctuary resources and qualities; and by the procedures outlined in section contribute to improved management of (4) monitor and assess the levels of use 304(a) of the MPRSA. the Sanctuary; (2) focus and coordinate to identify and control potential Article II. Description of the Area data collection efforts on the physical, degradation of resources and qualities, chemical, geological, and biological and minimize potential user conflicts. The Florida Keys National Marine oceanography of the Sanctuary; (3) The Sanctuary would be managed Sanctuary boundary encompasses encourage studies that integrate research from a headquarters facility located in approximately 2,800 square nautical from the variety of coastal habitats with the Florida Keys region. miles (9,500 square kilometers) of coastal and oceanic waters, and the nearshore and open ocean processes; (4) III. Designation Document initiate a monitoring program to assess submerged lands thereunder, environmental changes as they occur Section 304(a)(4) of the MPRSA surrounding the Florida Keys in and due to natural and human processes; (5) requires that the Terms of Designation adjacent to the State of Florida. The identify the range of effects on the include the geographic area included Sanctuary boundary extends from the environment that would result from within the Sanctuary; the characteristics northeasternmost point of Biscayne predicted changes in human activity or of the area that give it conservation, National Park out to the Dry Tortugas, natural phenomena; (6) encourage recreational, ecological, historical, a linear distance of approximately 320 information exchange and cooperation research, educational, or aesthetic value; kilometers. The boundary on the among all the organizations and and the types of activities that will be Atlantic Ocean side of the Florida Keys agencies undertaking management- subject to regulation by the Secretary to runs south from Biscayne National Park related research in the Sanctuary to protect these characteristics. Section following approximately the 300-foot promote more informed management; 304(a)(4) also specifies that the terms of isobath, which curves in a and (7) incorporate research results into designation may be modified only by southwesterly direction along the the interpretive/education program in a the same procedures by which the Florida Keys archipelago ending at the format useful for the general public. original designation was made. Thus the Dry Tortugas. The boundary on the Gulf terms of designation serve as a of Mexico-side of the Florida Keys runs C. Education constitution for the Sanctuary. in an easterly direction from the Dry The goal for the Sanctuary education Tortugas paralleling the Florida Keys, Designation Document for the Florida program is to improve public awareness approximately five miles to the north, Keys National Marine Sanctuary and understanding of the significance of and then follows the Everglades the Sanctuary and the need to protect its On November 16, 1990, the Florida National Park boundary until Division resources and qualities. Keys National Marine Sanctuary and Point at which time the boundary The management objectives designed Protection Act (FKNMSPA), Public Law follows the western shore of Manatee to meet this goal are to: (1) Provide the 101–605, set out as a note to 16 U.S.C. Bay, Barnes Sound, and Card Sound. public with information on the 1433, was signed into law. The Florida The boundary then follows the southern Sanctuary and its goals and objectives, Keys National Marine Sanctuary and boundary of Biscayne National Park and with an emphasis on the need to use Protection Act designated an area of up its eastern boundary until its Sanctuary resources and qualities waters and submerged lands, including northeasternmost point. wisely to ensure their long-term the living and nonliving resources The shoreward boundary of the viability; (2) broaden support for within those waters, as described in Sanctuary is the mean high-water mark. Sanctuary management by offering section 5 of the FKNMSPA, as the The Sanctuary boundary encompasses programs suited to visitors with a Florida Keys National Marine all of the Florida coral reef tract, all of diverse range of interests; (3) provide for Sanctuary. the mangrove islands of the Florida Keys, and some of the seagrass meadows public involvement by encouraging Article I. Effect of Designation feedback on the effectiveness of of Florida Bay. The precise boundary of education programs, collaboration with Title III of the Marine Protection, the Sanctuary is set forth at the end of Sanctuary management staff in Research, and Sanctuaries Act of 1972 this Designation Document. extension and outreach programs, and as amended (the ‘‘MPRSA’’), 16 U.S.C. 1431 et seq., authorizes the issuance of Article III. Characteristics of the Area participation in other volunteer that Give it Particular Value programs; and (4) collaborate with other such regulations as are necessary and organizations to provide educational reasonable to implement the The Florida Keys are a limestone services complementary to the designation, including managing and island archipelago extending southwest Sanctuary program. protecting the conservation, over 320 kilometers from the southern recreational, ecological, historical, tip of the Florida mainland. The Keys D. Visitor Use research, educational and esthetic are located at the southern edge of the The Sanctuary goal for visitor use resources and qualities of the Florida Floridian Plateau, a large carbonate management is to facilitate, to the extent Keys National Marine Sanctuary. platform made of a depth of up to 7,000 compatible with the primary objective Section 1 of Article IV of this meters of marine sediments, which have of resource protection, public and Designation Document lists activities of been accumulating for 150 million years private uses of the resources of the the type that will be regulated initially, and have been structurally modified by Sanctuary not prohibited pursuant to or may be subject to regulated subsidence and sea level fluctuation. other authorities. subsequent regulation in order to The Keys region is generally divided Specific management objectives are protect Sanctuary resources and into five distinct areas: the Florida reef to: (1) Provide relevant information qualities. Such listing does not tract, one of the world’s largest coral about Sanctuary regulations, use necessarily mean that a type of activity reef tracts and the only barrier reef in policies, and standards; (2) collaborate will be regulated; however, if a type of the United States; Florida Bay, with public and private organizations in activity is not listed it may not be described as an active lime-mud factory promoting compatible uses of the regulated, except on an emergency because of the high carbonate content of Sanctuary; (3) encourage the public who basis, unless Section 1 of Article IV is the silts and muds; the Southwest 16402 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules Continental Shelf; the Straits of Florida; fees for conducting the activity, and marinas or at docks within or adjacent and the Keys themselves. prohibition of the activity, either to the Sanctuary; The 2.4 million-acre Sanctuary throughout the entire Sanctuary h. Removal of vessels grounded, contains one of North America’s most (including both land and water areas), lodged, stuck or otherwise perched on diverse assemblages of estuarine and after public notice and an opportunity coral reefs or other Sanctuary resources; marine fauna and flora, including, in for comment, or within identified and removal from any location within addition to the Florida reef tract, portions of the Sanctuary or in areas the Sanctuary and disposal of derelict or thousands of patch reefs, one of the adjacent to the Sanctuary to the extent abandoned vessels or other vessels for world’s largest seagrass communities necessary and reasonable to ensure the which ownership cannot be determined covering 1.4 million acres, mangrove- protection and management of the or for which owner takes no action for fringed shorelines, mangrove islands, conservation, recreational, ecological, removal or disposal; and salvaging and and various hardbottom habitats. These historical, research, educational or towing of abandoned or disabled vessels diverse habitats provide shelter and esthetic resources and qualities of the or of vessels otherwise needing food for thousands of species of marine area. Such activities include, but are not salvaging and towing; plants and animals, including over 50 limited to: i. Possessing or using within the species of animals identified by either a. Discharging or depositing, from Sanctuary or any part thereof, any Federal or State law as endangered or within or from beyond the boundary of fishing gear, trap, device, equipment or threatened. Federal, State, local, and the Sanctuary, any material or other means, whether regulated based on private organizations currently protect, matter, including aerially-sprayed method or based on quantity of fish preserve and set regulations at 121 sites pesticides, that enters or could enter the present or quantity of fish caught in throughout the Keys, covering Sanctuary; and reporting of discharges identified fisheries; and providing approximately 2.0 million acres. or deposits, from within or from beyond information to Federal, State, and local The Keys were at one time a major the boundary of the Sanctuary, any officials within the Sanctuary and seafaring center for European and material or other matter, including adjacent to the Sanctuary about the American trade routes in the Caribbean, aerially-sprayed pesticides, that enters quantity and type of fish and other and submerged cultural and historic or could enter the Sanctuary; living Sanctuary resources caught resources (i.e., shipwrecks) abound in b. Exploring for, developing, or during any vessel travel; the surrounding waters. In addition, the producing oil, gas or minerals (e.g., clay, j. Possessing or using explosives or air Sanctuary may contain substantial stone, sand, gravel, metalliferous ores guns or releasing electrical charges or archaeological resources of pre- and nonmetalliferous ores or any other substances poisonous or toxic to fish European cultures. solid material or other matter of and other living resources within the The uniqueness of the marine commercial value) in the Sanctuary; Sanctuary boundary or adjacent to the environment draws multitudes of c. Drilling into, dredging or otherwise Sanctuary boundary; visitors to the Keys. The major industry altering the seabed of the Sanctuary; or k. Stocking or release of native or in the Florida Keys is tourism, including constructing, placing or abandoning any exotic species; activities related to the Keys’ marine structure, material or other matter on l. Harvesting or otherwise taking resources, such as dive shops, charter the seabed of the Sanctuary; sponges; fishing and dive boats and marinas, as d. Taking, removing, moving, m. Removal and disposal of lost or well as hotels and restaurants. The catching, collecting, harvesting, feeding, out-of-season gear discovered within the abundance of the resources also injuring, destroying or causing the loss Sanctuary boundary; supports a large commercial fishing of, or attempting to take, remove, move, n. Development or conduct in the employment sector. catch, collect, harvest, feed, injure, Sanctuary of mariculture activities; The number of visitors to the Keys destroy or cause the loss of a marine o. Flying a motorized aircraft above grows each year, with a concomitant mammal, marine reptile, seabird, the Sanctuary; increase in the number of residents, historical resource or other Sanctuary p. Construction, alteration, repair or homes, jobs, and businesses. As resource; other work on docks and marinas; e. Touching with any part of the body, population grows and the Keys q. Activities or situations on land that climbing on, taking, removing, moving, accommodate ever-increasing resource- may result in water quality degradation, catching, collecting, harvesting, use pressures, the quality and quantity including but not limited to: injuring, destroying or causing the loss of Sanctuary resources are increasingly 1. Dredging and filling, particularly of of, or attempting to take, remove, move, threatened. These pressures require wetlands; catch, collect, harvest, feed, injure, coordinated and comprehensive 2. Construction activities; destroy or cause the loss of living or management, monitoring and research 3. Use and management of hazardous dead coral; of the Florida Keys’ region. chemicals, including, but not limited to, f. Possessing within the Sanctuary a pesticides, fertilizers, and motor oil; Article IV. Scope of Regulations Sanctuary resource or any other 4. Waste disposal and discharge on resource, regardless of where taken, Section 1. Activities Subject to land; and removed, moved, caught, collected or 5. Water quality in basins and canals; Regulation harvested, that, if it had been found and In order to protect the characteristics within the Sanctuary, would be a r. Interfering with, obstructing, and values of the Sanctuary described Sanctuary resource; delaying or preventing an investigation, above, all activities adversely affecting g. Operation of a vessel (i.e., search, seizure or disposition of seized the resources or property of the watercraft of any description), including property in connection with Sanctuary, whether individually or but not limited to anchoring or enforcement of the Act or any regulation cumulatively, or that pose harm to users otherwise mooring a vessel; and all or permit issued under the Act. of the Sanctuary are subject to activities necessary for vessel operation regulation, including regulation of or maintenance, such as pump-out of Section 2. Emergencies method, location and times of sanitary wastes and refueling, in the Where necessary to prevent or conducting the activity, assessment of Sanctuary or any part thereof or in minimize the destruction of, loss of, or Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16403 injury to a Sanctuary resource or Governor of the State of Florida, and (xii) 24 degrees 55 minutes north quality; or minimize the imminent risk approval by the Secretary of Commerce latitude, 80 degrees 56 minutes west of such destruction, loss or injury, any or designee. longitude; activity, including any not listed in Florida Keys National Marine Sanctuary (d) Then follows the boundary of section 1 of this article, is subject to Boundary Coordinates (based on North Everglades National Park in a southerly immediate temporary regulation, American datum of 1983.) then northeasterly direction through including prohibition. Florida Bay, Buttonwood Sound, The boundary of the Florida Keys Tarpon Basin, and Blackwater Sound; Article V. Effect on Leases, Permits, National Marine Sanctuary— Licenses, and Rights (e) After Division Point, then departs (a) Begins at the northeasternmost from the boundary of Everglades If any valid law or regulation issued point of Biscayne National Park located National Park and follows the western by any Federal, State or local authority at approximately 25 degrees 39 minutes shoreline of Manatee Bay, Barnes north latitude, 80 degrees 5 minutes of competent jurisdiction, regardless of Sound, and Card Sound; west longitude, then runs eastward to when issued, conflicts with a Sanctuary (f) Then follows the southern the 300-foot isobath located at regulation, the regulation deemed by the boundary of Biscayne National Park to Director, Office of Ocean and Coastal approximately 25 degrees 39 minutes the southeasternmost point of Biscayne Resource Management, National north latitude, 80 degrees 4 minutes National Park; and Oceanic and Atmospheric west longitude; (g) Then follows the eastern boundary Administration, or his or her designee to (b) Then runs southward and of Biscayne National Park to the be more protective of Sanctuary connects in succession the points at the beginning point specified in paragraph resources and qualities shall govern. following coordinates: Pursuant to section 304(c)(1) of the (i) 25 degrees 34 minutes north (a). Act, 16 U.S.C. 1434(c)(1), no valid lease, latitude, 80 degrees 4 minutes west IV. Summary of Proposed Regulations permit, license, approval or other longitude, authorization issued by any Federal, (ii) 25 degrees 28 minutes north Two sets of existing regulations will State, or local authority of competent latitude, 80 degrees 5 minutes west be eliminated and replaced by the jurisdiction, or any right of subsistence longitude, and proposed rule. Specifically, parts 929 use or access, may be terminated by the (iii) 25 degrees 21 minutes north and 937 to title 15, Code of Federal Secretary of Commerce, or his or her latitude, 80 degrees 7 minutes west Regulations, implementing the Key designee, as a result of this designation, longitude; Largo and Looe Key sanctuaries, or as a result of any Sanctuary (iv) 25 degrees 16 minutes north respectively, will be removed and regulation, if such authorization or right latitude, 80 degrees 8 minutes west replaced by the proposed revision to was in existence on the effective date of longitude; part 929. Pursuant to section 5 of the Sanctuary designation (November 16, (c) Then runs southwesterly Florida Keys National Marine Sanctuary 1990). However, the Secretary of approximating the 300-foot isobath and and Protection Act, the existing Key Commerce or designee may regulate the connects in succession the points at the Largo and Looe Key National Marine exercise (including, but not limited to, following coordinates: Sanctuaries will be incorporated into (i) 25 degrees 7 minutes north the imposition of terms and conditions) the Florida Keys National Marine latitude, 80 degrees 13 minutes west of such authorization or right consistent Sanctuary. longitude, with the purposes for which the The proposed regulations set forth the (ii) 24 degrees 57 minutes north boundary of the Sanctuary; prohibit a Sanctuary is designated. latitude, 80 degrees 21 minutes west In no event may the Secretary or range of activities generally and within longitude, specific Sanctuary zones; establish designee issue a permit authorizing, or (iii) 24 degrees 39 minutes north otherwise approving: (1) The procedures for applying for National latitude, 80 degrees 52 minutes west Marine Sanctuary permits to conduct exploration for, leasing of, development longitude, of, or production of minerals or otherwise prohibited activities, establish (iv) 24 degrees 30 minutes north procedures for applying for Special Use hydrocarbons within the Sanctuary; or latitude, 81 degrees 23 minutes west (2) the disposal of dredged material permits; establish certification longitude, procedures for existing leases, licenses, within the Sanctuary, or the discharge (v) 24 degrees 25 minutes north permits, approvals, other authorizations, of untreated or primary treated sewage latitude, 81 degrees 50 minutes west or rights authorizing the conduct of a (except by a certification, pursuant to longitude, Section 940.10, of valid authorizations (vi) 24 degrees 22 minutes north prohibited activity; establish in existence on the effective date of latitude, 82 degrees 48 minutes west notification procedures for applications Sanctuary designation). Any purported longitude, for leases, licenses, permits, approvals, authorizations issued by other (vii) 24 degrees 37 minutes north or other authorizations to conduct a authorities after the effective date of latitude, 83 degrees 6 minutes west prohibited activity; set forth the Sanctuary designation for any of these longitude, maximum per-day penalties for activities within the Sanctuary shall be (viii) 24 degrees 40 minutes north violating Sanctuary regulations; and invalid. latitude, 83 degrees 6 minutes west establish procedures for administrative appeals. Article VI. Alteration of this Designation longitude, (ix) 24 degrees 46 minutes north Section 929.1 sets forth as the purpose The terms of designation, as defined latitude, 82 degrees 54 minutes west of the regulations to implement the under Section 304(a) of the MPRSA, longitude, designation and comprehensive may be modified only by the procedures (x) 24 degrees 44 minutes north management plan for the Florida Keys outlined in such section, including latitude, 81 degrees 55 minutes west National Marine Sanctuary by regulating public hearings, consultation with longitude, activities affecting the Sanctuary in interested Federal, State, and local (xi) 24 degrees 51 minutes north order to protect, preserve and manage agencies, review by the appropriate latitude, 81 degrees 26 minutes west the conservation, ecological, Congressional committees, and the longitude, and recreational, research, educational, 16404 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules historical and aesthetic resources and issued by any Federal, State or local reefs, to protect the biodiversity of the qualities of the area. authority of competent jurisdiction in Sanctuary, to protect the habitats of Section 929.2 and appendix I existence on (or conducted pursuant to commercially and ecologically following § 929.16 describe the any valid right of subsistent use or important species, and to preserve the boundary of the Sanctuary as access in existence on) the effective date natural functional aspects of the established by Section 5 of the Florida of the Sanctuary designation, provided ecosystem. Keys National Marine Sanctuary and that the Director of the Office of Ocean The third activity prohibited is the Protection Act. and Coastal Resource Management alteration of, or construction on the Section 929.3 defines various terms (hereinafter the Director) was notified of seabed. This prohibition includes the used in the regulations. Other terms the existence of such authorization or use of propeller wash deflectors. The appearing in the regulations are defined right and the holder requests intent of this prohibition is to protect at 15 CFR 922.2 and/or in the NMSA. certification by the Director or designee the resources of the Sanctuary, such as Section 929.4 allows all activities pursuant to § 929.14, the holder seagrasses, from the harmful effects of except those prohibited by § 929.5 or by complies with the requirements of activities such as, but not limited to, § 929.6 to be conducted subject to all § 929.14, and the holder complies with treasure hunting, drilling into the applicable access and use restrictions any terms and conditions on the seabed, mining, ocean mineral imposed within Sanctuary zones exercise of such authorization the extraction, and dumping of dredge pursuant to § 929.6, subject to all Director or designee imposes as a spoils. prohibitions, restrictions and conditions condition of certification to achieve the The fourth activity prohibited is the validly imposed by any other Federal, purposes for which the Sanctuary was discharging or depositing of materials or State, or local authority of competent designated. other matter. The intent of this jurisdiction, subject to any emergency (4) The activity is specifically prohibition is to protect the Sanctuary regulations promulgated pursuant to authorized by a valid lease, permit, resources and qualities against the § 929.7, and subject to the liability license or approval or other harmful effects of land based and vessel established by Section 312 of the authorization issued after the effective source pollution, to reduce and prevent NMSA. This section is intended to date of the Sanctuary designation by any contamination by marine debris and assure that activities other than those Federal, State or local authority of related impacts associated with prohibited or otherwise restricted or competent jurisdiction, provided that pollution of the marine environment of conditioned pursuant to this part, or the Director or designee was notified of the Sanctuary. pursuant to any other Federal, State, or the application in accordance with the The fifth activity prohibited is the local authority of competent requirements of § 929.15, the applicant operation of: (1) A tank vessel or a jurisdiction, are allowed within the complies with the requirements of vessel greater than 50 meters in Sanctuary. Accordingly, such provision § 919.15, the Director or designee registered length in an area to be for allowed activities is not intended to notifies the applicant or authorizing avoided (ATBA); or (2) any vessel in a preempt other, more protective, agency that he or she does not object to manner that is either dangerous to regulatory provisions imposed by any issuance of the authorization, and the people or harms Sanctuary resources. other Federal, State or local authority of applicant complies with any terms and The boundary coordinates for the competent jurisdiction. conditions the Director or designee ATBAs are listed in Appendix VII to Section 929.5 prohibits a variety of deems reasonably necessary to protect part 929. The prohibition is designed to activities and thus makes it unlawful for Sanctuary resources and qualities. prevent vessel groundings on the coral any person to conduct them or cause The first activity prohibited is reef, and thus to minimize the risk of them to be conducted. However, any of exploring for, developing, or producing extensive physical damage, spills and the prohibited activities except for: (1) minerals or hydrocarbons within the associated, possibly irreparable, injury The exploration for, leasing, Sanctuary. This prohibition is based on to Sanctuary resources likely to result development or production of minerals best available scientific information from a grounding of a large vessel and or hydrocarbons within the Sanctuary, which establishes that the Sanctuary’s tank vessel. This prohibition further is or (2) the disposal of dredged material significant natural resources and intended to prevent injury to Sanctuary or primary (or untreated) sewage within qualities are especially sensitive to resources, prevent injury to humans the Sanctuary (except by a certification, potential impacts from outer continental (e.g., divers and swimmers), and to pursuant to § 929.14, of valid shelf minerals or hydrocarbon activities reduce shoreline erosion. authorizations in existence on the and should be protected. Specifically, The sixth activity prohibited is diving effective date of Sanctuary designation) the corals, seagrasses, and mangroves of without a red and white ‘‘divers down’’ could be conducted lawfully if one of the Florida Keys and the Sanctuary’s flag or a blue and white ‘‘alpha’’ flag in the following three (3) situations high water quality are especially Federal waters. The intent of this applies: vulnerable to oil and gas activities in the prohibition is to prevent injury to (1) The activity is necessary to area. A prohibition on oil and gas humans and thereby facilitate safe, respond to an emergency threatening activities within the Sanctuary multiple use of the Sanctuary. life or the environment. boundary would help protect the The seventh activity prohibited is the (2) The activity is specifically Sanctuary’s resources and qualities. A release of exotic species. Exotic species authorized by, and conducted in prohibition on mineral activities within can permanently alter an ecosystem by accordance with the scope, purpose, the Sanctuary is necessary to protect out competing indigenous species, terms and conditions of: a National Sanctuary resources and qualities, preying on indigenous species, etc. The Marine Sanctuary permit issued under consistent with the prohibition on intent of this prohibition is to prevent § 929.10; or a National Marine drilling into, dredging or otherwise injury to Sanctuary resources, to protect Sanctuary Historical Resources permit altering the seabed discussed below. the biodiversity of the Sanctuary, and to issued under § 929.11. The second activity prohibited is the preserve the natural functional aspects (3) The activity is specifically removal of, injury to, or possession of of the ecosystem. authorized by a valid lease, permit, coral or live rock. The intent of this The eighth activity prohibited is the license, approval or other authorization prohibition is to conserve the coral tampering with official signs or markers Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16405 or navigational aids. The intent of this facilitation of multiple, compatible uses, or designee, in cooperation with other prohibition is to prevent injury to consistent with the purposes of the Federal, State, or local resource Sanctuary resources, primarily corals Sanctuary designation. management authorities, as appropriate, and seagrasses, and to prevent injury to Section 929.6(a) provides that the shall effect such designation by posting humans. regulations applicable to the conduct of official signs conspicuously, using The ninth activity prohibited is the activities within any of the five types of mounting posts, buoys, or other means removing or injuring Sanctuary Sanctuary zones are in addition to the according to location and purpose, at historical resources. Submerged general prohibitions set forth in appropriate intervals and locations. The historical resources constitute paragraphs (a) and (b) of § 929.5. intent of these rules is to protect important, irreplaceable, public Activities conducted in those areas of Sanctuary wildlife resources from injury resources of the Sanctuary because they the Sanctuary that are located in two or or harmful disturbance within sensitive contain important information about more overlapping zones shall be areas and habitats of the Sanctuary. human history and culture. This concurrently subject to the regulations Section 929.6(d) sets forth prohibition is designed to protect these applicable to each such overlapping prohibitions applicable to activities resources so that they may be zone. conducted within Sanctuary researched, and information about their Section 929.6 identifies certain Preservation Areas and Replenishment contents and type made available for the Existing Management Areas which are Reserves. Specific prohibitions include benefit of the public. This prohibition listed in Appendix II to part 929. possessing, harvesting or otherwise does not apply to accidental moving, Existing Management Areas are existing injuring any coral, marine invertebrate, possession, or injury during normal Federal, State or local resource fish, bottom formation, algae, seagrass or fishing operations. management areas subject to the other living or dead organism in such The tenth activity prohibited is taking continuing management and control of areas; fishing by any means; touching or possessing protected wildlife. The another agency, notwithstanding the living or dead coral, including but not Sanctuary is an important staging area, exercise of concurrent authority by the limited to standing on a living or dead breeding area, and feeding area for a Assistant Administrator in accordance coral formation; placing anchors so as to variety of wildlife, including a number with this part. To the extent possible, touch living or dead coral or any sessile of endangered and threatened species. consistent with the purposes for which organism. Vessels shall use mooring The intent of this prohibition is to the Sanctuary was designated, the buoys or anchoring areas when such protect Sanctuary resources and regulations applicable to Existing facilities or areas have been designated endangered and/or threatened species. Management Areas shall be applied in and are available. The eleventh activity prohibited is the a manner that is compatible with such Section 929.6(d) further provides that possession or use of explosives and existing management authorities. the Director or designee may impose a electrical discharges. The intent of this Identification of the Key Largo and Looe limited access designation, or temporary prohibition is to prevent injury to Key Existing Management Areas area closure, within any Sanctuary Sanctuary resources or to humans. constitutes recognition of these areas as Preservation Area if the Director The twelfth activity prohibited is pre-existing National Marine determines that such action is interfering with law enforcement Sanctuaries that were subject to the reasonably necessary to allow for officers. The intent of this prohibition is management and control of the recovery of the living resources of such to prevent the obstruction of justice. Assistant Administrator prior to area from the adverse, cumulative Section 929.5(b) regulates the taking Sanctuary designation, and for which effects of concentrated use. or landing of marine life species, in continuing regulation as Existing The intent of the establishment of, accordance with the Marine Life rule of Management Areas will serve to and regulation of uses within, the the Florida Administrative Code maintain, to the extent possible, a level Sanctuary Preservation Areas is to avoid reproduced in Appendix VIII to this of management and control of uses in concentrations of uses that could result part. The intent of this regulation is to such areas that is at least as protective in significant declines in species protect Sanctuary resources and of Sanctuary resources and qualities as populations or habitat, to reduce biodiversity by adopting relevant that provided by their former status as conflicts between uses, to protect areas portions of the Florida Marine Life rule discrete National Marine Sanctuaries. that are critical for sustaining important as a uniform regulation to be applied Section 929.6(b)(2) further prohibits marine species or habitats, or to provide throughout the (federal and state) waters the operation of personal watercraft, opportunities for scientific research. of the Sanctuary. airboats or water skiing within the Great The intent of the establishment of, and Section 929.6 establishes five types of White Heron or Key West National iregulation of uses within, the water use zones within the Sanctuary, Wildlife Existing Management Areas. Replenishment Reserves is to minimize the prohibitions applicable to uses The intent of this prohibition is to human influences, to provide natural within such zones, and the regulations protect Sanctuary resources and spawning, nursery, and permanent governing access to, and use of, the qualities through coordination with the residence areas for the replenishment resources of such zones. The five zone U.S. Fish and Wildlife Service in a and genetic protection of marine life, types are: Existing Management Areas; manner that recognizes and and also to protect and preserve natural Wildlife Management Areas; Sanctuary complements the existing management assemblages of habitats and species Preservation Areas; Replenishment of these areas as components of the within areas representing a broad Reserves and Special Use Areas. The National Wildlife Refuge System. diversity of resources and habitats proposed location of these zones is Section 929.6(c) sets forth the rules found within the Sanctuary. specified in Appendices II, III, IV, V and governing access to, and use of, the Section 929.6(e) establishes VI to this part, respectively, Wildlife Management Areas described procedures and criteria pursuant to corresponding to the five zone types in Appendix III to part 929. Specifically, which the Director or designee may set stated above. The intent of the zoning access and use restrictions may include aside discrete areas of the Sanctuary as regulations is to protect Sanctuary the designation of any such zones as an Special Use Areas, and designate such resources and biodiversity, and provide ‘‘idle/no-wake speed’’, a ‘‘no motor’’ or areas as ‘‘recovery areas’’, ‘‘restoration for effective management and a ‘‘no access buffer’’ areas. The Director areas’’, ‘‘research only areas’’ or 16406 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules ‘‘facilitated use areas’’, as appropriate, finds that the activity will have only permits to conduct concession-type, to protect the Sanctuary resources and negligible short-term adverse effects on commercial activities within the qualities and allow for multiple, Sanctuary resources and qualities and Sanctuary. In accordance with the compatible uses within the Sanctuary. will: further research or monitoring provisions of Section 310 of the NMSA, Section 929.6(e) further provides criteria related to Sanctuary resources and the Director or designee may require a pursuant to which the Director or qualities; further the educational, Special Use permit for any such activity designee may issue an emergency notice natural or historical resource value of if he or she determines such modifying the number, location or the Sanctuary; further salvage or authorization is necessary to establish designation applicable to Special Use recovery operations in or near the conditions of access to and use of any Areas if the Director of designee Sanctuary in connection with a recent Sanctuary resource, or to promote determines that such immediate action air or marine casualty; or assist in public use and understanding of any is reasonably necessary to prevent managing the Sanctuary. For activities Sanctuary resource. No special use significant injury to Sanctuary resources proposed to be conducted within permit may be issued unless the activity or to initiate restoration or research Replenisment Reserves or Sanctuary is compatible with the purposes for activities where, due to emergency or Preservation Areas, the Director or which the Sanctuary was designated unforseen circumstances, delay would designee shall further find that such and can be conducted in a manner that impair the ability of such activities to activities will further and are consistent does not destroy, cause the loss of, or succeed. with the purposes for which such zone injure any Sanctuary resource. Section 929.7 authorizes the was established. In deciding whether to Applicants for Special Use permits regulation, including prohibition, on an issue a permit, the Director or designee are required to follow the same immediate, temporary basis of any is required to consider such factors as procedures specified for National activity where necessary to prevent or the professional qualifications and Marine Sanctuary permits in § 929.10 minimize the destruction of, loss of, or financial ability of the applicant as (d) through (g). injury to a Sanctuary resource or related to the proposed activity; the All National Marine Sanctuary, quality, or minimize the imminent risk duration of the activity and the duration National Marine Sanctuary Historical of such destruction, loss or injury. of its effects; the appropriateness of the Resources, or Special Use permits are Section 929.8 sets forth the maximum methods and procedures proposed by subject to the general permit conditions statutory civil penalty for violating the the applicant for the conduct of the specified in § 929.10(h). With respect to NMSA, the regulations or any permit activity; the extent to which the conduct any such permit, the Director or issued pursuant thereto—$100,000. of the activity may diminish or enhance designee, at his or her discretion, also Each such violation shall be subject to Sanctuary resources and qualities; the may impose special permit conditions forfeiture of property or Sanctuary indirect, secondary or cumulative in accordance with § 929.10(i). resources seized in accordance with effects of the activity; and the end value Section 929.13 provides that any section 307 of the NMSA. Each day of of the activity. In addition, the Director person conducting research in the a continuing violation constitutes a or designee is authorized to consider Sanctuary, including such research not separate violation. any other factors she or he deems involving prohibited activities, may Section 929.9 repeats the provision in appropriate. voluntarily register with the appropriate Section 312 of the NMSA that any Section 929.11 sets forth the Sanctuary field office. Upon person who destroys, causes the loss of, application procedures and issuance registration, the Sanctuary office will or injures any Sanctuary resource is criteria for National Marine Sanctuary issue a research flag to be used while liable to the United States for response Historical Resources permits to conduct conducting research within the costs, damages and interest resulting specific research activities involving the Sanctuary. Copies of research results, from such destruction, loss or injury, exploration for, recovery of, or transfer abstracts, and reports may be submitted and any vessel used to destroy, cause of historical Sanctuary resources to the Sanctuary field office to be the loss of, or injure any Sanctuary specified under § 929.11 and otherwise retained for Sanctuary management resource is liable in rem to the United prohibited by the regulations. A permit purposes, public observation, and peer States for response costs, damages and may be issued by the Director or review. interest resulting from destruction, loss designee at his or her discretion in Section 929.14 sets forth procedures or injury. The purpose of these sections accordance with the requirements of for requesting certification of leases, is to notify the public of the liability for § 929.11 and consistent with the permits, licenses, approvals, other violating a Sanctuary regulation, a Programmatic Agreement Among authorizations or rights in existence on permit issued pursuant thereto or the NOAA, the Advisory Council on the date of Sanctuary designation NMSA. Historic Preservation, and the State of authorizing the conduct of an otherwise Regulations setting forth the Florida on Submerged Cultural prohibited activity. Notwithstanding the procedures governing administrative Resources (hereinafter SCR Agreement). prohibitions under paragraph (a) of proceedings for assessment of civil Recovery of historical resources will § 929.5 or § 929.6, a person may conduct penalties, permit sanctions and denials only be permitted when developed in any activity specifically authorized by a for enforcement reasons, issuance and conjunction with research to preserve valid lease, permit, license, approval or use of written warnings, and release or the historic information for public use. other authorization in existence on the forfeiture of seized property appear at Intrusive research and/or recovery will effective date of Sanctuary designation 15 CFR part 904. be based upon a balancing of factors and and issued by any Federal, State, or Section 929.10 sets forth the criteria to determine whether the goals local authority of competent procedures for applying for a National of preservation, research, education, and jurisdiction, or by any valid right of Marine Sanctuary permit to conduct a public access are better served by subsistence use or access in existence prohibited activity and the criteria permitting this type of activity as on the effective date of Sanctuary governing the issuance, denial, opposed to leaving the historic designation, provided that the holder of amendment, suspension and revocation resources in place. such authorization or right complies of such permits. A permit may be issued Section 929.12 sets forth criteria with the requirements of § 929.14 (e.g., by the Director or designee if he or she governing the issuance of Special Use notifies the Director or designee of the Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16407 existence of, requests certification of, with the other provisions in § 929.15, surveillance activities, for the area. In and provides requested information that the Director or designee notifies the accordance with Section 304, the regarding such authorization or right) applicant and authorizing agency that required documents are being submitted and complies with any terms and he or she does not object to issuance of to the specified Congressional conditions on the exercise of such the authorization, and that the applicant Committees. authorization or right imposed by the complies with any terms and conditions Executive Order 12866 Director or designee as she or he deems the Director or designee deems reasonably necessary to achieve the reasonably necessary to protect Under Executive Order 12866, if the purposes for which the Sanctuary was Sanctuary resources and qualities. proposed regulations are ‘‘significant’’ designated. Section 929.15 allows the Director or as defined in section 3(f) (1), (2), (3) or Section 929.14 allows the holder 90 designee to request additional (4) of the Order, an assessment of the days from the effective date of the information from the applicant and to potential costs and benefits of the proposed Sanctuary regulations in part seek the views of other persons. regulatory action must be prepared and 929 to request certification. The holder An application or an amendment to, submitted to the Office of Information is allowed to conduct the activity an extension of, or a renewal of an and Regulatory Affairs (OIRA) of OMB. without being in violation of paragraph authorization is also subject to the The Administration of NOAA has (a) of § 929.5 or 929.6 pending final provisions of § 929.15. determined that the proposed agency action on his or her certification The applicant may appeal any regulations are significant. The required request, provided the holder has objection by, or terms or conditions assessment has been prepared and complied with all requirements of imposed by, the Director or designee to submitted to OIRA. § 929.14. the Assistant Administrator or designee Regulatory Flexibility Act Section 929.14 also allows the in accordance with the procedures set The regulations proposed in this Director or designee to request forth in § 929.16. additional information from the holder Section 929.16 sets forth the notice would allow all activities to be and to seek the views of other persons. procedures for appealing to the conducted in the Sanctuary other than those activities that are specifically As a condition of certification, the Assistant Administrator or designee prohibited. The procedures proposed in Director or designee will impose such actions of the Director or designee with these regulations for applying for terms and conditions on the exercise of respect to: (1) the granting, denial, National Marine Sanctuary permits to such lease, permit, license, approval or conditioning, amendment, suspension conduct otherwise prohibited activities, other authorization or right as she or he or revocation of a National Marine for requesting certifications for pre- deems reasonably necessary to achieve Sanctuary permit under § 929.10, a existing leases, licenses, permits, the purposes for which the Sanctuary National Marine Sanctuary Historical approvals, other authorizations or rights was designated. This is consistent with Resources permit under § 929.11, or a authorizing the conduct of a prohibited the Secretary’s authority under Section Special Use permit under § 929.12 or activity, and for notifying NOAA of 304(c)(2) of the NMSA. (Section 929.14 Section 310 of the NMSA; (2) the applications for leases, licenses, has no application to mineral or conditioning, amendment, suspension, permits, approvals, or other hydrocarbon activities as there is no or revocation of a certification under authorizations to conduct a prohibited existing lease, permit, license, approval, § 929.14; or (3) the objection to issuance activity would all act to lessen any other authorization or right for any of or the imposition of terms and adverse economic effect on small these activities within the Sanctuary). conditions under § 929.15. The holder may appeal any action Prior to conditioning the exercise of entities. The proposed regulations, in conditioning, amending, suspending or existing leases, permits, licenses, total, if adopted in final form as revoking any certification in accordance approvals, other authorizations or rights proposed, are not expected to have a with the procedures set forth in or conditioning or objecting to proposed significant economic impact on a § 929.16. authorizations NOAA intends to consult substantial number of small entities, Any amendment, renewal or with relevant issuing agencies as well as and the General Counsel of the extension not in existence as of the date owners, holders or applicants. Department of Commerce has so of Sanctuary designation of a lease, certified to the Chief Counsel for permit, license, approval, other V. Miscellaneous Rulemaking Advocacy of the Small Business authorization or right is subject to the Requirements Administration. As a result, an initial provisions of § 929.15. Marine Protection, Research, and Regulatory Flexibility Analysis was not Section 929.15 provides, consistent prepared. with paragraph (f) of § 929.5, that Sanctuaries Act notwithstanding the prohibitions under Section 304 of the MPRSA requires Paperwork Reduction Act paragraph (a) of § 929.5 or § 929.6, a the Secretary to submit to the This proposed rule contains a person may conduct any activity Committee on Merchant Marine and collection of information requirement specifically authorized by any valid Fisheries of the House of subject to the requirements of the lease, permit, license, approval, or other Representatives and the Committee on Paperwork Reduction Act (Pub. L. 96– authorization issued after the effective Commerce, Science, and Transportation 511). The collection of information date of Sanctuary designation by any of the Senate, on the same day as this requirement applies to persons seeking Federal, State, or local authority of notice is published, the proposed terms permits to conduct otherwise prohibited competent jurisdiction, provided that of the designation, the proposed activities and is necessary to determine the applicant notifies the Director or regulations, a draft environmental whether the proposed activities are designee of the application for such impact statement, and a draft consistent with the management goals authorization within 15 days of the date management plan detailing the for the Sanctuary. The collection of of filing of the application or of the proposed goals and objectives, information requirement contained in efffective date of the proposed management responsibilities, research the proposed rule has been submitted to Sanctuary regulations, whichever is activities, interpretive and educational the Office of Management and Budget later, that the applicant is in compliance programs, and enforcement and for review under section 3504(h) of the 16408 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules Paperwork Reduction Act. The public or temporary physical occupation, Appendix I to Part 929—Florida Keys reporting burden per respondent for the invasion, or deprivation. While the National Marine Sanctuary boundary collection of information contained in prohibition on the exploration for, coordinates this rule is estimated to average 1.65 development, production of minerals Appendix II to Part 929—Existing Management Areas hours annually. This estimate includes and hydrocarbons from the Sanctuary Appendix III to Part 929—Wildlife the time for reviewing instructions, might have a takings implication if it Management Areas searching existing data sources, abrogated an existing lease for Outer Appendix IV to Part 929—Replenishment gathering and maintaining the data Continental Shelf (OCS) tracts within Reserves needed, and completing and reviewing the Sanctuary or an approval of an Appendix V to Part 929—Sanctuary the collection of information. Comments exploration or development and Preservation Areas from the public on the collection of production plan, no OCS leases have Appendix VI to Part 929—Special Use Areas information requirement are specifically been sold for tracts within the Sanctuary Appendix VII to Part 929—Coordinates for invited and should be addressed to the the Area to be Avoided and no exploration or production and Appendix VIII to Part 929—Marine Life Rule Office of Information and Regulatory development plans have been filed or Authority: 16 U.S.C. 1431 et seq.; Pub. L. Affairs, Office of Management and approved. 101–605, 104 Stat. 3090–3093. Budget, Washington, DC 20503 (Attn: Desk Officer for NOAA); and to Richard List of Subjects in 15 CFR Parts 929 and § 929.1 Purpose. Roberts, Room 724, 6010 Executive 937 The purpose of the regulations in this Boulevard, Rockville, MD 20852. Administrative practice and part is to implement the comprehensive Executive Order 12612 procedure, Coastal zone, Marine management plan for the Florida Keys resources, Penalties, Recreation and National Marine Sanctuary by regulating A Federalism Assessment (FA) was recreation areas, Reporting and activities affecting the resources of the prepared for the proposed designation recordkeeping requirements, Research. Sanctuary or any of the qualities, values, document, draft management plan, and or purposes for which the Sanctuary is proposed implementing regulations. (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) designated, in order to protect, preserve The FA concluded that all would be and manage the conservation, Dated: March 13, 1995. fully consistent with the principles, ecological, recreational, research, criteria, and requirements set forth in Frank W. Maloney, educational, historical, and aesthetic sections 2 through 5 of Executive Order Deputy Assistant Administrator for Ocean resources and qualities of the area. In 12612, Federalism Considerations in Services and Coastal Zone Management. particular, the regulations in this part Policy Formulation and Implementation Accordingly, for the reasons set forth are intended to protect, restore, and (52 FR 41685). Copies of the FA are above, 15 CFR Chapter IX is proposed enhance the living resources of the available upon request to the Office of to be amended as follows: Sanctuary, to contribute to the Ocean and Coastal Resource maintenance of natural assemblages of Management at the address listed in the SUBCHAPTER BÐOCEAN AND COASTAL living resources for future generations, RESOURCE MANAGEMENT address section above. to provide places for species dependent National Environmental Policy Act 1. Part 929 is revised to read as on such living resources to survive and follows: propagate, to facilitate to the extent In accordance with Section 304(a)(2) compatible with the primary objective of the Act (16 U.S.C. 1434(a)(2)), and the PART 929Ð-FLORIDA KEYS of resource protection all public and provisions of the National NATIONAL MARINE SANCTUARY private uses of the resources of the Environmental Policy Act of 1969 (42 Sanctuary not prohibited pursuant to U.S.C. 4321–4370(a)), a Draft Sec. other authorities, to reduce conflicts Environmental Impact Statement (DEIS) 929.1 Purpose. 929.2 Boundary. between such compatible uses, and to has been prepared for the designation 929.3 Definitions. achieve the other policies and purposes and the proposed regulations. As 929.4 Allowed activities. of the Florida Keys National Marine required by Section 304(a)(2), the DEIS 929.5 Prohibited activities; Sanctuary wide. Sanctuary and Protection Act and the includes the resource assessment report 929.6 Additional activity regulations by National Marine Sanctuaries Act. required by section 303(b)(3) of the Act Sanctuary zone. (16 U.S.C. 1433(b)(3)), maps depicting 929.7 Emergency regulations. § 929.2 Boundary. the boundaries of the designated area, 929.8 Penalties. The Sanctuary consists of all and the existing and potential uses and 929.9 Response costs and damages. submerged lands and waters from the resources of the area. Copies of the DEIS 929.10 National Marine Sanctuary Permits; application procedures and issuance mean high water mark to the boundary are available upon request to the Office criteria. described in Appendix I to this part, of Ocean and Coastal Resource 929.11 National Marine Sanctuary with the exception of areas within the Management at the address listed in the Historical Resources Permits; Dry Tortugas National Park. Appendix I address section above. exploration, research/recovery, research/ to this part sets forth the precise recovery/transfer; application procedures Executive Order 12630 Sanctuary boundary established by the and issuance criteria. Florida Keys National Marine Sanctuary This proposed rule, if issued in final 929.12 Special Use Permits. and Protection Act. (See FKNMSPA form as proposed, would not have 929.13 Sanctuary registry; research notice. section 5 (b)(2)). takings implications within the meaning 929.14 Certification of pre-existing leases, of Executive Order 12630 because it licenses, permits, approvals, other § 929.3 Definitions. would not appear to have an effect on authorizations, or rights to conduct a prohibited activity. (a) The following definitions apply to private property sufficiently severe as 929.15 Notification and review of this part: effectively to deny economically viable applications for leases, licenses, permits, Acts means the Florida Keys National use of any distinct legally potential approvals, or other authorizations to Marine Sanctuary and Protection Act, as property interest to its owner or to have conduct a prohibited activity. amended, (FKNMSPA) (Pub. L. 101– the effect of, or result in, a permanent 929.16 Appeals of administrative action. 605, 104 Stat. 3090–3093), and the Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16409 National Marine Sanctuaries Act (iv) Any operations at sea in support or any officer, employee, agent, (NMSA), also known as Title III of the of, or in preparation for, any activity department, agency, or instrumentality Marine Protection, Research, and described in paragraphs (1)(i) through of the Federal Government or of any Sanctuaries Act, as amended, (MPRSA) (iii) of this definition. State, regional, or local unit of (16 U.S.C. 1431 et seq.). (2) Such term does not include any government, or of any foreign Adverse effect means any factor, force, scientific research activity which is government. or action that would independently or conducted by a scientific research Personal watercraft means any jet and cumulatively damage, diminish, vessel. air-powered watercraft operated by degrade, impair, destroy, or otherwise Historical resource means any standing, sitting, or kneeling on or harm any Sanctuary resource, as defined resource possessing historical, cultural, behind the vessel, in contrast to a in section 302(8) of the NMSA (16 archaeological or paleontological conventional boat, where the operator U.S.C. 1432(8)) and in this § 929.3, or significance, including sites, contextual stands or sits inside the vessel, and that any of the qualities, values, or purposes information, structures, districts, and uses a two-cycle inboard engine to for which the Sanctuary is designated. objects significantly associated with or power a water jet pump for propulsion, Airboat means a vessel operated by representative of earlier people, instead of a propeller as in a means of a motor driven propeller that cultures, and human activities and conventional boat. pushes air for momentum. events. Historical resources include Prop-dredging means the use of a Area to be avoided means the area ‘‘submerged cultural resources’’, and vessel’s propulsion wash to dredge or decribed in which vessel operations are also include ‘‘historical properties’’, as otherwise alter the seabed of the prohibited pursuant to section 6(a)(1) of defined in the National Historic Sanctuary, excluding disturbance to the FKNMSPA (see § 929.5(a)(1)). Preservation Act, as amended, and bottom sediments resulting from normal Appendix VII to this part sets forth the implementing regulations, as amended. vessel propulsion. Prop-dredging geographic coordinates of the area to be Idle/no-wake speed means a speed at includes, but is not limited to, the use avoided, including any modifications which a boat is operated that is no of propulsion wash deflectors or similar thereto made in accordance with section greater than 4 knots and does not means of dredging or otherwise altering 6(a)(3) of the FKNMSPA. produce a wake. the seabed of the Sanctuary. Assistant Administrator means the Injure means to change adversely, Prop-scarring means the injury to Assistant Administrator for Ocean either in the long or short term, a seagrasses or other immobile organisms Services and Coastal Zone Management, chemical, biological, or physical attached to the seabed of the Sanctuary National Ocean Service. attribute of, or the viability of. To caused by operation of a vessel in a Director means the Director of the ‘‘injure’’ therefore includes, but is not manner that allows its propeller or other Office of Ocean and Coastal Resource limited to, to cause the loss of and to running gear, or any part thereof, to Management, National Ocean Service. destroy. cause such injury, excluding minor Existing Management Area means a Live rock means any living marine disturbances to bottom sediments or portion of the Sanctuary that is within organism or an assemblage thereof seagrass blades resulting from normal an existing resource management area attached to a hard substrate (including vessel propulsion. established by NOAA or by another dead coral or rock). For example, such Replenishment Reserve means a Federal, State, or local authority of living marine organisms associated with Sanctuary zone encompassing an area of competent jurisdiction within the hard bottoms, banks, reefs, and live rock contiguous, diverse habitats, within Sanctuary and that is identified in may include, but are not limited to: sea which uses are subject to conditions, Appendix II to this Part. anemones (Phylum CNIDARIA: Class restrictions and prohibitions, including Exotic species means a species of Anthozoa: Order Actinaria); sponges public access restrictions, intended to plant, invertebrate, fish, amphibian, (Phylum PORIFERA); tube worms minimize human influences, to provide reptile or mammal whose natural (Phylum ANNELIDA), including fan natural spawning, nursery, and zoogeographic range would not have worms, feather duster worms, and permanent residence areas for the included the waters of the Atlantic christmas tree worms; bryozoans replenishment and genetic protection of Ocean, Caribbean, or Gulf of Mexico (Phylum BRYOZOA); sea squirts marine life, and also to protect and without passive or active introduction (Phylum CHORDATA); and marine preserve natural assemblages of habitats to such area through anthropogenic algae, including Mermaid’s fan and cups and species within areas representing a means. (Udotea spp.), corraline algae, green broad diversity of resources and habitats Federal Project means any water feather, green grape algae (Caulerpa found within the Sanctuary. resources development project spp.) and watercress (Halimeda spp.). Sanctuary means the Florida Keys conducted by the U.S. Army Corps of Individual mollusk shells (scallops, National Marine Sanctuary. Engineers or operating under a permit or clams, oysters, etc.) are not intended to Sanctuary Preservation Area means a other authorization issued by the Corps be included in the definition as hard Sanctuary zone encompassing a of Engineers and authorized by Federal substrate. discrete, biologically important area, law. Marine Life Species means any within which uses are subject to Fish means finfish, mollusks, species of fish, invertebrate, or plant conditions, restrictions and crustaceans, and all other forms of included in sections (2), (3), or (4) of prohibitions, including public access marine animal and plant life other than Rule 46–42.001, Florida Administrative restrictions, to avoid concentrations of marine mammals, and birds. Code, set forth in Appendix VIII to this uses that could result in significant Fishing means: part. declines in species populations or (1)(i) The catching, taking, or Mineral means clay, stone, sand, habitat, to reduce conflicts between harvesting of fish; gravel, metalliferous ore, uses, to protect areas that are critical for (ii) The attempted catching, taking, or nonmetalliferous ore, or any other non- sustaining important marine species or harvesting of fish; living solid material or other non-living habitats, or to provide opportunities for (iii) Any other activity which can solid matter of commercial value. scientific research. reasonably be expected to result in the Person means any private individual, Sanctuary quality means any of those catching, taking, or harvesting of fish; or partnership, corporation, or other entity; ambient conditions, physical-chemical 16410 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules characteristics and natural processes, (3) Transfers oil or hazardous material competent jurisdiction within the the maintenance of which is essential to in a port or place subject to the Sanctuary, provided that the Assistant the ecological health of the Sanctuary, jurisdiction of the United States (46 Administrator may regulate fishing including, but not limited to, water U.S.C. 2101). activities within the Sanctuary, quality, sediment quality and air Traditional fishing means those pursuant to the procedure set forth in quality. commercial or recreational fishing Section 304(a)(5) of the NMSA, to the Sanctuary resource means any living activities that were customarily extent such Sanctuary fishing or non-living resource that contributes conducted within the Sanctuary prior to regulations are reasonably necessary to to the conservation, recreational, its designation. fulfill the purposes and policies of the ecological, historical, research, Tropical fish means any species, or NMSA and the goals and objectives of educational, or aesthetic value of the part thereof, included in section (2) of the Sanctuary designation. Sanctuary, including, but not limited to, Rule 46–42.001, Florida Administrative the seabed and substratum, bottom Code, (as set forth in Appendix VIII to § 929.5 Prohibited activities; Sanctuary- formations, hard and soft corals and this part). wide. coralline structures, algae, Vessel means a watercraft of any (a) Except as specified in paragraph phytoplankton, seagrasses, mangroves description, including, but not limited (c) of this section, the following and other marine plants, zooplankton, to, motorized and non-motorized activities are prohibited and thus are marine invertebrates, fish, marine watercraft, personal watercraft, airboats, unlawful for any person to conduct or amphibians and reptiles, marine and float planes while manuevering on cause to be conducted: mammals, sea birds, and other marine the water, capable of being used as a (1) Mineral and hydrocarbon wildlife and their habitats, and means of transportation in/on the waters exploration, development and historical resources. of the Sanctuary. For purposes of this production. Exploring for, developing, Sanctuary wildlife means any species part, the terms ‘‘vessel,’’ ‘‘watercraft,’’ or producing minerals or hydrocarbons of fauna, including avifauna, that and ‘‘boat’’ are deemed to have the same within the Sanctuary. occupy or utilize the submerged meaning. (2) Removal of, injury to, or resources of the Sanctuary as nursery Wildlife Management Area means a possession of coral or live rock. areas, feeding grounds, nesting sites, Sanctuary zone established for the (i) Moving, removing, taking, harvesting, shelter, or other habitat during any management, protection, and damaging, disturbing, breaking, cutting, portion of their life cycles. preservation of Sanctuary wildlife or otherwise injuring, or possessing Seagrass means any species of marine resources, including such a zone (regardless of where taken from) any angiosperms (flowering plants) that established for the protection and living or dead coral, or coral formation, inhabit portions of the seabed in the preservation of endangered or or attempting any of these activities, Sanctuary. Those species include, but threatened species or their habitats, except as permitted under 50 CFR Part are not limited to: Thalassia testudinum within which access is restricted or 638. (turtle grass); Syringodium filiforme otherwise regulated to minimize (ii) Harvesting, or attempting to (manatee grass); Halodule wrightii disturbances to Sanctuary wildlife; to harvest, any live rock from the (shoal grass); Halophila decipiens, H. ensure protection and preservation Sanctuary, or possessing (regardless of engelmannii, H. johnsonii; and Ruppia consistent with the Sanctuary where taken from) any live rock within maritima. designation and other applicable law the Sanctuary, except as authorized by Taking means: governing the protection and a permit for the possession or harvest (1)(i) For any marine mammal, sea preservation of wildlife resources in the from aquaculture operations in the turtle or seabird listed as either Sanctuary. Exclusive Economic Zone, issued by the endangered or threatened pursuant to (b) Other terms appearing in the National Marine Fisheries Service the Endangered Species Act, to harass, regulations in this part are defined at 15 pursuant to applicable regulations harm, pursue, hunt, shoot, wound, kill, CFR 922.2, and/or in the Marine under the appropriate Fishery trap, capture, collect or injure, or to Protection, Research, and Sanctuaries Management Plan, or as authorized by attempt to engage in any such conduct; Act (MPRSA), as amended, 33 U.S.C. the applicable state authority of (ii) For any other marine mammal, sea 1401 et seq. and 16 U.S.C. 1431 et seq. competent jurisdiction within the turtle or seabird, to harass, hunt, Sanctuary for live rock cultured on state capture, kill, collect or injure, or to § 929.4 Allowed activities. submerged lands leased from the State attempt to engage in any such conduct. (a) All activities, except those of Florida, pursuant to applicable state (2) For the purpose of both paragraphs prohibited pursuant to § 929.5 or law. See section 370.027, Florida (1)(i) and (ii) of this definition, the term § 929.6, may be conducted subject to all Statutes and implementing regulations. includes, but is not limited to, collecting applicable access and use restrictions (3) Alteration of, or construction on, any dead or injured marine mammal, imposed within sanctuary zones the seabed. Drilling into, dredging, or sea turtle or seabird, or any part thereof, pursuant to § 929.6, subject to the otherwise altering the seabed of the no matter how temporarily; tagging any provisions of § 929.12, subject to all Sanctuary, or engaging in prop- sea turtle, marine mammal or seabird; prohibitions, restrictions, and dredging; or constructing, placing or operating a vessel or aircraft or doing conditions validly imposed by any other abandoning any structure, material, or any other act that results in the Federal, State or local authority of other matter on the seabed of the disturbing or molesting of any marine competent jurisdiction, subject to any Sanctuary, except as an incidental result mammal, sea turtle or seabird. emergency regulations promulgated of: Tank vessel means any vessel that is pursuant to § 929.7, and subject to the (i) Anchoring vessels in a manner not constructed or adapted to carry, or that liability established by Section 312 of otherwise prohibited by this part (see carries, oil or hazardous material in bulk the NMSA (see § 929.9). paragraph (a)(3)(iii) of this section and as cargo or cargo residue, and that— (b) Fishing activities may be § 929.6(d)(1)(iv)); (1) Is a United States flag vessel; conducted subject to all applicable (ii) Traditional fishing activities (2) Operates on the navigable waters regulations imposed by Federal and outside Replenishment Reserves or of the United States; or State fishery management authorities of Sanctuary Preservation Areas; Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16411 (iii) Installation and maintenance of (ii) Operating a vessel in such a seizure or disposition of seized property navigational aids by, or pursuant to manner as to strike or otherwise injure in connection with enforcement of the valid authorization by, any Federal, coral, seagrass, or any other immobile Acts or any regulation or permit issued State, or local authority of competent organism attached to the seabed, under the Acts. jurisdiction; including, but not limited to, operating (b) Marine Life rule. No person shall (iv) Harbor maintenance in areas a vessel in such a manner as to cause harvest, possess, or land any marine life necessarily associated with Federal prop-scarring. species, or part thereof, within the Projects in existence on the effective (iii) Anchoring a vessel on coral, in Sanctuary, except in accordance with date of Sanctuary designation, including depths less than 50 feet. rules 46–42.001 through 46–42.003, 46– maintenance dredging of entrance (iv) Operating a vessel at a speed 42.0035, and 46–42.005 through 46– channels and repair, replacement, or greater than idle/no-wake speed within 42.007 of the Florida Administrative rehabilitation of breakwaters or jetties; a residential canal, within 100 yards of Code, (set forth in Appendix VIII to this (v) Construction, repair, replacement, the red and white ‘‘divers down’’ flag part), and such rules shall apply mutatis or rehabilitation of docks, seawalls, (or the blue and white ‘‘alpha’’ flag in mutandis (with necessary editorial breakwaters, or piers authorized by any Federal waters), or within 200 yards of: changes) to all federal and state waters valid lease, permit, license, approval, or (A) Residential shorelines; within the Sanctuary. other authorization issued by any (B) Mangrove fringed islands; (c) Notwithstanding the prohibitions Federal, State, or local authority of (C) Stationary vessels; or in this § 929.5 and § 929.6, and any competent jurisdiction. (D) Signs indicating emergent or access and use restrictions imposed (4) Discharging or depositing shallow reefs. pursuant thereto, a person may conduct (v) Operating a vessel in such a materials or other matter. (i) an activity specifically authorized by, manner as to injure or cause disturbance Discharging or depositing, from within and conducted in accordance with the to wading or nesting birds or marine the boundary of the Sanctuary, any scope, purpose, terms, and conditions mammals. material or other matter, except: of, a National Marine Sanctuary permit (vi) The prohibitions contained in this issued pursuant to § 929.10, or a (A) Fish, fish parts, fish chum or bait paragraph shall not apply to law National Marine Sanctuary Historical that is produced, or used, and discarded enforcement officials while in the Resources permit issued pursuant to while conducting a traditional fishing performance of enforcement duties. § 929.11. activity in the Sanctuary; (6) Diving without flag. Diving or (d) Notwithstanding the prohibitions (B) Biodegradable effluent incidental snorkeling without flying in a in this § 929.5 and § 929.6, and any to vessel use and generated by a marine conspicious manner the red and white access and use restrictions imposed sanitation device approved in ‘‘divers down’’ flag (or the blue and pursuant thereto, a person may conduct accordance with Section 312 of the white ‘‘alpha’’ flag in Federal waters). an activity specifically authorized by a Federal Water Pollution Control Act, as (7) Release of exotic species. valid lease, permit, license, approval, or amended, (FWPCA), 33 U.S.C. 1322 et Introducing or releasing an exotic other authorization in existence on the seq.; species of plant, invertebrate, fish, effective date of Sanctuary designation (C) Water generated by routine vessel amphibian, or reptile into the and issued by any Federal, State, or operations (e.g., deck wash down and Sanctuary. local authority of competent graywater as defined by section 312 of (8) Tampering with markers. Marking, jurisdiction, or by any valid right of the FWPCA), excluding oily wastes from defacing, or damaging in any way or subsistence use or access in existence bilge pumping; or displacing, removing, or tampering with on the effective date of Sanctuary (D) Cooling water from vessels or any signs, notices, or placards, whether designation, provided that the holder of engine exhaust. temporary or permanent, or with any such authorization or right complies (ii) Discharging or depositing, from navigational aids, monuments, stakes, with § 929.14 and with any terms and beyond the boundary of the Sanctuary, posts, mooring buoys, boundary buoys, conditions on the exercise of such any material or other matter that trap buoys, or scientific equipment. authorization or right imposed by the subsequently enters the Sanctuary and (9) Removing or injuring Sanctuary Director or designee as a condition of injures a Sanctuary resource or quality, historical resources. Moving, removing, certification as he or she deems except those listed in paragraphs injuring, or possessing, or attempting to reasonably necessary to achieve the (a)(4)(i)(A) through (D) of this section. move, remove, injure, or possess, a purposes for which the Sanctuary was (iii) Notwithstanding the exceptions Sanctuary historical resource. designated. contained in paragraphs (a)(4)(i)(A) (10) Taking or possessing protected (e) Notwithstanding the prohibitions through (D) of this section, discharging wildlife. Taking any marine mammal, in this § 929.5 and § 929.6, and any or depositing any material or other sea turtle, or seabird in or above the access and use restrictions imposed matter, except cooling water or engine Sanctuary, except as authorized by the pursuant thereto, a person may conduct exhaust into the waters of any Wildlife Marine Mammal Protection Act, as an activity specifically authorized by Management Area, Replenishment amended, (MMPA), 16 U.S.C. 1361 et any valid lease, permit, license, Reserve, Sanctuary Preservation Area, or seq., the Endangered Species Act, as approval, or other authorization issued Special Use Area. amended, (ESA), 16 U.S.C. 1531 et seq., after the effective date of Sanctuary (5) Operation of vessels. (i) Operating and the Migratory Bird Treaty Act, as designation and issued by any Federal, a tank vessel or a vessel greater than 50 amended, (MBTA), 16 U.S.C. 703 et seq. State, or local authority of competent meters in registered length in an area to (11) Possession or use of explosives or jurisdiction, provided that the applicant be avoided. The prohibition in this electrical charges. Possessing, or using complies with § 929.15, the Director or subparagraph shall not apply to explosives, except powerheads, or designee notifies the applicant and necessary operations of public vessels, releasing electrical charges within the authorizing agency that he or she does defined as operations essential for Sanctuary. not object to issuance of the national defense, law enforcement, or (12) Interfering with law enforcement. authorization, and the applicant responses to emergencies that threaten Interfering with, obstructing, delaying or complies with any terms and conditions life, property, or the environment. preventing an investigation, search, the Director or designee deems 16412 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules reasonably necessary to protect other civil works projects conducted by (2) Great White Heron and Key West Sanctuary resources and qualities. the U.S. Army Corps of Engineers are National Wildlife Refuge Management Amendments, renewals and extensions excluded from the scope of this Areas. Within the Great White Heron of authorizations in existence on the paragraph (g)(1). and Key West National Wildlife Refuge effective date of designation constitute (2) In the event of threatened or actual Management Areas (The Great White authorizations issued after the effective destruction of, loss of, or injury to a Heron and Key West National Wildlife date. Sanctuary resource or quality resulting Refuges as described in Appendix II to (f) Notwithstanding paragraph (c) of from an untoward incident, including this part), operating a personal this section and § 929.15(a), in no event but not limited to spills and groundings watercraft (PWC), operating an airboat, may the Director or designee issue a caused by the Department of Defense, or water skiing, except within the permit under §§ 929.10, 929.11 or the cognizant component shall promptly following areas: 929.12, or under Section 310 of the coordinate with the Director or designee Township 66 South, Range 29 East, Sections NMSA, authorizing, or otherwise for the purpose of taking appropriate 5, 11, 12 and 14; approving, the exploration for, leasing, actions to prevent, respond to or Township 66 South, Range 28 East, Section development, or production of minerals mitigate the harm and, if possible, 2; or hydrocarbons within the Sanctuary, restore or replace the Sanctuary Township 67 South, Range 26 East, Sections the disposal of dredged material within resource or quality. 16 and 20 all Tallahassee Meridian, is the Sanctuary, or the discharge of prohibited. untreated or primary treated sewage § 929.6 Additional activity regulations by (c) Wildlife Management Areas. (1) (except by a certification, pursuant to Sanctuary zone. Persons conducting activities within the § 929.14, of a valid authorization in (a) In addition to the prohibitions set Wildlife Management Areas described existence on the effective date of forth in § 929.5, which apply throughout in Appendix III to this part shall comply Sanctuary designation), and any the Sanctuary, the following with the regulations governing access to, purported authorizations issued by requirements in this § 929.6 apply with and use of, such areas, also set forth in other authorities after the effective date respect to activities conducted within Appendix III to this part. The following of Sanctuary designation for any of the Sanctuary zones described in this activities are prohibited: these activities within the Sanctuary § 929.6 and in Appendices II through V (i) Operating a vessel in a wildlife shall be invalid. to this part. Activities conducted in management area designated as an (g)(1) All military activities shall be those areas of the Sanctuary that are ‘‘idle/no-wake speed’’ zone, in carried out in a manner that avoids to located within two or more overlapping accordance with paragraph (c)(2) of this the maximum extent practical any Sanctuary zones shall be concurrently section, at a speed greater than idle/no- adverse impacts on Sanctuary resources subject to the regulations applicable to wake speed as defined in § 929.3. and qualities. Military activities are each such overlapping zone. (ii) Operating a vessel in a Wildlife activities conducted by the Department (b) Existing Management Areas.—(1) Management Area designated as a ‘‘no of Defense with or without participation Key Largo and Looe Key Management motor’’ zone, in accordance with by foreign forces. The prohibitions in Areas. The following activities are paragraph (c)(2) of this section, using a paragraphs (a) and (b) of this section prohibited within the Key Largo and boat motor powered by combustible and § 929.6 do not apply to existing Looe Key Management Areas (the fuel, except that vessels with such classes of military activities, which were former Key Largo and Looe Key motors are permitted access to ‘‘no conducted prior to the effective date of National Marine Sanctuaries as motor’’ zones only through the use of a the regulations in this part, as identified described in Appendix II to this part): push pole, paddle, electric motor or in the Environmental Impact Statement (i) Removing, taking, damaging, similar means of operation not and Management Plan for the Florida harmfully disturbing, breaking, cutting, involving the use of a gasoline or diesel Keys National Marine Sanctuary. New spearing or similarly injuring any coral powered boat motor. military activities in the Sanctuary are or other marine invertebrate, or any (iii) Operating a vessel, by any means allowed and may be exempted from the plant, soil, rock, or other material, whatsoever, in a wildlife management prohibitions in paragraphs (a) and (b) of except commercial taking of spiny area designated as a ‘‘no access buffer this section and § 929.6 by the Director lobster and stone crab by trap and zone’’, in accordance with paragraph or designee after consultation between recreational taking of spiny lobster by (c)(2) of this section. the Director or designee and the hand which is consistent with both the (2) Access and use restrictions Department of Defense pursuant to applicable regulations under the applicable to the Wildlife Management section 304(d) of the NMSA. When a appropriate Fishery Management Plan Areas listed in Appendix III to this part military activity is modified such that it and the regulations in this part is may include the designation of any such is likely to destroy, cause the loss of, or allowed. zone as an ‘‘idle/no-wake speed’’, a ‘‘no injure a Sanctuary resource in a manner (ii) Taking or collecting any tropical motor’’ or a ‘‘no access buffer’’ area. The significantly greater than was fish. Director or designee, in cooperation considered in a previous consultation (iii) Using wire fish traps, bottom with other Federal, State, or local under section 304(d) of the NMSA, or trawls, dredges, fish sleds, or similar resource management authorities, as any Sanctuary resource or quality not vessel-towed or anchored bottom fishing appropriate, shall effect such previously considered in a previous gear or nets. designation by posting official signs consultation under section 304(d) of the (iv) Using, carrying or possessing, conspicuously, using mounting posts, NMSA, the activity will be treated as a except while passing without buoys, or other means according to new activity under this paragraph. If it interruption through the zones or for location and purpose, at appropriate is determined that an activity may be law enforcement purposes, the intervals and locations. Official signs carried out, such activity shall be following: Pole spears, air rifles, bows posted pursuant to this paragraph shall carried out in a manner that avoids to and arrows, slings, Hawaiian slings, display the official logo of the the maximum extent practical any rubber powered arbaletes, pneumatic Sanctuary. Each such sign shall clearly adverse impact on Sanctuary resources and spring loaded guns or similar delineate such zone as an ‘‘idle/no-wake and qualities. Civil engineering and devices known as spearguns. speed’’, a ‘‘no motor’’ or a ‘‘no access Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16413 buffer’’ zone, and shall allow instant, (iv) Placing any anchor in a way that (iv) The Director or designee will long-range recognition by boaters. allows the anchor or any portion of the provide public notice of the limited (3) The Director or designee shall anchor apparatus (including the anchor, access designation or temporary area coordinate with other Federal, State, or chain or rope) to touch living or dead closure through publishing notice in the local resource management authorities, coral, or any sessile organism. When Federal Register, and such other means as appropriate, in the establishment, anchoring dive boats, the first diver as the Director or designee may deem management, and enforcement of down shall inspect the anchor to ensure appropriate. With respect to a temporary Wildlife Management Areas. that it is not touching living or dead area closure, the Director or designee (4) The Director or designee may coral, and will not shift in such a way will specify the period of such closure. modify the number, location, or access as to touch such coral or other sessile (e) Special Use Areas. (1) The Director and use restrictions applicable to organisms. No further diving is or designee may set aside discrete areas Wildlife Management Areas if the permitted until the anchor is placed in of the Sanctuary as Special Use Areas, Director or designee finds that such accordance with these requirements. and, by designation pursuant to this action is reasonably necessary to (2) Vessels shall use mooring buoys or paragraph (e), impose the use minimize disturbances to Sanctuary anchoring areas when such facilities or restrictions specified in paragraph (e)(3) wildlife, or to ensure protection and areas have been designated and are of this section. Special Use Areas are preservation of Sanctuary wildlife available. described in Appendix VI to this part, consistent with the purposes of the (3) Notwithstanding paragraph (d)(1) in accordance with the following Sanctuary designation and other of this section, the following activities designations and corresponding applicable law governing the protection are allowed within the Key Largo objectives: and preservation of wildlife resources in Replenishment Reserve described in (i) ‘‘Recovery areas’’ to provide for the the Sanctuary. The Director or designee Appendix IV to this part: recovery of Sanctuary resources from will effect such modification by: (i) catch and release fishing from the degradation or other injury attributable (i) Publishing in the Federal Register, shore to a depth of 12 feet; and to human uses; after notice and a request for public (ii) harvest of spiny lobster by trap (ii) ‘‘Restoration areas’’ to provide for comments in accordance with the from sand or seagrass bottom habitats. restoration of degraded or otherwise Administrative Procedure Act, an (4) The Director or designee may injured Sanctuary resources; (iii) ‘‘Research only areas’’ to provide amendment to the list of such areas set impose a limited access designation, or for scientific research or education forth in Appendix III to this part, and a temporary area closure, within any relating to protection and management; notice regarding the time and place Sanctuary Preservation Area if the and where maps depicting the precise Director determines that such action is (iv) ‘‘Facilitated use areas’’ to provide locations of such areas will be made reasonably necessary to allow for for the prevention of use or user available for public inspection; and recovery of the living resources of such conflicts or the facilitation of access and (ii) Posting official signs designating area from the adverse, cumulative use, or to promote public use and such areas in accordance with effects of concentrated use: understanding, of Sanctuary resources paragraph (c)(2) of this section. (i) Except for passage without through the issuance of Special Use (d) Sanctuary Preservation Areas and interruption through the area, for law permits pursuant to § 929.12. Replenishment Reserves. (1) In addition enforcement or for monitoring pursuant (2) The total restricted area shall not to the prohibitions set forth in § 929.5, to paragraph (d)(4)(iii) of this section, no exceed a size the Director or designee and the regulations applicable to any person shall: deems reasonably necessary to overlapping zones set forth in this (A) Enter a Sanctuary Preservation accomplish these objectives. section, the following activities are Area subject to a limited access (3) Persons conducting activities prohibited within the Replenishment designation, except by the use of such within any Special Use Area shall Reserves described in Appendix IV to mooring buoys or anchoring areas as are comply with the access and use this part, and within the Sanctuary designated and available for use within restriction specified in this paragraph Preservation Areas, described in such area at the time of the entry; or and made applicable to such an area by Appendix V to this part: (B) Enter a Sanctuary Preservation means of its designation as a ‘‘recovery (i) Possessing (regardless of where Area subject to a temporary area closure, area’’, ‘‘restoration area’’, ‘‘research only taken from), moving, harvesting, during the pendancy of the area closure. area’’ or ‘‘facilitated use area.’’ Except removing, taking, damaging, disturbing, (ii) In adopting any limited access for passage without interruption breaking, cutting, spearing, or otherwise designation or temporary area closure through the area and for law injuring any coral, marine invertebrate, pursuant to this paragraph (d)(4), the enforcement, no person may enter into fish, bottom formation, algae, seagrass or Director or designee will determine, on a Special Use Area except to conduct or other living or dead organism, including the basis of the best available data, cause to be conducted the following shells, or attempting any of these information and studies, that: uses and activities: activities. (A) A concentration of use appears to (i) Habitat manipulation related to (ii) Fishing by any means. However, be causing or contributing to significant restoration of degraded or otherwise possession of gear capable of harvesting degradation of the living resources of injured Sanctuary resources, or fish aboard a vessel, provided such gear the area; activities reasonably necessary to is stowed away prior to entering and (B) The access restriction or monitor recovery of degraded or during transit through the zone, shall temporary area closure to be imposed is otherwise injured Sanctuary resources not be deemed a violation of this reasonably necessary to allow recovery within such an area designated as either prohibition, and no presumption of of the living resources of the area. a ‘‘recovery area’’ or a ‘‘restoration fishing activity shall be drawn (iii) The Director or designee will area’’; therefrom. provide for continuous monitoring of (ii) Scientific research or educational (iii) Touching living or dead coral, the area during the pendancy of the use specifically authorized by and including but not limited to, standing limited access designation or temporary conducted in accordance with the on a living or dead coral formation. area closure. scope, purpose, terms and conditions of 16414 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules a valid Sanctuary permit issued § 929.8 Penalties. Reserves or Sanctuary Preservation pursuant to § 929.10 or § 929.11 within (a) Each violation of the NMSA or Areas, the Director or designee shall such an area designated as a ‘‘research FKNMSPA, any regulation in this part, further find that such activities will only area’’; or or any permit issued pursuant thereto, further and are consistent with the (iii) Uses and activities specified by is subject to a civil penalty of not more purposes for which such zone was the Director or designee or specifically than $100,000. Each such violation shall established. authorized by and conducted in be subject to forfeiture of property or (c) In deciding whether to issue a accordance with the scope, purpose, Sanctuary resources seized in permit, the Director or designee may terms, and conditions of a valid special accordance with section 307 of the consider: use permit issued pursuant to § 929.12 NMSA. Each day of a continuing (1) The professional qualifications within such an area designated as a violation constitutes a separate and financial ability of the applicant as ‘‘facilitated use area.’’ violation. related to the proposed activity; (b) Regulations setting forth the (2) The duration of the activity and (4) (i) The Director or designee may procedures governing administrative modify the number, location or the duration of its effects; proceedings for assessment of civil (3) The appropriateness of the designation applicable to Special Use penalties, permit sanctions and denials Zones by publishing in the Federal methods and procedures proposed by for enforcement reasons, issuance and the applicant for the conduct of the Register, after notice and a request for use of written warnings, and release or public comments in accordance with activity; forfeiture of seized property appear at (4) The extent to which the conduct the Administrative Procedure Act, an 15 CFR Part 904. amendment to Appendix VI to this part, of the activity may diminish or enhance except that, with respect to such zones § 929.9 Response costs and damages. Sanctuary resources and qualities; designated as ‘‘recovery areas’’, Under Section 312 of the NMSA, any (5) Any indirect, secondary or ‘‘restoration areas,’’ or ‘‘research only person who destroys, causes the loss of, cumulative effects of the activity; areas,’’ the Director or designee may or injures any Sanctuary resource is (6) The end value of the activity; and modify the number, location or liable to the United States for response (7) Such other factors as he or she designation of such zones by publishing costs, damages, and interest resulting deems appropriate depending on the a notice of such action in the Federal from such destruction, loss, or injury, type of activity proposed in the Register if the Director determines that and any vessel used to destroy, cause application. immediate action is reasonably the loss of, or injure any Sanctuary (d) Applications for permits should be necessary to: resource is liable in rem to the United addressed to the Director, Office of Ocean and Coastal Resource (A) Prevent significant injury to States for response costs, damages, and Management; ATTN: Sanctuary Sanctuary resources where interest resulting from such destruction, Superintendent, Florida Keys National circumstances create an imminent risk loss, or injury. Marine Sanctuary, P.O. Box 500368, to such resources; § 929.10 National Marine Sanctuary Marathon, FL 33050. All applications (B) Initiate restoration activity where Permits; application procedures and must include: issuance criteria. a delay in time would significantly (1) A detailed description of the impair the ability of such restoration (a) A person may conduct an activity proposed activity including a timetable activity to succeed; prohibited by § 929.5 or § 929.6 if such for completion of the activity and the (C) Initiate research activity where an activity is specifically authorized by, equipment, personnel and methodology unforseen natural event produces an and provided such activity is conducted to be employed; opportunity for scientific research that in accordance with the scope, purpose, (2) The qualifications and experience may be lost if research is not initiated terms and conditions of, a permit issued of all personnel; immediately. under this § 929.10 or an Historical (3) The potential effects of the (ii) If the Director or designee Resources permit issued under § 929.11. activity, if any, on Sanctuary resources (b)(1) The Director or designee, at his determines that a notice of modification and qualities; and or her discretion, may issue a permit, in must be promulgated immediately in (4) The benefit to be derived from the accordance with this section, and accordance with paragraph (e)(4)(i) of activity. Copies of all other required subject to such terms and conditions as this section, the Director or designee licenses, permits, approvals, or other he or she deems appropriate, to conduct authorizations must be attached to the will, as part of the same notice, invite an activity prohibited by § 929.5 or public comment and specify that § 929.6 if the Director or designee finds application. comments will be received for 15 days that the activity will have only (e) Upon receipt of an application, the after the effective date of the notice. As negligible short-term adverse effects on Director or designee may request such soon as practicable after the end of the Sanctuary resources and qualities and additional information from the comment period, the Director will either will: applicant as he or she deems reasonably rescind, modify or allow the (i) Further research or monitoring necessary to act on the application and modification to remain unchanged related to Sanctuary resources and may seek the views of any persons. The through notice in the Federal Register. qualities; Director or designee may require a site visit as part of the permit evaluation. § 929.7 Emergency regulations. (ii) Further the educational, natural or historical resource value of the Unless otherwise specified, the Where necessary to prevent or Sanctuary; information requested must be received minimize the destruction of, loss of, or (iii) Further salvage or recovery by the Director or designee within 30 injury to a Sanctuary resource or operations in or near the Sanctuary in days of the postmark date of the request. quality, or minimize the imminent risk connection with a recent air or marine Failure to provide such additional of such destruction, loss, or injury, any casualty; or information on a timely basis may be and all activities are subject to (iv) Assist in managing the Sanctuary. deemed by the Director or designee to immediate temporary regulation, (2) For activities proposed to be constitute abandonment or withdrawal including prohibition. conducted within Replenishment of the permit application. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16415 (f) A permit issued pursuant to this issued pursuant to this § 929.10, This incorporation by reference was § 929.10 or § 929.11 is nontransferable. § 929.11, § 929.12, or Section 310 of the approved by the Director of the Federal (g) The Director or designee may NMSA may be subject to such specific Register in accordance with 5 U.S.C. amend, suspend, or revoke a permit for terms and conditions, including 552(a) and 1 CFR part 51. The SCR good cause. The Director or designee conditions governing access to, or use Agreement is reproduced as an may deny a permit application, in of, Sanctuary resources, as the Director appendix to the ‘‘Regulatory Action whole or in part, if it is determined that or designee deems reasonably necessary Plan’’ set forth in Volume 1 of the [draft] the permittee or applicant has acted in or appropriate and in furtherance of the Florida Keys National Marine Sanctuary violation of the terms or conditions of purposes for which the Sanctuary is Management Plan, dated March 1995. a previous permit, of the regulations in designated. Such conditions may Copies of the SCR Agreement may be this part, of the NMSA or FKNMSA, or include, without limitation, a condition inspected at, and obtained from, the for other good cause. Any such action that: Sanctuaries and Reserves Division, shall be communicated in writing to the (1) Any data or information obtained Office of Ocean and Coastal Resource permittee or applicant by certified mail under the permit shall be made Management, National Ocean Service, and shall set forth the reason(s) for the available to the public; National Oceanic and Atmospheric action taken. Procedures governing (2) A NOAA official shall be allowed Administration, 1305 East-West permit sanctions and denials for to observe any activity conducted under Highway, 12th floor, Silver Spring, MD enforcement reasons are set forth in 15 the permit; 20910 or from the Florida Keys National CFR Part 904, subpart D. (3) The permittee shall submit one or Marine Sanctuary Office, P.O. Box (h) Any permit issued pursuant to this more reports on the status, progress, or 500368, Marathon, FL 33050. The SCR § 929.10, § 929.11, § 929.12, or Section results of any activity authorized by the Agreement is also available for 310 of the NMSA shall be subject to the permit; inspection at the Office of the Federal following general conditions: (4) The permittee shall submit an Register, 800 North Capitol Street, NW., (1) All permitted activities shall be annual report to the Director or designee suite 700, Washington, DC. 1 conducted in a manner that does not not later than December 31 of each year (b) Applications for research/recovery destroy, cause the loss of, or injure on activities conducted pursuant to the and research/recovery/transfer permits Sanctuary resources, except that a permit. The report shall describe all shall follow the procedures listed in permit issued under this § 929.10 or activities conducted under the permit § 929.10 (d) through (g). § 929.11 may authorize negligible short- and all revenues derived from such (c) Any permit issued pursuant to this term adverse effects on Sanctuary activities during the term of the permit; § 929.11 shall be subject to the general resources and qualities. and/or conditions listed in § 929.10(h) (1) (2) The permittee shall agree to hold (5) The permittee shall purchase and through (4), and any special conditions the United States harmless against any maintain general liability insurance that may be imposed by the Director or and all claims arising out of the conduct against any and all claims arising out of designee in accordance with § 929.10(i). of the permitted activities. the permitted activities. A copy of the In addition, the following general (3) The permit shall be issued for a insurance policy shall be submitted to conditions shall apply to all research/ period not exceeding five years. the Director or designee. recovery and research/recovery/transfer However, the permittee may request (j) The applicant for or holder of a permits: permit renewal or a different permit National Marine Sanctuary or a National (1) The permittee shall post a pursuant to the same procedure as Marine Sanctuary Historical Resources performance bond commensurate with provided by this § 929.10. Upon the permit may appeal the denial, the scope of work to cover costs permittee’s request for renewal, the conditioning, amendment, suspension associated with the recovery. The bond Director or designee shall: review all or revocation of the permit in shall be released only after the project annual reports submitted by the accordance with the procedures set is completed according to the agreed- permittee pursuant to paragraph (h)(4) forth in § 929.16. upon terms, the artifacts are conserved, of this section. In order to renew the and a final report is delivered and permit, the Director or designee must § 929.11 National Marine Sanctuary approved by Director or designee in find that the activity will continue to Historical Resources Permits; exploration, research/recovery, research/recovery/ accordance with the SCR Agreement; further the purposes for which the and Sanctuary was designated in accordance transfer; application procedures and issuance criteria. (2) The permittee, at his or her own with the criteria applicable to the initial expense, shall provide secure storage of (a) The Director or designee, at his or issuance of the permit; ascertain the the artifacts recovered pursuant to her discretion, may issue a research/ permittee has at no time violated the research/recovery or research/recovery/ exploration, research/recovery, or permit, or these regulations; and transfer permit, and the permittee shall research/recovery/transfer permit, in ascertain the permittee has not obtain insurance for the artifacts accordance with this § 929.11, and destroyed, caused the loss of, or injured equivalent to the fair market value as subject to such terms and conditions as Sanctuary resources while conducting determined by a qualified objective he or she deems appropriate, to conduct the permitted activities, except for any assessor. Such assessor shall be an activity specified under this § 929.11 negligible short-term adverse effects on identified or approved by the Director or and prohibited by §§ 929.5 or 929.6. Sanctuary resources and qualities designee. authorized by the permit pursuant to Activities conducted pursuant to a (d) Survey and Inventory Permits. (1) paragraph (h)(1) of this section. permit issued under this § 929.11 shall The Director or designee may issue a (4) The permit or a copy thereof shall be consistent and conform with the survey and inventory permit to conduct be displayed on board all vessels or [proposed] Procedures for Submerged non-intrusive survey activities that will aircraft used in the conduct of the Cultural Resources Agreement Among not include excavation, removal, or permitted activity. NOAA, The Advisory Council on (i) In addition to the general Historic Preservation, and the State of 1 The incorporation by reference will be conditions listed in paragraphs (h)(1) Florida on Submerged Cultural submitted to the Office of the Federal Register for through (4) of this section, any permit Resources (hereinafter SCR Agreement). approval. 16416 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules recovery of historical resources, nor derived from the project will be stored (i) Number of personnel; result in destruction of, loss of, or injury in a repository to be named in the (ii) Personnel hours; to Sanctuary resources. permit. (iii) Equipment; (2) Survey and inventory reports and (f) Research/Recovery/Transfer (iv) Biological assessments; daily logs must be prepared describing Permits. (1) Agreements for the curation (v) Copying; and the activities conducted pursuant and and display of recovered historical (vi) Overhead directly related to results obtained from the activities resources may provide for the release of reviewing and processing the permit authorized in the exploration permit. public artifacts for private sale transfer application; Copies of the report and daily logs and if such sale transfer is consistent with (2) All costs incurred, or expected to any other data derived from the survey preservation, research, education, or be incurred, by the Director or designee shall be delivered in a timely manner other purposes of the designation and as a direct result of the conduct of the pursuant to a deadline proscribed in the management of the Sanctuary. Sale activity for which the special use permit permit and will be stored in a repository distribution of historical resources shall was issued, including, but not limited to be named in the permit. be executed pursuant to the SCR to: (e) Research/Recovery Permits. (1) Agreement. (i) The cost of monitoring the conduct Recovery of historical resources will (2) All research/recovery/transfer both during and after the activity is only be permitted when developed in permits shall be subject to the completed in order to assess the impacts conjunction with research to preserve requirements in paragraph (e) of this to Sanctuary resources; the historic information for public use. section. (ii) The use of an official NOAA Intrusive research and/or recovery will (3) All research/recovery/transfer observer, including travel and expenses be permitted based upon a balancing of permits shall be subject to the and personnel hours; and factors and criteria to determine requirements for special use permits (iii) Overhead costs directly related to whether the goals of preservation, listed in § 929.12 (c) through (f). the permitted activity; and research, education, and public access (3) An amount which represents the are better served by permitting this type § 929.12 Special Use Permits. fair market value of the use of the of activity as opposed to leaving the (a)(1) The Director or designee may Sanctuary resource and a reasonable historic resource in place. require a special use permit in order to return to the United States Government. (2) For sites where no prior federally conduct a concession-type, commercial (f) Special-use permits may not be adjudicated claim exists, and for activity within the Sanctuary if the transferred, sold, or assigned except federally adjudicated admiralty claim Director or designee determines such with the written approval of the Director sites within the Sanctuary, the following authorization is reasonably necessary: or designee. The permittee shall provide minimum requirements apply as general (i) To establish conditions of access to the Director or designee with written permit conditions and may be subject to and use of any Sanctuary resource; or notice of any such transfer, sale, or separate approval, as specified by the (ii) To promote public use and assignment no less than 30 days prior to Director or designee: understanding of any Sanctuary its proposed consummation. Transfers, (i) The applicant must have secured resource. sales, or assignments consummated in Federal, State, and local permits from (2) No permit may be issued unless violation of this requirement shall be all agencies with jurisdiction over the the activity is compatible with the considered a material breach of the proposed activities; purposes for which the Sanctuary was special-use permit, and the permit shall (ii) A professional archaeologist must designated and can be conducted in a be considered void as of the be in charge of planning, conducting, manner that does not destroy, cause the consummation of any such transfer, and supervising field operations, loss of, or injure any Sanctuary sale, or assignment. analysis; resource. (g) Nothing in this § 929.12 shall be (iii) A conservation laboratory must (b) Applications for such permits considered to require a person to obtain be in place before field operations are shall follow the procedures listed in a permit under this § 929.12 for the begun, and a professional nautical § 929.10(d) through (g). conduct of any fishing activities within conservator must be in charge of (c) Any special use permit issued the Sanctuary. planning, conducting, and supervising pursuant to this § 929.12 shall be subject the conservation of any artifacts and to the general conditions listed in § 929.13 Sanctuary registry; research notice. other materials recovered; § 929.10(h)(1) through (4), and any (iv) A curation agreement with a special conditions that may be imposed Any person conducting research in museum or facility for curation, display, by the Director or designee in the Sanctuary, including such research and maintenance of the recovered accordance with § 929.10(i). not involving activities prohibited by historical resources must be in place (d) The Director or designee may §§ 929.5 or 929.6, may voluntarily before field operations have begun; assess and collect fees for the conduct register with the appropriate Sanctuary (v) The site’s archaeological of any activity authorized by a special field office. Such registration should information must be fully documented, use permit issued pursuant to this include the type of research being including measured drawings, site maps § 929.12. No special use permit shall be conducted, location of research area, drawn to professional standards, and a effective until all assessed fees are paid, and name, addressee, and contact photographic record; unless otherwise provided by the telephone numbers of the principal (vi) Final reports must be prepared Director or designee by a fee schedule investigator or research expedition describing research design, set forth as a permit condition. leader. Upon registration, the Sanctuary methodology, laboratory analyses, (e) In assessing a fee under paragraph office will issue a research flag to be findings, and other items. These reports (f) of this section, the Director or used while conducting research within shall be delivered in a timely manner designee shall include: the Sanctuary. The flag must be pursuant to a deadline proscribed in the (1) All costs incurred, or expected to returned upon completion of all permit; be incurred, in reviewing and research activities. Copies of research (vii) Copies of all reports, site maps, processing the permit application, results, abstracts, and reports may be field notes, and other data and records including costs for: submitted to the Sanctuary field office Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16417 to be retained for Sanctuary Director, Office of Ocean and Coastal (1) The applicant notifies the Director management purposes, public Resource Management; ATTN: or designee, in writing, of the observation, and peer review. Sanctuaries and Reserves Division, application for such authorization (and Office of Ocean and Coastal Resource of any application for an amendment, § 929.14 Certification of pre-existing Management, National Ocean Service, renewal, or extension of such leases, licenses, permits, approvals, other authorizations, or rights to conduct a National Oceanic and Atmospheric authorization) within fifteen (15) days of prohibited activity. Administration, 1305 East-West the date of filing of the application or of Highway, Silver Spring, Maryland the effective date of the regulations in (a) A person may conduct an activity 20910. A copy of the lease, permit, this part, whichever is later; prohibited by §§ 929.5 or § 929.6 if such license, approval, or other authorization (2) The applicant complies with the activity is specifically authorized by a must accompany the request. other provisions of this § 929.15; valid lease, permit, license, approval, or (e) The Director or designee may (3) The Director or designee notifies other authorization in existence on the the applicant and authorizing agency effective date of Sanctuary designation request additional information from the certification requester as he or she that he or she does not object to and issued by any Federal, State, or issuance of the authorization (or local authority of competent deems reasonably necessary to condition appropriately the exercise of amendment, renewal, or extension); and jurisdiction, or by any valid right of (4) The applicant complies with any the certified authorization or right to subsistence use or access in existence terms and conditions the Director or achieve the purposes for which the on the effective date of Sanctuary designee deems reasonably necessary to Sanctuary was designated. The designation, provided that: protect Sanctuary resources and information requested must be received (1) The holder of such authorization qualities. or right notifies the Director or designee, by the Director or designee within 45 (b) Any potential applicant for a lease, in writing, within 90 days of the days of the postmark date of the request. permit, license, approval, or other effective date of the regulations in this The Director or designee may seek the authorization from any Federal, State, or part, of the existence of such views of any persons on the certification local authority (or for an amendment, authorization or right and requests request. renewal, or extension of such certification of such authorization or (f) The Director or designee may authorization) may request the Director right; amend any certification made under this or designee to issue a finding as to (2) The holder complies with the § 929.14 whenever additional whether the activity for which an other provisions of this § 929.14; and information becomes available justifying application is intended to be made is (3) The holder complies with any such an amendment. prohibited by §§ 929.5 or 929.6. terms and conditions on the exercise of (g) The Director or designee shall (c) Notification of filings of such authorization or right imposed as communicate any decision on a applications should be addressed to the a condition of certification, by the certification request or any action taken Director, Office of Ocean and Coastal Director or designee, to achieve the with respect to any certification made Resource Management; ATTN: purposes for which the Sanctuary was under this § 929.14, in writing, to both Sanctuaries and Reserves Division, designated. the holder of the certified lease, permit, Office of Ocean and Coastal Resource (b) The holder of a valid lease, permit, license, approval, other authorization, Management, National Ocean Service, license, approval, or other authorization or right, and the issuing agency, and National Oceanic and Atmospheric in existence on the effective date of shall set forth the reason(s) for the Administration, 1305 East-West Sanctuary designation and issued by decision or action taken. Highway, Silver Spring, Maryland any Federal, State or local authority of (h) Any time limit prescribed in or 20910. A copy of the application must competent jurisdiction, or of any valid established under this § 929.14 may be accompany the notification. right of subsistence use or access in extended by the Director or designee for (d) The Director or designee may existence on the effective date of good cause. request additional information from the Sanctuary designation, authorizing an (i) The holder may appeal any action applicant as he or she deems reasonably activity prohibited by § 929.5 or § 929.6 conditioning, amending, suspending, or necessary to determine whether to may conduct the activity without being revoking any certification in accordance object to issuance of such lease, license, in violation of specified provisions of with the procedures set forth in permit, approval, or other authorization § 929.5 or § 929.6, pending final agency § 929.16. (or to issuance of an amendment, action on his or her certification request, (j) Any amendment, renewal, or extension, or renewal of such provided the holder is in compliance extension not in existence on the authorization), or what terms and with this § 929.14. effective date of Sanctuary designation conditions are reasonably necessary to (c) Any holder of a valid lease, permit, of a lease, permit, license, approval, protect Sanctuary resources and license, approval, or other authorization other authorization, or right is subject to qualities. The information requested in existence on the effective date of the provisions of § 929.15. must be received by the Director or Sanctuary designation and issued by designee within 45 days of the postmark any Federal, State, or local authority of § 929.15 Notification and review of date of the request. The Director or competent jurisdiction, or any holder of applications for leases, licenses, permits, designee may seek the views of any a valid right of subsistence use or access approvals, or other authorizations to persons on the application. in existence on the effective date of conduct a prohibited activity. (e) The Director or designee shall Sanctuary designation, may request the (a) A person may conduct an activity notify, in writing, the agency to which Director or designee to issue a finding prohibited by §§ 929.5 or 929.6 if such application has been made of his or her as to whether the activity for which the activity is specifically authorized by any review of the application and possible authorization has been issued, or the valid lease, permit, license, approval, or objection to issuance. After review of right given, is prohibited under § 929.5 other authorization issued after the the application and information or § 929.6. effective date of Sanctuary designation received with respect thereto, the (d) Requests for findings or by any Federal, State, or local authority Director or designee shall notify both certifications should be addressed to the of competent jurisdiction, provided that: the agency and applicant, in writing, 16418 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules whether he or she has an objection to Administration, 1305 East-West The boundary of the Florida Keys National issuance and what terms and conditions Highway, Silver Spring, MD 20910. Marine Sanctuary— he or she deems reasonably necessary to (c) While the appeal is pending, (a) begins at the northeasternmost point of Biscayne National Park located at protect Sanctuary resources and appellants may not conduct their approximately 25 degrees 39 minutes north qualities. The Director or designee shall activities without being subject to the latitude, 80 degrees 5 minutes west state the reason(s) for any objection or prohibitions in § § 929.5 and 929.6. longitude, then runs eastward to the 300-foot the reason(s) that any terms and (d) The Assistant Administrator or isobath located at approximately 25 degrees conditions are deemed reasonably designee may request the appellant to 39 minutes north latitude, 80 degrees 4 necessary to protect Sanctuary resources submit such information as the minutes west longitude; and qualities. (b) then runs southward and connects in Assistant Administrator or designee succession the points at the following (f) The Director or designee may deems reasonably necessary in order for coordinates: amend the terms and conditions him or her to decide the appeal. The (i) 25 degrees 34 minutes north latitude, 80 deemed reasonably necessary to protect information requested must be received degrees 4 minutes west longitude, Sanctuary resources and qualities by the Assistant Administrator or (ii) 25 degrees 28 minutes north latitude, whenever additional information designee within 45 days of the postmark 80 degrees 5 minutes west longitude, and becomes available justifying such an date of the request. The Assistant (iii) 25 degrees 21 minutes north latitude, amendment. 80 degrees 7 minutes west longitude; Administrator may seek the views of (iv) 25 degrees 16 minutes north latitude, (g) Any time limit prescribed in or any other persons. The Assistant 80 degrees 8 minutes west longitude; established under this § 929.15 may be Administrator or designee may hold an (c) then runs southwesterly approximating extended by the Director or designee for informal hearing on the appeal. If the the 300-foot isobath and connects in good cause. Assistant Administrator or designee succession the points at the following (h) The applicant may appeal any determines that an informal hearing coordinates: objection by, or terms or conditions should be held, the Assistant (i) 25 degrees 7 minutes north latitude, 80 imposed by, the Director or designee to Administrator or designee may degrees 13 minutes west longitude, (ii) 24 degrees 57 minutes north latitude, the Assistant Administrator or designee designate an officer before whom the 80 degrees 21 minutes west longitude, in accordance with the provisions set hearing shall be held. The hearing (iii) 24 degrees 39 minutes north latitude, forth in § 929.16. officer shall give notice in the Federal 80 degrees 52 minutes west longitude, Register of the time, place, and subject (iv) 24 degrees 30 minutes north latitude, § 929.16 Appeals of administrative action. matter of the hearing. The appellant and 81 degrees 23 minutes west longitude, (a) Except for permit actions taken for the Director or designee may appear (v) 24 degrees 25 minutes north latitude, 81 enforcement reasons (see 15 CFR part personally or by counsel at the hearing degrees 50 minutes west longitude, (vi) 24 degrees 22 minutes north latitude, 904, subpart D, for applicable and submit such material and present procedures), an applicant for, or a 82 degrees 48 minutes west longitude, such arguments as deemed appropriate (vii) 24 degrees 37 minutes north latitude, holder of, a § 929.10 Sanctuary permit, by the hearing officer. Within 60 days 83 degrees 6 minutes west longitude, an applicant for, or a holder of, a after the record before the hearing (viii) 24 degrees 40 minutes north latitude, § 929.11 Sanctuary Historical Resources officer closes, the hearing officer shall 83 degrees 6 minutes west longitude, Permit, an applicant for, or a holder of, recommend a decision in writing to the (ix) 24 degrees 46 minutes north latitude, a § 929.12 Special Use Permit, a § 929.14 Assistant Administrator or designee. 82 degrees 54 minutes west longitude, certification requester, or a § 929.15 (x) 24 degrees 44 minutes north latitude, 81 (e) The Assistant Administrator or degrees 55 minutes west longitude, applicant (hereinafter appellant) may designee shall decide the appeal using appeal to the Assistant Administrator or (xi) 24 degrees 51 minutes north latitude, the same regulatory criteria as for the 81 degrees 26 minutes west longitude, and designee: initial decision and shall base the (xii) 24 degrees 55 minutes north latitude, (1) The denial, conditioning, appeal decision on the record before the 80 degrees 56 minutes west longitude; amendment, suspension, or revocation Director or designee and any (d) then follows the boundary of by the Director or designee of a National information submitted regarding the Everglades National Park in a southerly then Marine Sanctuary, National Marine appeal, and if a hearing has been held, northeasterly direction through Florida Bay, Buttonwood Sound, Tarpon Basin, and Sanctuary Historical Resources or on the record before the hearing officer Special Use Permit; Blackwater Sound; and the hearing officer’s recommended (e) after Division Point, then departs from (2) The conditioning, amendment, decision. The Assistant Administrator the boundary of Everglades National Park suspension, or revocation of a or designee shall notify the appellant of and follows the western shoreline of Manatee certification under § 929.14; or the final decision and the reason(s) Bay, Barnes Sound, and Card Sound; (3) The objection to issuance or the therefor in writing. The Assistant (f) then follows the southern boundary of imposition of terms and conditions Administrator or designee’s decision Biscayne National Park to the under § 929.15. shall constitute final agency action for southeasternmost point of Biscayne National (b) An appeal under paragraph (a) of Park; and purposes of the Administrative (g) then follows the eastern boundary of this section must be in writing, state the Procedure Act. Biscayne National Park to the beginning action(s) by the Director or designee (f) Any time limit prescribed in or point specified in paragraph (a) of this appealed and the reason(s) for the established under this section other Appendix. appeal, and be received within 30 days than the 30 day limit for filing an appeal Appendix II to Part 929—-Existing of receipt of notice of the action by the may be extended by the Assistant Management Areas Director or designee. Appeals should be Administrator, designee, or hearing addressed to the Assistant officer for good cause. The four (4) areas are identified as follows: Administrator, Office of Ocean and Appendix I to Part 929—Florida Keys National Oceanic and Atmospheric Coastal Resource Management, ATTN: Administration Sanctuaries and Reserves Division, National Marine Sanctuary Boundary Coordinates Pre-existing National Marine Sanctuaries: Office of Ocean and Coastal Resource (1) Key Largo National Marine Sanctuary Management, National Ocean Service, (Appendix Based on North American Datum (see 15 CFR Part 929, as revised January 1, National Oceanic and Atmospheric of 1983.) 1995). Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16419 (2) Looe Key National Marine Sanctuary Area Measure Point Latitude Longitude (see 15 CFR Part 937, as revised January 1, 1995). (18) Rodriguez Key No motor zone on tidal ALLIGATOR REEF United States Fish and Wildlife Service flat. 1 ...... 24°51.2′N 80°37.1′W (3) Great White Heron National Wildlife (19) Dove Key ...... No motor zone on tidal 2 ...... 24°50.8′N 80°36.8′W Refuge flat; No access zone 3 ...... 24°50.4′N 80°37.3′W (4) Key West National Wildlife Refuge around the two small islands. CARYSFORT/SOUTH CARYSFORT REEF (20) Tavernier Key . No motor zone on tidal Appendix III to Part 929—-Wildlife 1 ...... 25°14.1′N 80°12.6′W Management Areas flat. 2 ...... 25°13.7′N 80°12.2′W (21) Sawyer Keys .. Close tidal creeks on ° ′ ° ′ The twenty-six (26) zones are described as 3 ...... 25 12.2 N 80 13.4 W south side. 4 ...... 25°12.5′N 80°13.8′W follows: (22) Snipe Keys (i) Idle no-wake speed (tidal creeks north zone in main tidal CHEECA ROCKS Area Measure of Outer narrows). creek; (ii) No motor 1 ...... 24°54.5′N 80°37.6′W zone elsewhere. 2 ...... 24°54.3′N 80°37.5′W (1) Bay Keys ...... No motor zone (300 (23) Upper Harbor No access buffer zone 3 ...... 24°54.2′N 80°37.7′W feet) around one is- Key. (300 feet) around en- 4 ...... 24°54.5′N 80°37.8′W land; Idle/no-wake tire island. speed in tidal creeks (24) East Content Idle/ no-wake speed COFFINS PATCH (2) Boca Grande Close south one-half of Keys. zones in tidal creeks 1 ...... 24°41.1′N 80°57.5′W Key. the beach. between south- 2 ...... 24°40.6′N 80°58.4′W (3) Woman Key ...... Close east one-half of westernmost islands. 3 ...... 24°41.5′N 80°57.7′W the beach and sand (25) West Content Idle/ no-wake speed 4 ...... 24°41.1′N 80°58.6′W spit (southeast side). Keys. zones in tidal creeks; (4) Cayo Agua Idle/ no-wake speed no access buffer CONCH REEF Keys. zone in all tidal zone in one cove. creeks. 1 ...... 24°57.5′N 80°27.4′W (26) Little Crane No access buffer zone ° ′ ° ′ (5) Cotton Key ...... No motor zone on tidal Key. (300 feet) around en- 2 ...... 24 57.4 N 80 27.3 W 3 ...... 24°57.0′N 80°27.7′W flat. tire island. (6) Snake Creek .... Do. 4 ...... 24°56.9′N 80°27.6′W (7) Cottrell Key ...... No motor zone (300 Appendix IV to Part 929—- DAVIS REEF feet) around entire is- Replenishment Reserves land. 1 ...... 24°55.6′N 80°30.3′W (8) Little Mullet Key No access buffer zone The three (3) zones consist of those 2 ...... 24°55.3′N 80°30.0′W (300 feet) around en- portions of the Sanctuary which are located 3 ...... 24°55.1′N 80°30.4′W tire island. within the following geographic boundary 4 ...... 24°55.4′N 80°30.7′W (9) Big Mullet Key .. No motor zone (300 coordinates based on North American Datum DRY ROCKS feet) around entire is- of 1983: land. 1 ...... 25°7.6′N 80°17.9′W (10) Crocodile Lake No access buffer zone Point Latitude Longitude 2 ...... 25°7.4′N 80°17.7′W (300 feet) along 3 ...... 25°7.3′N 80°17.8′W shoreline. KEY LARGO 4 ...... 25°7.4′N 80°18.1′W (11) East Harbor No access buffer zone 1 ...... 25°17.7′N 80°16.9′W GRECIAN ROCKS Key. (300 feet) around 2 ...... 25°15.2′N 80°11.2′W northernmost island. ° ′ ° ′ 1 ...... 25°6.9′N 80°18.2′W 3 ...... 25 11.6 N 80 13.3 W ° ′ ° ′ (12) Lower Harbor Idle/ no-wake speed 4 ...... 25°14.3′N 80°19.0′W 2 ...... 25 6.6 N 80 17.9 W Keys. zone in all tidal 3 ...... 25°6.1′N 80°18.5′W creeks. SAMBOS 4 ...... 25°6.2′N 80°18.6′W 5 ...... 25°6.8′N 80°18.6′W (13) Horseshoe Key No access buffer zone 1 ...... 24°33.70′N 81°40.80′W (300 feet) around 2 ...... 24°28.70′N 81°41.90′W EASTERN DRY ROCKS main island. ° ′ ° ′ 3 ...... 24 28.50 N 81 43.70 W ° ′ ° ′ (14) Marquesas (i) No motor zones (300 4 ...... 24°33.50′N 81°43.10′W 1 ...... 24 27.9 N 81 50.5 W Keys. feet) around 3 small 2 ...... 24°27.7′N 81°50.4′W islands on western DRY TORTUGAS 3 ...... 24°27.5′N 81°50.6′W 4 ...... 24°27.7′N 81°50.8′W side of chain; (ii) no 1 ...... 24°45.70′N 82°45.00′W access buffer zone 2 ...... 24°22.20′N 82°45.00′W THE ELBOW (300 feet) around one 3 ...... 24°22.00′N 82°48.00′W island at western side ° ′ ° ′ 1 ...... 25°9.1′N 80°15.4′W 4 ...... 24 25.30 N 82 52.00 W ° ′ ° ′ of chain; (iii) idle/ no- 5 ...... 24°34.00′N 82°52.00′W 2 ...... 25 8.9 N 80 15.1 W wake speed zone ° ′ ° ′ 3 ...... 25°8.1′N 80°15.7′W 6 ...... 24 34.00 N 82 54.00 W ° ′ ° ′ through one tidal 7 ...... 24°37.00′N 82°48.00′W 4 ...... 25 8.8 N 80 15.7 W creek on southern ° ′ ° ′ 8 ...... 24 40.00 N 82 46.00 W FRENCH REEF side of chain. 9 ...... 24°42.00′N 82°46.00′W ° ′ ° ′ (15) Tidal flat south 10 ...... 24°43.90′N 82°48.00′W 1 ...... 25 2.2 N 80 20.6 W ° ′ ° ′ of Marvin Key. No access buffer zone. 11 ...... 24°43.50′N 82°52.00′W 2 ...... 25 1.8 N 80 21.0 W ° ′ ° ′ . 12 ...... 24°45.90′N 82°52.00′W 3 ...... 25 2.3 N 80 21.2 W (16) Mud Keys (i) ... Idle/ no-wake speed HEN AND CHICKENS zones in 2 main Appendix V to Part 929—-Sanctuary 1 ...... 24°56.4′N 80°32.9′W creeks; (ii) No access Preservation Areas in 2 smaller creeks. 2 ...... 24°56.2′N 80°32.7′W (17) Pelican Shoal . No landing and no ac- The nineteen (19) zones consist of those 3 ...... 24°55.7′N 80°33.1′W cess out to 50 feet portions of the Sanctuary which are located 4 ...... 24°55.9′N 80°33.3′W from shore between within the following geographic boundary April 1 and Septem- coordinates based on North American Datum LOOE KEY ber 15. of 1983: 1 ...... 24°33.2′N 81°24.2′W 16420 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules Point Latitude Longitude Appendix VII to Part 929—-Coordinates Area Surrounding the Marquesas Keys for the Area to be Avoided (Reference Chart: United States 11434, 21st 2 ...... 24°32.6′N 81°24.1′W Edition—August 11, 1990.) 3 ...... 24°32.4′N 81°24.7′W In the Vicinity of the Florida Keys 4 ...... 24°33.1′N 81°24.8′W (Reference Charts: United States 11466, Point Latitude Longitude 27th Edition—September 1, 1990 and United MOLASSES REEF States 11450, 4th Edition—August 11, 1990.) 30 24°26.60′N 1 ...... 25°0.9′N 80°22.4′W 81°59.55′W. 2 ...... 25°0.7′N 80°22.0′W Point Latitude Longitude 31 24°23.00′N 3 ...... 25°0.2′N 80°22.8′W 82°03.50′W. ° ′ 4 ...... 25°0.7′N 80°22.8′W 1 25 45.00 N 32 24°23.60′N ° ′ 80 06.10 W. 82°27.80′W. NEWFOUND HARBOR KEY 2 25°38.70′N ° ′ ° ′ 33 24 34.50 N 1 ...... 24°37.1′N 81°23.3′W 80 02.70 W. ° ′ ° ′ 82 37.50 W. 2 ...... 24°36.7′N 81°23.8′W 3 25 22.00 N ° ′ ° ′ 34 24 43.00 N 3 ...... 24°36.8′N 81°23.3′W 80 03.00 W. ° ′ ° ′ 82 26.50 W. 4 ...... 24°36.9′N 81°23.9′W 4 25 00.20 N ° ′ ° ′ 35 24 38.31 N 80 13.40 W. 81°54.06′W. ROCK KEY 5 24°37.90′N 36 24°37.91′N 80°47.30′W. 1 ...... 24°27.5′N 81°51.3′W 81°53.40′W. 6 24°29.20′N 2 ...... 24°27.3′N 81°51.2′W 37 24°36.15′N 81°17.30′W. 3 ...... 24°27.2′N 81°51.5′W 81°51.78′W. 7 24°22.30′N 4 ...... 24°27.5′N 81°51.6′W 38 24°34.40′N 81°43.17′W. 81°50.60′W. SAND KEY 8 24°28.00′N 39 24°33.44′N 81°43.17′W. 1 ...... 24°27.6′N 81°53.1′W 81°49.73′W. 9 24°28.70′N 2 ...... 24°27.0′N 81°53.1′W 40 24°31.20′N 81°43.50′W. 3 ...... 24°27.0′N 81°52.3′W 81°52.10′W. 10 24°29.80′N 4 ...... 24°27.6′N 81°52.3′W ° ′ 81°43.17′W. 41 24 28.70 N ° ′ 81°56.80′W. SOMBRERO KEY 11 24 33.10 N ° ′ 81°35.15′W. 42 24 26.60 N 1 ...... 24°37.8′N 81°6.7′W ° ′ 81°59.55′W. ° ′ ° ′ 12 24 33.60 N 2 ...... 24 37.3 N 81 6.1 W 81°26.00′W. 3 ...... 24°37.1′N 81°6.8′W Area Surrounding the Dry Tortugas Islands 13 24°38.20′N ° ′ WESTERN SAMBO 81 07.00 W. (Reference Chart: United States 11434, 21st 14 24°43.20′N Edition—August 11, 1990.) ° ′ ° ′ 1 ...... 24 29.1 N 81 42.6 W 80°53.20′W. ° ′ ° ′ 2 ...... 24 28.8 N 81 42.4 W 15 24°46.10′N Point Latitude Longitude 3 ...... 24°28.6′N 81°43.2′W ° ′ ° ′ ° ′ 80 46.15 W. 4 ...... 24 28.9 N 81 43.4 W 16 24°51.10′N 43 24°32.00′N 80°37.10′W. 82°53.50′W. Appendix VI to Part 929—-Special Use 17 24°57.50′N 44 24°32.00′N Areas 80°27.50′W. 83°00.05′W. ° ′ 45 24°39.70′N The four (4) zones consist of those portions 18 25 09.90 N ° ′ 83°00.05′W. of the Sanctuary which are located within the 80 16.20 W. ° ′ 46 24°45.60′N following geographic boundary coordinates 19 25 24.00 N ° ′ 82°54.40′W. based on North American Datum of 1983: 80 09.10 W. 20 25°31.50′N 47 24°45.60′N ° ′ 82°47.20′W. Point Latitude Longitude 80 07.00 W. 21 25°39.70′N 48 24°42.80′N ° ′ 82°43.90′W. CONCH REEF (RESEARCH ONLY) 80 06.85 W. 22 25°45.00′N 49 24°39.50′N 1 ...... 24°57.4′N 80°27.3′W 80°06.10′W. 82°43.90′W. 2 ...... 24°57.0′N 80°27.0′W 50 24°35.60′N 3 ...... 24°56.7′N 80°27.4′W In the Vicinity of Key West Harbor 82°46.40′W. 4 ...... 24°57.0′N 80°27.7′W ° ′ (Reference Chart: United States 11434, 21st 51 24 32.00 N 82°53.50′W. LOOE KEY (RESEARCH ONLY) Edition—August 11, 1990.) ° ′ ° ′ 1 ...... 24 34.1 N 81 23.3 W Point Latitude Longitude Appendix VIII to Part 929—Marine Life 2 ...... 24°34.0′N 81°23.2′W Rule 3 ...... 24°33.8′N 81°23.8′W 23 24°27.95′N 4 ...... 24°34.0′N 81°23.9′W 81°48.65′W. [As excerpted from Chapter 46–42 of the 24 24°23.00′N Florida Administrative Code] PELICAN SHOAL (RESEARCH ONLY) 81°53.50′W. 46–42.001 Purpose and Intent; Designation 1 ...... 24°30.3′N 81°37.7′W 25 24°26.60′N of Restricted Species; Definition of 2 ...... 24°30.0′N 81°37.7′W 81°58.50′W. ‘‘Marine Life Species.’’ 3 ...... 24°30.0′N 81°38.0′W 26 24°27.75′N 46–42.002 Definitions. 4 ...... 24°30.2′N 81°38.0′W 81°55.70′W. 46–42.003 Prohibition of Harvest: 27 24°29.35′N Longspine Urchin, Bahama Starfish. TENNESSEE REEF (RESEARCH ONLY) 81°53.40′W. 46–42.0035 Live Landing and Live Well 1 ...... 24°45.9′N 80°45.6′W 28 24°29.35′N Requirements. 2 ...... 24°45.7′N 80°45.4′W 81°50.00′W. 3 ...... 24°46.0′N 80°44.9′W 29 24°27.95′N 4 ...... 24°46.2′N 80°45.1′W 81°48.65′W. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16421 46–42.0036 Harvest in Biscayne National (p) Butterflyfish—Any species of the 1. Yellowline arrow crab—Stenorhynchus Park.* Family Chaetodontidae. seticornis. 46–42.004 Size Limits. (q) Angelfish—Any species of the Family 2. Furcate spider or decorator crab— 46–42.005 Bag Limits. Pomacanthidae. Stenocionops furcata. 46–42.006 Commercial Season, Harvest (r) Damselfish—Any species of the Family 3. Thinstripe hermit crab—Clibanarius Limits. Pomacentridae. vittatus. 46–42.007 Gear Specifications and (s) Hawkfish—Any species of the Family 4. Polkadotted hermit crab—Phimochirus Prohibited Gear. Cirrhitidae. operculatus. 46–42.008 Live Rock.** (t) Wrasse/hogfish/razorfish—Any species 5. Spotted porcelain crab—Porcellana 46–42.001 Purpose and Intent; Designation of the Family Labridae, except hogfish, sayana. of Restricted Species; Definition of Lachnolaimus maximus. 6. Nimble spray or urchin crab—Percnon ‘‘Marine Life Species’’.— (u) Parrotfish—Any species of the Family gibbesi. (1)(a) The purpose and intent of this Scaridae. 7. False arrow crab—Metoporhaphis chapter are to protect and conserve Florida’s (v) Jawfish—Any species of the Family calcarata. tropical marine life resources and assure the Opistognathidae. (m) Starfish—Any species of the Class continuing health and abundance of these (w) Blennies—Any species of the Families Asteroidea, except the Bahama starfish, species. The further intent of this chapter is Clinidae or Blenniidae. Oreaster reticulatus. to assure that harvesters in this fishery use (x) Sleepers—Any species of the Family (n) Brittlestars—Any species of the Class nonlethal methods of harvest and that the Eleotrididae. Ophiuroidea. fish, invertebrates, and plants so harvested be (y) Gobies—Any species of the Family (o) Sea urchins—Any species of the Class maintained alive for the maximum possible Gobiidae. Echinoidea, except longspine urchin, conservation and economic benefits. (z) Tangs and surgeonfish—Any species of Diadema antillarum, and sand dollars and (b) It is the express intent of the Marine the Family Acanthuridae. sea biscuits, Order Clypeasteroida. Fisheries Commission to phase out the (aa) Filefish/triggerfish—Any species of the (p) Sea cucumbers—Any species of the landing of live rock harvested in federal Family Balistes, except gray triggerfish, Class Holothuroidea. Exclusive Economic Zone (EEZ) waters Balistidae capriscus. (q) Sea lillies—Any species of the Class adjacent to state waters. Such harvest is and (bb) Trunkfish/cowfish—Any species of Crinoidea. will continue to be prohibited in Florida the Family Ostraciidae. (4) The following species of plants, as they waters, except that landing of live rock (cc) Pufferfish/burrfish/balloonfish—Any occur in waters of the state and in federal propagated through aquaculture will be of the following species: Exclusive Economic Zone (EEZ) waters allowed pursuant to the provisions of this 1. Balloonfish—Diodon holocanthus. adjacent to state waters, are hereby chapter. 2. Sharpnose puffer—Canthigaster rostrata. designated as restricted species pursuant to (2) The following fish species, as they 3. Striped burrfish—Chilomycterus Section 370.01(20), Florida Statutes: occur in waters of the state and in federal schoepfi. (a) Caulerpa—Any species of the Family Exclusive Economic Zone (EEZ) waters (3) The following invertebrate species, as Caulerpaceae. adjacent to state waters, are hereby they occur in waters of the state and in (b) Halimeda/mermaid’s fan/mermaid’s designated as restricted species pursuant to federal Exclusive Economic Zone (EEZ) shaving brush—Any species of the Family Section 370.01(20), Florida Statutes: Halimedaceae. (a) Moray eels—Any species of the Family waters adjacent to state waters, are hereby designated as restricted species pursuant to (c) Coralline red algae—Any species of the Muraenidae. Family Corallinaceae. (b) Snake eels—Any species of the Genera § 370.01(20), Florida Statutes: (a) Sponges—Any species of the Class (5) For the purposes of Section Myrichthys and Myrophis of the Family 370.06(2)(d), Florida Statutes, the term Ophichthidae. Demospongia, except sheepswool, yellow, grass, glove, finger, wire, reef, and velvet ‘‘marine life species’’ is defined to mean (c) Toadfish—Any species of the Family those species designated as restricted species Batrachoididae. sponges, Order Dictyoceratida. in subsections (2), (3), and (4) of this rule. (d) Frogfish—Any species of the Family (b) Upside-down jellyfish—Any species of Antennariidae. the Genus Cassiopeia. Specific Authority 370.01(20), 370.027(2), (e) Batfish—Any species of the Family (c) Siphonophores/hydroids—Any species 370.06(2)(d), F.S. Law Implemented Ogcocephalidae. of the Class Hydrozoa, except fire corals, 370.01(20), 370.025, 370.027, 370.06(2)(d), (f) Clingfish—Any species of the Family Order Milleporina. F.S. History—New 1–1–91, Amended 7–1– Gobiesocidae. (d) Soft corals—Any species of the 92. (g) Trumpetfish—Any species of the Subclass Octocorallia, except sea fans 46–42.002 Definitions.—As used in this rule Family Aulostomidae. Gorgonia flabellum and Gorgonia ventalina. chapter: (h) Cornetfish—Any species of the Family (e) Sea anemones—Any species of the (1) ‘‘Barrier net,’’ also known as a ‘‘fence Fistulariidae. Orders Actinaria, Zoanthidea, net,’’ means a seine used beneath the surface (i) Pipefish/seahorses—Any species of the Corallimorpharia, and Ceriantharia. of the water by a diver to enclose and Family Syngnathidae. (f) Featherduster worms/calcareous concentrate tropical fish and which may be (j) Hamlet/seabass—Any species of the tubeworms—Any species of the Families made of either nylon or monofilament. Family Serranidae, except groupers of the Sabellidae and Serpulidae. (2) ‘‘Drop net’’ means a small, usually genera Epinephalus and Mycteroperca, and (g) Star-shells—Any of the species Astraea circular, net with weights attached along the seabass of the genus Centropristis. americana or Astraea phoebia. outer edge and a single float in the center, (k) Basslets—Any species of the Family (h) Nudibranchs/sea slugs—Any species of used by a diver to enclose and concentrate Grammistidae. the Subclass Opisthobranchia. tropical fish. (l) Cardinalfish—Any species of the Family (i) Fileclams—Any species of the Genus (3) ‘‘Gorgonian,’’ except for purposes of Apogonidae. Lima. Rule 46–42.001, means any member of any (m) High-hat, Jackknife-fish, Spotted drum, (j) Octopods—Any species of the Order species of the Subclass Octocorallia, except Cubbyu—Any species of the genus Equetus Octopoda, except the common octopus, the species Gorgonia flabellum and Gorgonia of the Family Sciaenidae. Octopodus vulgaris. ventalina. (n) Reef Croakers—Any of the species (k) Shrimp—Any of the following species: (4) ‘‘Hand held net’’ means a landing or dip Odontocion dentex. 1. Cleaner shrimp and peppermint net as defined in Rule 46–4.002(4), except (o) Sweepers—Any species of the Family shrimp—Any species of the Genera that a portion of the bag may be constructed Pempherididae. Periclimenes or Lysmata. of clear plastic material, rather than mesh. 2. Coral shrimp—Any species of the Genus (5) ‘‘Harvest’’ means the catching or taking * Part 42.0036 is not set forth because it does not Stenopus. of a marine organism by any means apply to the Sanctuary. 3. Snapping shrimp—Any species of the whatsoever, followed by a reduction of such ** Part 42.008 is not set forth because it is Genus Alpheus. organism to possession. Marine organisms regulated pursuant to § 929.5(2)(ii). (l) Crabs—Any of the following species: that are caught but immediately returned to 16422 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules the water free, alive, and unharmed are not Specific Authority 370.027(2), F.S. Law butterflyfish (Family Chaetodontidae) of total harvested. In addition, temporary possession Implemented 370.025, 370.027, F.S. History: length less than one (1) inch. of a marine animal for the purpose of New 1–1–91, Amended 7–1–92. (b) No person shall harvest, possess while measuring it to determine compliance with 46–42.0035 Live Landing and Live Well in or on the waters of the state, or land any the minimum or maximum size requirements Requirements.— butterflyfish of total length greater than 4 of this chapter shall not constitute harvesting (1) Each person harvesting any tropical inches. such animal, provided that it is measured ornamental marine life species or any (3) Gobies—No person shall harvest, immediately after taking, and immediately tropical ornamental marine plant shall land possess while in or on the waters of the state, or land any gobie (Family Gobiidae) of total returned to the water free, alive, and such marine organism alive. length greater than 2 inches. unharmed if undersize or oversize. (2) Each person harvesting any tropical (4) Jawfishes—No person shall harvest, (6) ‘‘Harvest for commercial purposes’’ ornamental marine life species or any tropical ornamental marine plant shall have possess while in or on the waters of the state, means the taking or harvesting of any tropical or land any jawfish (Family Opistognathidae) ornamental marine life species or tropical aboard the vessel being used for such harvest a continuously circulating live well or of total length greater than 4 inches. ornamental marine plant for purposes of sale aeration or oxygenation system of adequate Specific Authority 370.027(2), F.S. Law or with intent to sell. The harvest of tropical size and capacity to maintain such harvested Implemented 370.025, 370.027, F.S. History: ornamental marine life species or tropical marine organisms in a healthy condition. New 1–1–91, Amended 7–1–92. ornamental marine plants in excess of the bag limit shall constitute prima facie evidence of Specific Authority 370.027(2), F.S. Law 46–42.005 Bag limit.— Implemented 370.025, 370.027, F.S. History: (1) Except as provided in Rule 46–42.006 intent to sell. New 7–1–92. or subsections (3) or (4) of this rule, no (7) ‘‘Land,’’ when used in connection with person shall harvest, possess while in or on the harvest of marine organisms, means the 46–42.004 Size Limits.— (1) Angelfishes.— the waters of the state, or land more than 20 physical act of bringing the harvested individuals per day of tropical ornamental organism ashore. (a) No person harvesting for commercial purposes shall harvest, possess while in or marine life species, in any combination. (8) ‘‘Live rock’’- see definition in section on the waters of the state, or land any of the (2) Except as provided in Rule 46–42.006, 929.3 following species of angelfish, of total length no person shall harvest, possess while in or (9) ‘‘Slurp gun’’ means a self-contained, less than that set forth below: on the waters of the state, or land more than handheld device that captures tropical fish 1. One-and-one-half (1 1/2) inches for: one (1) gallon per day of tropical ornamental by rapidly drawing seawater containing such a. Gray angelfish (Pomacanthus arcuatus). marine plants, in any combination of species. fish into a closed chamber. b. French angelfish (Pomacanthus paru). (3) Except as provided in Rule 46–42.006, (10) ‘‘Total length’’ means the length of a 2. One-and-three-quarters (1 3/4) inches no person shall harvest, possess while in or fish as measured from the tip of the snout to for: on the waters of the state, or land more than the tip of the tail. a. Blue angelfish (Holacanthus 5 angelfishes (Family Pomacanthidae) per (11) ‘‘Trawl’’ means a net in the form of an bermudensis). day. Each angelfish shall be counted for elongated bag with the mouth kept open by b. Queen angelfish (Holacanthus ciliaris). purposes of the 20 individual bag limit various means and fished by being towed or 3. Two (2) inches for rock beauty specified in subsection (1) of this rule. dragged on the bottom. ‘‘Roller frame trawl’’ (Holacanthus tricolor). (4)(a) Unless the season is closed pursuant means a trawl with all of the following (b) No person shall harvest, possess while to paragraph (b), no person shall harvest, features and specifications: in or on the waters of the state, or land any possess while in or on the waters of the state, (a) A rectangular rigid frame to keep the angelfish (Family Pomacanthidae), of total or land more than 6 colonies per day of mouth of the trawl open while being towed. length greater than that specified below: gorgonians. Each colony of gorgonian or part thereof shall be considered an individual of (b) The lower horizontal beam of the frame 1. Ten (10) inches for angelfish, except the species for purposes of subsection (1) of has rollers to allow the trawl to roll over the rock beauty (Holacanthus tricolor). this rule and shall be counted for purposes bottom and any obstructions while being 2. Six (6) inches for rock beauty. (c) Except as provided herein, no person of the 20 individual bag limit specified towed. therein. (c) The trawl opening is shielded by a grid shall purchase, sell, or exchange any angelfish smaller than the limits specified in (b) If the harvest of gorgonians in federal of vertical bars spaced no more than 3 inches paragraph (a) or larger than the limits Exclusive Economic Zone (EEZ) waters apart. specified in paragraph (b). This prohibition adjacent to state waters is closed to all (d) The trawl is towed by attaching a line shall not apply to angelfish legally harvested harvesters prior to the end of any calendar or towing cable to a tongue located above or outside of state waters or federal Exclusive year, the season for harvest of gorgonians in at the center of the upper horizontal beam of Economic Zone (EEZ) waters adjacent to state state waters shall also close until the the frame. waters, which angelfish are entering Florida following January 1, upon notice given by the (e) The trawl has no doors attached to keep in interstate or international commerce. The Executive Director of the Department of the mouth of the trawl open. burden shall be upon any person possessing Natural Resources, in the manner provided in (12) ‘‘Tropical fish’’ means any species such angelfish for sale or exchange to s. 120.52(16)(d), Florida Statutes. included in subsection (2) of Rule 46–42.001, establish the chain of possession from the Specific Authority 370.027(2), F.S. Law or any part thereof. initial transaction after harvest, by Implemented 370.025, 370.027, F.S. History: (13) ‘‘Tropical ornamental marine life appropriate receipt(s), bill(s) of sale, or bill(s) New 1–1–91. species’’ means any species included in of lading, and any customs receipts, and to 46–42.006 Commercial Season, Harvest subsections (2) or (3) of Rule 46–42.001, or show that such angelfish originated from a Limits.— any part thereof. point outside the waters of the State of (1) Except as provided in Rule 46– (14) ‘‘Tropical ornamental marine plant’’ Florida or federal Exclusive Economic Zone 42.008(7), no person shall harvest, possess means any species included in subsection (4) (EEZ) waters adjacent to Florida waters and while in or on the waters of the state, or land of Rule 46–42.001. entered the state in interstate or international quantities of tropical ornamental marine life commerce. Failure to maintain such species or tropical ornamental marine plants Specific Authority 370.027(2), F.S. Law documentation or to promptly produce same in excess of the bag limits established in Rule Implemented 370.025, 370.027, F.S. History: at the request of any duly authorized law 46–42.005 unless such person possesses a New 1–1–91, Amended 7–1–92. enforcement officer shall constitute prima valid saltwater products license with both a 46–42.003 Prohibition of Harvest: facie evidence that such angelfish were marine life fishery endorsement and a Longspine Urchin, Bahama Starfish.— harvested from Florida waters or adjacent restricted species endorsement issued by the No person shall harvest, possess while in EEZ waters for purposes of this paragraph. Department of Natural Resources. or on the waters of the state, or land any (2) Butterflyfishes.— (2) Persons harvesting tropical ornamental of the following species: (a) No person harvesting for commercial marine life species or tropical ornamental (1) Longspine urchin, Diadema antillarum. purposes shall harvest, possess while in or marine plants for commercial purposes shall (2) Bahama starfish, Oreaster reticulatus. on the waters of the state, or land any have a season that begins on January 1 of Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16423 each year and continues through December 2. The trawl shall weigh no more than 5 DC 20593–0001. Written comments may 31 of the same year. These persons shall not pounds wet when weighed out of the water. be mailed to the Executive Secretary, harvest, possess while in or on the waters of (2) This rule shall not be construed to Marine Safety Council (G–LRA), U.S. the state, or land tropical ornamental marine prohibit the use of any bag or container used Coast Guard, 2100 Second Street, SW., life species in excess of the following limits: solely for storing collected specimens or the (a) A limit of 75 angelfish (Family use of a single blunt rod in conjunction with Washington, DC 20593–0001, or may be Pomacanthidae) per person per day or 150 any allowable gear, which rod meets each of delivered to room 3406 at the same angelfish per vessel per day, whichever is the following specifications: address between 8 a.m. and 3 p.m., less. (a) The rod shall be made of nonferrous Monday through Friday, except Federal (b) A limit of 75 butterflyfishes (Family metal, fiberglass, or wood. holidays. Chaetodontidae) per vessel per day. (b) The rod shall be no longer than 36 Comments will become part of this (c) There shall be no limits on the harvest inches and have a diameter no greater than docket and will be available for for commercial purposes of gorgonians 3/4 inch at any point. inspection or copying at room 3406, unless and until the season for all harvest of (3) No person shall harvest in or from state gorgonians in federal Exclusive Economic Coast Guard Headquarters, between 8 waters any tropical fish by or with the use a.m. and 3 p.m., Monday through Zone (EEZ) waters adjacent to state waters is of any gear other than those types specified closed. At such time, the season for harvest in subsection (1); provided, however, that Friday, except Federal holidays. of gorgonians in state waters shall also close tropical fish harvested as an incidental FOR FURTHER INFORMATION CONTACT: Mr. until the following January 1, upon notice bycatch of other species lawfully harvested Bruce P. Novak, Regulations given by the Executive Director of the for commercial purposes with other types of Coordinator, Oil Pollution Act (OPA 90) Department of Natural Resources, in the gear shall not be deemed to be harvested in Staff, U.S. Coast Guard, 2100 Second manner provided in Section 120.52(16)(d), violation of this rule, if the quantity of Florida Statutes. Street SW., Washington, DC 20593– tropical fish so harvested does not exceed the 0001, telephone (202) 267–6819. This (d) A limit of 200 giant Caribbean or ‘‘pink- bag limits established in Rule 46–42.005. tipped’’ anemones (Condylactus gigantea) telephone is equipped to record Specific Authority 370.027(2), F.S. Law per vessel per day. messages on a 24-hour basis. Implemented 370.025, 370.027, F.S. History: Specific Authority 370.027(2), F.S. Law New 1–1–91, Amended 7–1–92. SUPPLEMENTARY INFORMATION: The Implemented 370.025, 370.027, F.S. History: President recently announced a New 1–1–91, Amended 7–1–92. PART 937Ð[REMOVED AND Regulatory Reinvention initiative. 46–42.007 Gear Specifications and RESERVED] Under this initiative agencies are Prohibited Gear. directed to review their regulations; (1) The following types of gear shall be the 2. Part 937 is removed and reserved. improve their enforcement efforts to only types allowed for the harvest of any [FR Doc. 95–7669 Filed 3–29–95; 8:45 am] tropical fish, whether from state waters or focus on results, not punishment; meet from federal Exclusive Economic Zone (EEZ) BILLING CODE 3510±12±P with the people affected by their waters adjacent to state waters: regulations; and substantially increase (a) Hand held net. their efforts to promote consensual (b) Barrier net, with a mesh size not DEPARTMENT OF TRANSPORTATION rulemaking. exceeding 3/4 inch stretched mesh. In reviewing existing regulations the (c) Drop net, with a mesh size not Coast Guard Coast Guard will be focussing on the exceeding 3/4 inch stretched mesh. following issues: (1) Identification of (d) Slurp gun. 33 CFR Chapter I obsolete regulations; (2) suggestions for (e) Quinaldine may be used for the harvest achieving the intended goal of of tropical fish if the person using the 46 CFR Chapter I chemical or possessing the chemical in or on regulations that would be more efficient the waters of the state meets each of the [CGD 95±022] and/or less intrusive; (3) identification following conditions: of private sector alternatives to 1. The person also possesses and maintains Presidential Regulation Review regulations such as market mechanisms, aboard any vessel used in the harvest of that can achieve the objectives of tropical fish with quinaldine a special AGENCY: Coast Guard, DOT. regulations; (4) could private business, activity license authorizing the use of ACTION: Public meeting; request for setting its own standards and being quinaldine, issued by the Division of Marine comments. Resources of the Department of Natural subject to public accountability, do the job as well; and (5) could State or local Resources pursuant to Section 370.08(8), SUMMARY: The Coast Guard will conduct government regulations be used in lieu Florida Statutes. a public meeting to provide the public 2. The quinaldine possessed or applied of Coast Guard regulation? while in or on the waters of the state is in an opportunity to comment on Coast The Coast Guard is interested in a diluted form of no more than 2% Guard regulations and the regulatory suggestions on areas where the goals of concentration in solution with seawater. process. Comments are sought on our regulatory and enforcement Prior to dilution in seawater, quinaldine shall changes to Coast Guard regulations that programs are not clear, and on only be mixed with isopropyl alcohol or would make them less burdensome or recommendations for improvements ethanol. more flexible, including use of (f) A roller frame trawl operated by a that would focus on attaining defined negotiated rulemaking to effect changes, safety and environmental protection person possessing a valid live bait shrimping and on improvements that could be license issued by the Department of Natural results rather than mandating the use of made to the enforcement process, while Resources pursuant to Section 370.15, specific methods or equipment. Florida Statutes, if such tropical fish are still ensuring a high level of safety and The Coast Guard would also like to taken as an incidental bycatch of shrimp environmental protection. discuss techniques for developing lawfully harvested with such trawl. DATES: The meeting will be held April consensus rules. Negotiated rulemaking (g) A trawl meeting the following 20, 1995, from 9 a.m. to 3 p.m. Written is currently being offered as the primary specifications used to collect live specimens material must be received not later than way of achieving consensus rulemaking. of the dwarf seahorse, Hippocampus May 1, 1995. zosterae, if towed by a vessel no greater than The Coast Guard has used negotiated 15 feet in length at no greater than idle speed: ADDRESSES: The meeting will be held in rulemaking and has explored its use for 1. The trawl opening shall be no larger room 2415, Coast Guard Headquarters, several rulemaking projects. While than 12 inches by 48 inches. 2100 Second Street SW., Washington, negotiated rulemaking has the ability to 16424 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules bring together private parties with The Coast Guard has also been DEPARTMENT OF THE INTERIOR widely disparate views, not all making extensive use of its advisory rulemakings are appropriate for use of committees early in the rulemaking Bureau of Land Management this process The report accompanying process. The advisory committees have 43 CFR Part 3100 the National Performance Review a particular expertise and are able to identifies the following limits on use of advise the Coast Guard on impacts to [WO±610±00±4110±2411] the negotiated rulemaking process: the industry and the environment, (1) The number of distinct interests technological feasibility, alternatives, RIN 1004±AC26 concerned with the proposed rule, existence of industry standards, and so including any relevant government on. Promotion of Development, Reduction agencies, must be small enough so that of Royalty on Heavy Oil they can be fairly represented by not Although the resulting rules are not more than 20 to 25 negotiators; precisely consensual, they result in AGENCY: Bureau of Land Management, (2) There should be a number of broad public participation in the Interior. diverse issues that participants can rank rulemaking process. Interested parties ACTION: Proposed rule. according to their own priorities, so that discuss concerns and issues with each there will be room for compromise on other and the Coast Guard at informal SUMMARY: The Bureau of Land some of the issues as an agreement is meetings and workshops where there is Management (BLM) is issuing this sought; considerable give and take among the proposed rule to amend the regulations (3) It is essential that the issues to be participants. The Coast Guard has found relating to the waiver, suspension, or negotiated not require compromise of that this early identification and reduction of rental, royalty, or minimum principles so fundamental to the parties royalty. This amendment would discussion of issues results in a better that productive negotiations are establish the conditions under which crafted proposed rule that is subject to unrealistic; the operators of properties that produce (4) Parties must be willing to negotiate less adverse comment. ‘‘heavy oil’’ (crude oil with a gravity of in good faith, and no single interest The Coast Guard is also being less than 20 degrees) can obtain a should be able to dominate the responsive to the public’s demand for reduction in the royalty rate. This action negotiations; and more timely rulemaking by increasing is being taken to encourage the (5) The parties cannot have an personnel accountability. Once operators of Federal heavy oil leases to incentive to stall; therefore, they must timelines for major milestones have place marginal or uneconomical shut-in believe that the agency itself will issue been approved by the Coast Guard’s oil wells back in production, provide an a rule if consensus is not reached. A Marine Safety Council, progress on the economic incentive to implement statutory requirement that the agency rulemaking is closely monitored and enhanced oil recovery projects, and issue some type of rule is often helpful. delays must be explained. This delay the plugging of these wells until The Coast Guard is interested in justification and review process also the maximum amount of economically suggestions for use of negotiated keeps senior management informed recoverable oil can be obtained from the rulemaking to make changes to existing reservoir or field. The BLM believes that regulations, or where regulations concerning the progress of developing rules. Also, management must review this amendment will result in currently under development may be substantial additional revenue for the converted to negotiated rulemakings. existing resource commitments and agree to provide adequate resources to States and Federal Government, The Coast Guard is also interested in increase the cumulative amount of develop a rule before initiating one. suggestions of alternative techniques domestic oil production from existing that may facilitate consensual The public is invited to comment wells, increase the percentage of oil rulemaking where a formal negotiated with regard to the use of the negotiated recovery from presently developed rulemaking is not appropriate. rulemaking process for current Coast reservoirs, minimize the necessity of The Coast Guard recently undertook a Guard rulemaking projects. Comments drilling new wells with their additional comprehensive review of its regulatory are also invited on the Coast Guard’s environmental impacts, assist in process and has now promulgated a new participatory rulemaking process. reducing the national balance of trade internal rulemaking instruction. The deficit, and help promote stability in the new instruction embodies certain Attendance at the April 20 meeting is open to the public. Members of the jobs and services related to the domestic reforms that are designed to make the oil industry. Coast Guard’s rulemaking process more public may make oral presentations DATES: Comments should be submitted responsive to public need and more during the meeting. Persons wishing to by May 30, 1995. Comments postmarked timely. make oral presentations should notify The Coast Guard has been using the person listed above under FOR after this date may not be considered as expanded opportunities for early public FURTHER INFORMATION CONTACT no later part of the decisionmaking process in participation before issuing a proposed than the day before the meeting. Written issuance of a final rule. rule. The Coast Guard has held material may be submitted prior to, ADDRESSES: Comments should be sent numerous public meetings on issues of during, or after the meeting. to: Director (140), Bureau of Land concern that might result in regulations. Management, Room 5555, Main Interior Dated: March 23, 1995. The purpose of the meetings is to solicit Building, 1849 C Street, N.W., public participation on a wide range of A.E. Henn, Washington, D.C. 20240. Comments will issues such as: (1) Possible non- Vice Admiral, U.S. Coast Guard, Acting be available for public review in Room regulatory alternatives; (2) is a Commandant. 5555 at the above address during regular regulatory solution technologically [FR Doc. 95–7736 Filed 3–29–95; 8:45 am] business hours (7:45 a.m. to 4:15 p.m.), feasible; (3) what regulatory alternatives BILLING CODE 4910±14±M Monday through Friday. are available; (4) what are the probable FOR FURTHER INFORMATION CONTACT: Dr. benefits; and (5) what are the probable John W. Bebout, Bureau of Land costs? Management, (202) 452–0340. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16425 SUPPLEMENTARY INFORMATION: Existing industry, and the remaining recoverable average gravity of the oil—measured on section 3103.4–1 of Title 43, Code of reserves would be lost. the American Petroleum Institute (API) Federal Regulations, provides two forms This proposed rule would preserve scale—produced from a property every of Federal oil and gas royalty reduction: the contribution of marginal producers 12 months to determine the appropriate on a case-by-case basis upon of heavy crude oil to the national royalty rate. The royalty rate for years application, and for stripper wells. In reserve base. As a result of this relief, subsequent to the initial 12 month order to encourage the greatest ultimate more wells should stay on line (even in period will be the lesser of the newly recovery of oil or gas and in the interest periods of depressed oil prices), fewer calculated royalty rate or the royalty rate of conservation, the Secretary, upon a recoverable reserves should be lost, and determined for the initial year. This determination that it is necessary to there will be less adverse economic provision is necessary to avoid promote development, or that a lease impact on States and local communities. discouraging additional investment in cannot be successfully operated under The DOE has modeled the BLM’s enhanced recovery and workovers that the terms provided therein, may reduce proposed royalty rate reduction for may have the collateral effect of the royalty on an entire leasehold or any heavy crude oil. It is DOE’s conclusion increasing the gravity of the oil portion thereof. The provision that the proposal will benefit all produced from the property. In no case, concerning stripper well properties producers of heavy oil while remaining however, would the royalty rate exceed allows royalty reduction for properties revenue neutral to all oil producing the rate established by the terms of the that produce an average of less than 15 States except California (California lease. barrels of oil per eligible well per well- contains the majority of the nation’s The section amended by this day. heavy oil reserves). Assuming a West proposed rule also provides for royalty The Bureau of Land Management Texas Intermediate Crude oil price of rate reductions for stripper oil wells. (BLM) has reason to believe that $20 per barrel—a price consistent with Many provisions of this proposed rule additional royalty relief for producers of recent oil markets—the proposal can be are essentially the same as the heavy crude oil may be necessary to expected to increase recoverable provisions of the existing regulations reserves in California by around 72 maintain current levels of development, that pertain to stripper wells, except percent, from 132.8 million barrels to promote investment in enhanced that references to ‘‘stripper well’’ have 228.5 million barrels. The increase in recovery efforts, and encourage been replaced with ‘‘heavy oil well.’’ recoverable reserves will ultimately maximum recovery of the resource, thus The similarity between the existing result in a 35 percent increase in warranting royalty reduction under provisions pertaining to stripper wells Federal revenues (royalties and Section 39 of the Mineral Leasing Act and the provisions of this proposed rule individual and corporate taxes) and a 49 (30 U.S.C. 209). could allow for some restructuring of percent increase in California State section 43 CFR 3103.4–1 to reduce the Fluctuating oil prices, combined with revenues. high production costs, have resulted in A provision of the proposed rule overall regulatory text and to increase an uncertain economic future for provides for the termination of clarity. The public is invited to producers of low gravity crude oil. As individual royalty reductions should the comment on whether reorganizing 43 recently as last January, California average price of West Texas CFR 3103.4–1 should be considered in producers of heavy crude were spending Intermediate Crude oil rise to a level preparing the final heavy oil royalty between $9 and $10 to produce a barrel greater than $28 per barrel for a period reduction rule. of crude oil that was typically selling for of at least 6 consecutive months. This The principal author of this proposed between $8.50 and $9 per barrel (from provision is intended to ensure that rule is Dr. John W. Bebout, Senior data provided by the Conservation royalty relief is only provided during Technical Specialist, Division of Fluid Commission of California Oil and Gas periods of low market prices. Minerals, assisted by the staff of the Producers). When depreciation, The proposed rule establishes a Division of Legislation and Regulatory depletion, and amortization costs were sliding scale royalty rate for qualifying Management, Bureau of Land considered, nearly 69% of the state’s heavy-oil-producing properties. The Management. production was uneconomic and more sliding scale is intended to somewhat It is hereby determined that this rule than 13,000 industry and industry- offset the reduced prices paid for oil as does not constitute a major Federal related jobs were at risk (California oil gravity decreases. The reduced action significantly affecting the quality Independent Petroleum Association). royalty rate applies to qualifying heavy of the human environment and that no Heavy crude oil prices have recently oil properties rather than individual detailed statement pursuant to Section risen to the point that the immediate wells, because production is normally 102 (2)(C) of the National crisis in California has passed. Many of not measured for individual oil wells, Environmental Policy Act of 1969 (42 the heavy oil properties remain only and is based on the average gravity of U.S.C. 4332(2)(C)) is required. marginally economic, however, and are the oil weighted by the production of This rule has been reviewed under vulnerable to future down-turns in oil heavy oil from each well within the Executive Order 12866. prices. As many as two-thirds of the property. A weighted average gravity is The BLM has determined that this marginal properties could be lost during used to prevent gravity manipulation by rule will not have a significant a period of sustained low oil prices selectively producing wells on a economic effect on a substantial number (National Petroleum Council Committee property with heavier gravity crude. of small entities under the Regulatory on Marginal Wells/Executive Using a weighted average of oil gravity Flexibility Act (5 U.S.C. 601 et seq.). Summary—Draft). The danger in losing encourages maximum recovery from all This is because the proposed royalty these wells is that, although production wells within a property by removing the rate reduction is voluntary, requires no from individual wells may be small, economic advantage of selective additional paperwork, and applies to all their collective loss would be production. operators regardless of size. significant. The United States would The rule provides that either the Additionally the BLM has determined, lose the opportunity to take advantage operator (as defined at 43 CFR 3100.0– under Executive Order 12630, that the of new technologies being developed by 5) or the payor (as defined at 30 CFR rulemaking will not cause a taking of the Department of Energy (DOE) and 208.2) must calculate the weighted private property. 16426 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules The BLM has certified that these leases or heavy oil properties must be each lease; the calculated new royalty regulations meet the applicable filed by the operator/payor in the proper rate as determined under paragraph standards provided in sections 2(a) and BLM office. It must contain the serial (f)(2) of this section; and copies of the 2(b)(2) of Executive Order 12778. number of the leases, the names of the Purchaser’s Statements (sales receipts) The information collection record title holders, operating rights to document the weighted average API requirements of this rule have been owners (sublessees), and operators for gravity for a property. approved by the Office of Management each lease, the description of lands by (2) The operator must determine the and Budget under 44 U.S.C. 3501 et seq. legal subdivision and a description of weighted average API gravity for a and assigned clearance numbers 1010– the relief requested. property by averaging (adjusted to rate 0090 and 1004–0145. * * * * * of production) the API gravities reported List of Subjects for 43 CFR Part 3100 (e)(1) A heavy oil well property is any on the operator’s Purchaser’s Statement Federal lease or portion thereof Land Management Bureau, Public for the last 3 calendar months preceding segregated for royalty purposes, a Lands—mineral resources, Oil and gas the operator’s written notice of intent to communitization area, or a unit production, Mineral royalties. seek a royalty rate reduction, during participating area, operated by the same each of which at least one sale was held. For the reasons stated in the operator, that produces crude oil with a preamble, and under the authorities This is shown in the following 3 weighted average gravity of less than 20 illustrations: cited below, Part 3100, Group 3100, degrees as measured on the American Subchapter C, Chapter II of Title 43 of Petroleum Institute (API) scale. (i) If a property has oil sales every the Code of Federal Regulations is (2) An oil completion is a completion month prior to requesting the royalty proposed to be amended as set forth from which the energy equivalent of the rate reduction in October of 1994, the below: oil produced exceeds the energy operator must submit Purchaser’s Statements for July, August, and PART 3100ÐOIL AND GAS LEASING equivalent of the gas produced (including the entrained liquefiable September of 1994; 1. The authority citation for part 3100 hydrocarbons) or any completion (ii) If a property has sales only every continues to read as follows: producing oil and less than 60 MCF of 6 months, during the months of March Authority: 30 U.S.C. 181, et seq., 30 U.S.C. gas per day. and September, prior to requesting the 351–359. (f) Heavy oil well property royalty rate rate reduction in October of 1994, the reductions will be administered operator must submit Purchaser’s Subpart 3103ÐFees, Rentals and according to the following requirements Statements for the months of September Royalty and procedures. 1993, and March and September 1994; (1) The Bureau of Land Management and 2. Section 3103.4–1 is amended by requires no specific application form for revising paragraph (b)(1), redesignating the benefits under paragraph (a) of this (iii) If a property has multiple sales paragraph (e) as paragraph (g), and section for heavy oil well properties. each month, the operator must submit adding new paragraphs (e) and (f) to However, the operator/payor must Purchaser’s Statements for every sale for read as follows: notify, in writing, the proper BLM office the 3 entire calendar months § 3103.4±1 Waiver, suspension, or that it is seeking a heavy oil royalty rate immediately preceding the request for a reduction of rental, royalty or minimum reduction. The letter must contain the rate reduction. royalty. serial number of the affected leases (or, (3) The following equation must be * * * * * as appropriate, the communitization used by the operator/ payor for (b)(1) An application for the above agreement number or the unit agreement calculating the weighted average API benefits on other than stripper oil well name); the names of the operators for gravity for a heavy oil well property: ()VGVGVG× +() × +() × 1 1 2 2 n n = Weighted Average API gravity for a property + + VVV1 2 n Where: Vn=Average Production (bbls) of each Gn=Average Gravity (degrees) of each additional well (V3, V4, etc.) over additional well (G3, G4, etc.) over V1=Average Production (bbls) of Well #1 the last 3 calendar months of sales the last 3 calendar months of sales over the last 3 calendar months of G1=Average Gravity (degrees) of oil Example: Lease ‘‘A’’ has 3 wells producing sales produced from Well #1 over the last # at the following average rates over 3 sales V2=Average Production (bbls) of Well 2 3 calendar months of sales months with the following associated average over the last 3 calendar months of G2=Average Gravity (degrees) of oil gravities: Well #1, 4,000 bbls, 13° API; Well sales produced from Well #2 over the last #2, 6000 bbls, 21° API; Well #3, 2,000 bbls, 3 calendar months of sales 14° API. Using the equation above— × + × + × (,)(,)(,)4 000 13 6 000 21 2 000 14 = 17.2 Weighted Average (,,,)4 000+ 6 000 + 2 000 API gravity for property (4) For those properties subject to a API oil gravity for the lands dedicated must be determined in the manner communitization agreement or a unit to that specific communitization prescribed in paragraph (f)(3) of this participating area, the weighted average agreement or unit participating area section and assigned to all property Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16427 subject to Federal royalties in the (A) At the end of each 12-month are payable immediately upon receipt of communitization agreement or unit period, beginning on the first day of the this notice. The BLM will assess late participating area. calendar month the royalty rate payment or underpayment charges in (5) The operator/payor must use the reduction went into effect, the operator/ accordance with 30 CFR 218.102. The following procedures in order to obtain payor must determine the weighted BLM will terminate a royalty rate a royalty rate reduction under this average API oil gravity for the property reduction for a property if BLM section: for that period. The operator/payor must determines that the API oil gravity was (i) Qualifying royalty rate then determine the royalty rate for the manipulated or adulterated by the determination. following year using the table in operator/payor. Terminations of royalty (A) The operator/payor must calculate paragraph (f)(5)(ii) of this section. rate reductions for individual properties the weighted average API gravity for the (B) The operator/payor must compare will be effective on the effective date of property proposed for the royalty rate the newly determined royalty rate to the the royalty rate reduction resulting from reduction in order to verify that the initial qualifying royalty rate. The a manipulated or adulterated API oil property qualifies as a heavy oil well operator/payor must notify BLM of its gravity so that the termination will be property. determinations under this paragraph retroactive to the effective date of the and paragraph (A) of this § 3103.1– (B) Properties that have removed or improper reduction. The operator/payor 4(f)(5)(iv). The lower of the two rates sold oil less than 3 times in their must pay the difference in royalty will be used for the new 12-month productive life may still qualify for this resulting from the retroactive period. The new royalty rate will not royalty rate reduction. However, no application of the non-manipulated rate. become effective until the first day of further reductions will be granted until The BLM will assess late payment or the second month after BLM receives the property has a sales history of at underpayment charges in accordance notification, and will remain effective least 3 production months (see with 30 CFR 218.102. for 12 calendar months. Notification paragraph (f)(5)(iii) of this section). (6) The BLM may suspend or must include copies of the Purchaser’s (ii) Calculating the qualifying royalty terminate all royalty reductions granted Statements (sales receipts) and be rate. If the Federal leases or portions under this paragraph (f) upon 6 month’s mailed to the proper BLM office. If the thereof (e.g., communitization or unit notice in the Federal Register when operator does not notify the BLM of the agreements) qualify as heavy oil BLM determines that— new royalty rate within 60 days after the property, the operator/payor must use (i) The average oil price remains end of the subject 12-month period, the the weighted average API gravity above $28 per barrel over a period of 6 royalty rate for the heavy oil well rounded down to the nearest whole consecutive months (based on the West property will remain at the previous degree (e.g., 11.7 degrees API becomes Texas Intermediate Crude average royalty rate until the next 12-month 11 degrees), and determine the posted prices and adjusted for inflation anniversary. using the implicit price deflator for appropriate royalty rate from the (C) The royalty rate will never exceed following table: gross national product with 1991 as the the heavy oil property royalty rate base year), or calculated during the first qualifying ROYALTY RATE REDUCTION FOR (ii) After September 10, 1997, the period unless and until BLM terminates royalty rate reductions authorized by HEAVY OIL all heavy oil royalty rate reductions this paragraph (f) have not been not under paragraph (f)(6) (i) or (ii) of this Weighted average API gravity Royalty rate effective in reducing the loss of (degrees) (percent) section. otherwise recoverable reserves resulting (v) Prohibition. Any heavy oil from wells being shut in or abandoned. 6 ...... 0.5 property reporting an API average oil (7) The heavy oil well property 7 ...... 1.4 gravity determined by BLM to have royalty rate reduction applies to all 8 ...... 2.2 resulted from any manipulation of Federal oil produced from a heavy oil 9 ...... 3.1 normal production or adulteration of oil property. 10 ...... 3.9 sold from the property will not receive (8) If the lease royalty rate is lower 11 ...... 4.8 the benefit of a royalty rate reduction 12 ...... 5.6 than the benefits provided in this heavy under this paragraph (f). oil well property royalty rate reduction 13 ...... 6.5 (vi) Certification. The operator/payor 14 ...... 7.4 program, the lease rate prevails. 15 ...... 8.2 must use the applicable royalty rate (9) If the property qualifies for a 16 ...... 9.1 when submitting the required royalty stripper well property royalty rate 17 ...... 9.9 reports/payments to the Minerals reduction, as well as a heavy oil well 18 ...... 10.8 Management Service (MMS). In property reduction, the lower of the two 19 ...... 11.6 submitting royalty reports/payments rates applies. 20 ...... 12.5 using a royalty rate reduction (10) The operator/payor must authorized by this paragraph (f), the (iii) New royalty rate effective date. separately calculate the royalty for gas operator/payor must certify that the API production (including condensate The new royalty rate will be effective on oil gravity for the initial and subsequent the first day of production 2 months produced in association with gas) for oil 12-month periods was not subject to completions using the lease royalty rate. after BLM receives notification by the manipulation or adulteration and the operator/payor. The rate will apply to (11) The minimum royalty provisions royalty rate was determined in of § 3103.3–2 will continue to apply. all oil production from the property for accordance with the requirements and the next 12 months. If the API oil procedures of this paragraph (f). * * * * * gravity is 20 degrees or greater, the (vii) Agency action. If an operator/ Dated: October 11, 1994. royalty rate will be the rate in the lease payor incorrectly calculates the royalty Bob Armstrong, terms. rate, the BLM will determine the correct Assistant Secretary of the Interior. (iv) Royalty rate determinations in rate and notify the operator/payor in [FR Doc. 95–7794 Filed 3–29–95; 8:45 am] subsequent years. writing. Any additional royalties due BILLING CODE 4310±84±P 16428 Notices Federal Register Vol. 60, No. 61 Thursday, March 30, 1995 This section of the FEDERAL REGISTER assurance that they are getting the 2. The skin and bones shall be contains documents other than rules or quality they want. removed in a neat manner, without proposed rules that are applicable to the Poultry producers and processors are undue mutilation of adjacent muscle. public. Notices of hearings and investigations, 3. Boneless/skinless legs and committee meetings, agency decisions and continually developing new, innovative rulings, delegations of authority, filing of products. Chicken and turkey, in drumsticks shall be free of tendons petitions and applications and agency particular, have been transformed into a extending more than one-half inch statements of organization and functions are myriad of boneless and/or skinless beyond the meat tissue, cartilage, blood examples of documents appearing in this products, increasing poultry’s share of clots, bruises, and discolorations other section. the consumer’s food dollar and than slight discolorations, provided they responding to consumer demand for do not detract from the appearance of food with more built-in convenience the product. DEPARTMENT OF AGRICULTURE and less fat. Current regulations (7 CFR 4. Minor flesh abrasions on the outer Part 70) provide grade standards for muscle surface due to preparation Agricultural Marketing Service boneless poultry breasts, thighs, and techniques and trimming are permitted tenderloins (§ 70.231), as well as for provided the outer surface remains [Docket No. PY±95±001] skinless carcasses and parts (§ 70.232). smooth with no angular cuts or tears. Holes resulting from the removal of the Tentative Voluntary Poultry Grade The Agency has received several patella (knee cap) are permitted, Standards industry requests to permit the grade identification of boneless/skinless provided the bulk of the thigh and drum AGENCY: Agricultural Marketing Service, poultry legs and drumsticks. These remain intact and connected. USDA. products are currently being marketed 5. Trimming on the inner muscle ACTION: Notice. ungraded because there are no grade surface is permitted, provided it results standards for them. The Agency has in a relatively smooth appearance. SUMMARY: The Agricultural Marketing worked with members of the industry to 6. Trimming is permitted around the Service (AMS) is announcing that it is develop tentative grade standards which outer edges of the muscle, provided the approving the test marketing of USDA will result in a high-quality product. trimming results in a portion that grade identified boneless/skinless The Agency is ready to move forward to approximates the same symmetrical poultry legs and drumsticks, based on a test marketing phase for boneless/ appearance and meat yield of the tentative grade standards. skinless poultry legs and drumsticks. original part. DATES: This test-market period begins The Agency recognizes that before 7. Boneless/skinless drumsticks may March 30, 1995 and ends April 1, 1996. new standards of quality can be be further separated by a single cut FOR FURTHER INFORMATION CONTACT: established or current standards of parallel to the tibiotarsus and labeled as Larry W. Robinson, Chief, Grading quality can be amended, appropriate boneless/skinless drumstick halves. Branch, Poultry Division, 202–720– investigation is needed. This includes Dated: March 22, 1995. 3271. the test marketing of experimental packs Kenneth C. Clayton, of grade-identified poultry products to SUPPLEMENTARY INFORMATION: Acting Administrator. determine production requirements and [FR Doc. 95–7724 Filed 3–29–95; 8:45 am] Background consumer acceptance, and to permit the BILLING CODE 3410±02±P Poultry grading is a voluntary collection of other necessary data. program provided under the Current regulations (§ 70.3) provide the Agricultural Marketing Act of 1946, as Agency with the flexibility needed to Animal and Plant Health Inspection amended, and is offered on a fee-for- permit such experimentation, so that Service service basis. It is designed to assist the new procedures and grading techniques may be tested. orderly marketing of poultry products. [Docket No. 95±023±1] Quality in practical terms refers to the The Agency is granting permission for usability, desirability, and value of a the test marketing of grade-identified Receipt of Petition for Determination of product, as well as its marketability. boneless/skinless poultry legs and Nonregulated Status for Genetically Poultry grade standards identify and drumsticks based on tentative standards Engineered Cotton measure degrees of quality in poultry for one year. At the expiration of this products. They permit important quality one-year period, the Agency will then AGENCY: Animal and Plant Health attributes to be evaluated uniformly and evaluate the test results to determine if Inspection Service, USDA. accurately; they provide a way for the current poultry grading regulations ACTION: Notice. buyers and sellers to negotiate using a should be amended, through notice-and- common language. comment rulemaking, to include the SUMMARY: We are advising the public Once poultry has been graded following tentative standards. that the Animal and Plant Health according to these standards, it may be Tentative Poultry Grade Standards for Inspection Service has received a identified with the USDA grademark. Boneless/Skinless Poultry Legs and petition from the Monsanto Company Over the years, processors have found it Drumsticks—A Quality seeking a determination of nonregulated advantageous to market grade-identified status for cotton lines designated as poultry products and consumers have 1. The leg or drum shall be cut as 1445 and 1698 that have been come to rely on the USDA grademark as specified in § 70.210(e)(6). genetically engineered for tolerance to Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16429 the herbicide glyphosate. The petition Company of St. Louis, MO, requesting a Protection Agency (EPA) is responsible has been submitted in accordance with determination of nonregulated status for the regulation of pesticides under our regulations concerning the under 7 CFR part 340 for cotton lines the Federal Insecticide, Fungicide, and introduction of certain genetically designated as 1445 and 1698 that have Rodenticide Act (FIFRA), as amended (7 engineered organisms and products. In been genetically engineered for U.S.C. 135 et seq.). FIFRA requires that accordance with those regulations, we tolerance to the herbicide glyphosate. all pesticides, including herbicides, be are soliciting public comments on As described in the petition, cotton registered prior to distribution or sale, whether these cotton lines present a (Gossypium hirsutum L.) lines 1445 and unless exempt by regulation. Plants that plant pest risk. 1698 contain the gene for CP4 EPSPS (5- have been genetically modified for DATES: Written comments must be enolpyruvylshikimate-3-phosphate tolerance or resistance to herbicides are received on or before May 30, 1995. synthase) isolated from Agrobacterium not regulated under FIFRA because the ADDRESSES: Please send an original and sp. strain CP4, which encodes an plants themselves are not considered three copies of your comments to enzyme conferring tolerance to pesticides. glyphosate, the active ingredient in In cases in which the genetically Docket No. 95–023–1, Regulatory Analysis and Development, PPD, Roundup herbicide. Cotton lines 1445 modified plants allow for a new use of APHIS, Suite 3C03, 4700 River Road and 1698 also contain the nptII gene, an herbicide or involve a different use Unit 118, Riverdale, MD 20737–1228. which encodes the selectable marker pattern for the herbicide, EPA must Please state that your comments refer to neomycin phosphotransferase II, and approve the new or different use. In Docket No. 95–023–1. A copy of the the aad gene, which encodes the conducting such an approval, EPA petition and any comments received bacterial selectable marker 3’’(9)-O- considers the possibility of adverse may be inspected at USDA, room 1141, aminoglycoside adenylyltransferase. effects to human health and the South Building, 14th Street and Expression of the nptII gene is driven by environment from the use of this Independence Avenue SW., the 35S promoter derived from the plant herbicide. When the use of the herbicide on the Washington, DC, between 8 a.m. and pathogen cauliflower mosaic virus. The genetically modified plant would result 4:30 p.m., Monday through Friday, subject cotton lines were produced in an increase in the residues of the except holidays. Persons wishing access through the use of Agrobacterium herbicide in a food or feed crop for to that room to inspect the petition or tumefaciens transformation, a full which the herbicide is currently comments are asked to call in advance description of which is provided in the registered, or in new residues in a crop of visiting at (202) 690–2817. petition. The subject cotton lines are currently for which the herbicide is not currently FOR FURTHER INFORMATION CONTACT: Dr. considered regulated articles under the registered, establishment of a new Sivramiah Shantharam, Branch Chief, regulations in 7 CFR part 340 because tolerance or a revision of the existing Biotechnology Permits, BBEP, APHIS, they contain gene sequences (vectors, tolerance would be required. Residue Suite 5B05, 4700 River Road Unit 147, vector agents, promoters, and tolerances for pesticides are established Riverdale, MD 20737–1228; (301) 734– terminators) derived from plant by the EPA under the Federal Food, 7612. To obtain a copy of the petition, pathogens. Cotton lines 1445 and 1698 Drug, and Cosmetic Act (FFDCA) (21 contact Ms. Kay Peterson at (301) 734– were evaluated in field trials conducted U.S.C. 201 et seq.), and the Food and 7601. under APHIS permits or notifications in Drug Administration (FDA) enforces SUPPLEMENTARY INFORMATION: The 1992, 1993, and 1994. In the process of tolerances set by the EPA under the regulations in 7 CFR part 340, reviewing the applications for those FFDCA. ‘‘Introduction of Organisms and field trials, APHIS determined that the The FDA published a statement of Products Altered or Produced Through vectors were disarmed, and that the policy on foods derived from new plant Genetic Engineering Which Are Plant trials did not present a risk of plant pest varieties in the Federal Register on May Pests or Which There Is Reason to introduction or dissemination. 29, 1992 (57 FR 22984–23005). The FDA Believe Are Plant Pests,’’ regulate, In the Federal Plant Pest Act, as statement of policy includes a among other things, the introduction amended (7 U.S.C. 150aa et seq.), ‘‘plant discussion of the FDA’s authority for (importation, interstate movement, or pest’’ is defined as ‘‘any living stage of: ensuring food safety under the FFDCA, release into the environment) of Any insects, mites, nematodes, slugs, and provides guidance to industry on organisms and products altered or snails, protozoa, or other invertebrate the scientific considerations associated produced through genetic engineering animals, bacteria, fungi, other parasitic with the development of foods derived that are plant pests or that there is plants or reproductive parts thereof, from new plant varieties, including reason to believe are plant pests. Such viruses, or any organisms similar to or those plants developed through the genetically engineered organisms and allied with any of the foregoing, or any techniques of genetic engineering. products are considered ‘‘regulated infectious substances, which can In accordance with § 340.6(d) of the articles.’’ directly or indirectly injure or cause regulations, we are publishing this The regulations in § 340.6(a) provide disease, or damage in any plants or parts notice to inform the public that APHIS that any person may submit a petition thereof, or any processed, manufactured will accept written comments regarding to the Animal and Plant Health or other products of plants.’’ APHIS the Petition for Determination of Inspection Service (APHIS) seeking a views this definition very broadly. The Nonregulated Status from any interested determination that an article should not definition covers direct or indirect person for a period of 60 days from the be regulated under 7 CFR part 340. injury, disease or damage not just to date of this notice. The petition and any Paragraphs (b) and (c) of § 340.6 agricultural crops, but also to plants in comments received are available for describe the form that a petition for general, for example, native species, as public review, and copies of the petition determination of nonregulated status well as to organisms that may be may be ordered (see the ADDRESSES must take and the information that must beneficial to plants, for example, section of this notice). be included in the petition. honeybees, rhizobia, etc. After the comment period closes, On February 14, 1995, APHIS Cotton lines 1445 and 1698 are also APHIS will review the data submitted received a petition (APHIS Petition No. currently subject to regulation by other by the petitioner, all written comments 95–045–01p) from the Monsanto agencies. The U.S. Environmental received during the comment period, 16430 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices and any other relevant information. notices of decisions is in addition to Home, Idaho Based on the available information, direct notice to those who have Boise District Ranger decisions: APHIS will furnish a response to the requested notice in writing and to those The Idaho Statesman, Boise, Idaho petitioner, either approving the petition known to be interested and affected by Idaho City District Ranger decisions: in whole or in part, or denying the a specific decision. The Idaho Statesman, Boise, Idaho petition. APHIS will then publish a The legal notice is to identify: the Cascade District Ranger decisions: notice in the Federal Register decision by title and subject matter; the The Advocate, Cascade, Idaho announcing the regulatory status of the date of the decision; the name and title Lowman District Ranger decisions: Monsanto Company’s cotton lines 1445 of the official making the decision; and The Idaho City World, Idaho City, and 1698 and the availability of APHIS’ how to obtain copies of the decision. In Idaho written decision. addition, the notice is to state the date Emmett District Ranger decisions: Authority: 7 U.S.C. 150aa–150jj, 151–167, the appeal period begins which is the The Messenger-Index, Emmett, Idaho and 1622n; 31 U.S.C. 9701; 7 CFR 2.17, 2.51, day following publication of the notice. Bridger-Teton Forest Supervisor and 371.2(c). The timeframe for appeal shall be decisions: Done in Washington, DC, this 24th day of based on the date of publication of the March 1995. notice in the first (principal) newspaper Bridger-Teton Forest Supervisor Terry L. Medley, listed for each unit. decisions: Acting Administrator, Animal and Plant The newspapers to be used are as Casper Star-Tribune, Casper, Health Inspection Service. follows: Wyoming [FR Doc. 95–7835 Filed 3–29–95; 8:45 am] Jackson District Ranger decisions: Regional Forester, Intermountain BILLING CODE 3410±34±P Casper Star-Tribune, Casper, Region Wyoming For decisions made by the Regional Buffalo District Ranger decisions: Forest Service Forester affecting National Forests Casper Star-Tribune, Jackson, in Idaho: Wyoming Newspaper Used for Publication of The Idaho Statesman, Boise, Idaho Big Piney District Ranger decisions: Legal Notice of Appealable Decisions For decisions made by the Regional Casper Star-Tribune, Jackson, for Intermountain Region, Utah, Idaho, Forester affecting National Forests Wyoming Nevada, and Wyoming in Nevada: Pinedale District Ranger decisions: Casper Star-Tribune, Casper, AGENCY: Forest Service, USDA. The Reno Gazette-Journal, Reno, Nevada Wyoming ACTION: Notice. For decisions made by the Regional Greys River District Ranger decisions: SUMMARY: This notice lists the Forester affecting National Forests Casper Star-Tribune, Casper, newspapers that will be used by all in Wyoming: Wyoming ranger districts, forests, and the Casper Star-Tribune, Casper, Kemmerer District Ranger decisions: Regional Office of the Intermountain Wyoming Casper Star-Tribune, Casper, Region to publish legal notice of all For decisions made by the Regional Wyoming decisions subject to appeal under 36 Forester affecting National Forests Caribou National Forest CFR 215 and 36 CFR 217. The intended in Utah: effect of this action is to inform Standard-Examiner, Ogden, Utah Caribou Forest Supervisor decisions: interested members of the public which If the decision made by the Regional Idaho State Journal, Pocatello, Idaho newspapers will be used to publish Forester affects all National Forests Soda Springs District Ranger decisions: legal notices of decisions, thereby in the Intermountain Region, it will Idaho State Journal, Pocatello, Idaho allowing them to receive constructive appear in: Montpelier District Ranger decisions: notice of a decision, to provide clear Standard-Examiner, Ogden, Utah Idaho State Journal, Pocatello, Idaho Malad District Ranger decisions: evidence of timely notice, and to Ashley National Forest achieve consistency in administering Idaho State Journal, Pocatello, Idaho the appeals process. Ashley Forest Supervisors decisions: Pocatello District Ranger decisions: Vernal Express, Vernal, Utah Idaho State Journal, Pocatello, Idaho DATES: Publication of legal notices in Vernal District Ranger decisions: the listed newspapers will begin with Challis National Forest Vernal Express, Vernal, Utah decisions subject to appeal that are Flaming Gorge District Ranger for Challis Forest Supervisor decisions: made on or after April 1, 1995. The list decisions affecting Wyoming: The Challis Messenger, Challis, Idaho of newspapers will remain in effect Casper Star Tribune, Casper, Middle Fork District Ranger decisions: until October 1995 when another notice Wyoming The Challis Messenger, Challis, Idaho will be published in the Federal Flaming Gorge District Ranger for Challis District Ranger decisions: Register. decisions affecting Utah: The Challis Messenger, Challis, Idaho FOR FURTHER INFORMATION CONTACT: Vernal Express, Vernal, Utah Yankee Fork District Ranger decisions: K. Dale Torgerson, Regional Appeals Roosevelt and Duchesne District Ranger The Challis Messenger, Challis, Idaho and Litigation Manager, Intermountain decisions: Lost River District Ranger decisions: Region, 324 25th Street, Ogden, UT Uintah Basin Standard, Roosevelt, The Challis Messenger, Challis, Idaho 84401, phone (801) 625–5279. Utah SUPPLEMENTARY INFORMATION: The Dixie National Forest administrative appeal procedures 36 Boise National Forest Dixie Forest Supervisor decisions: CFR part 215 and 36 CFR part 217, of Boise Forest Supervisor decisions: The Daily Spectrum, St. George, Utah the Forest Service require publication of The Idaho Statesman, Boise, Idaho Pine Valley District Ranger decisions: legal notice in a newspaper of general Mountain Home District Ranger The Daily Spectrum, St. George, Utah circulation of all decisions subject to decisions: Cedar City District Ranger decisions: appeal. 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Moab District Ranger decisions: Bridgeport District Ranger decisions: The Review-Herald, Mammoth Lakes, Agenda items include: (1) Context of the The Times Independent, Moab, Utah California Advisory Committee and background on Monticello District Ranger decisions: Tonopah District Ranger decisions: the President’s Forest Plan; (2) The San Juan Record, Monticello, Tonopah Times Bonanza-Goldfield introduction of members; (3) operating Utah News, Tonopah, Nevada guidelines and ground rules; (4) mission Payette National Forest Las Vegas District Ranger decisions: and purpose of the Province Advisory Las Vegas Review Journal, Las Vegas, Committee; (5) relationship to the PIEC; Payette Forest Supervisor decisions: Nevada and (6) Open public forum. All Idaho Statesman, Boise, Idaho Deschutes Province Advisory Weiser District Ranger decisions: Uinta National Forest Committee meetings are open to the Signal American, Weiser, Idaho Uinta Forest Supervisor decisions: public. 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The Recorder-Herald, Salmon, Idaho Wasatch-Cache Forest Supervisor [FR Doc. 95–7749 Filed 3–29–95; 8:45 am] North Fork District Ranger decisions: decisions: BILLING CODE 3410±11±M 16432 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices DEPARTMENT OF COMMERCE Respondents Concern Oriana, Gerald Granular magnesium, turnings, and Metals, Greenwich Metals, Hochschild powder are classifiable under International Trade Administration Partners, as well as petitioners,2 filed Harmonized Tariff Schedule of the [A±823±806] case and rebuttal briefs. A public United States (HTSUS) subheading hearing was held on February 24, 1995. 8104.30.00. Magnesium granules and turnings (also referred to as chips) are Notice of Final Determination of Sales Scope of Investigation3 at Less Than Fair Value: Pure produced by grinding and/or crushing Magnesium From Ukraine The product covered by this primary magnesium and thus have the investigation is pure primary same chemistry as primary magnesium. AGENCY: Import Administration, magnesium regardless of chemistry, Although not susceptible to precise International Trade Administration, form or size, unless expressly excluded measurement because of their irregular Department of Commerce. from the scope of this investigation. shapes, turnings or chips are typically EFFECTIVE DATE: March 30, 1995. Primary magnesium is a metal or alloy produced in coarse shapes and have a FOR FURTHER INFORMATION CONTACT: containing by weight primarily the maximum length of less than 1 inch. Ellen Grebasch, Dorothy Tomaszewski element magnesium and produced by Although sometimes produced in larger or Erik Warga, Office of Antidumping decomposing raw materials into sizes, granules are more regularly Investigations, Import Administration, magnesium metal. Pure primary shaped than turnings or chips, and have International Trade Administration, magnesium is used primarily as a a typical size of 2mm in diameter or U.S. Department of Commerce, 14th chemical in the aluminum alloying, smaller. Street and Constitution Avenue, N.W., desulfurization, and chemical reduction Powders are also produced from Washington, D.C. 20230; telephone: industries. In addition, pure primary grinding and/or crushing primary (202) 482–3773, (202) 482–0631 or (202) magnesium is used as an input in magnesium and have the same 482–0922, respectively. producing magnesium alloy. chemistry as primary magnesium, but Pure primary magnesium encompasses: are even smaller than granules or Final Determination (1) products that contain at least 99.95% turnings. Powders are defined by the We determine that imports of pure primary magnesium, by weight (generally Section Notes to Section XV, the section magnesium from Ukraine are being, or referred to as ‘‘ultra-pure’’ magnesium); of the HTSUS in which subheading are likely to be, sold in the United States (2) products containing less than 99.95% 8104.30.00 appears, as products of at less than fair value (‘‘LTFV’’), as but not less than 99.8% primary magnesium, which 90 percent or more by weight by weight (generally referred to as ‘‘pure’’ provided in section 733 of the Tariff Act magnesium); and will pass through a sieve having a mesh of 1930, as amended (‘‘the Act’’). The (3) products (generally referred to as ‘‘off- aperture of 1mm. (See HTSUS, Section estimated margins are shown in the specification pure’’ magnesium) that contain XV Base Metals and Articles of Base ‘‘Continuation of Suspension of 50% or greater, but less than 99.8% primary Metals, Note 6(b).) Accordingly, the Liquidation’’ section of this notice. magnesium, by weight, and that do not exclusion of magnesium turnings, conform to ASTM specifications for alloy granules and powder from the scope Case History magnesium. includes products having a maximum Since the preliminary determination ‘‘Off-specification pure’’ magnesium physical dimension (i.e., length or on October 27, 1994 (59 FR 55420, is pure primary magnesium containing diameter) of 1 inch or less. November 7, 1994), the following events magnesium scrap, secondary The products subject to this have occurred: magnesium, oxidized magnesium or investigation are classifiable under In December 1994, we issued sections impurities (whether or not intentionally subheadings 8104.11.00, 8104.19.00 and A and C of our antidumping added) that cause the primary 8104.20.00 of the HTSUS. Although the questionnaire 1 to exporters Greenwich magnesium content to all below 99.8% HTSUS subheadings are provided for Metals and Hochschild Partners. These by weight. It generally does not contain, convenience and customs purposes, our companies provided responses to these individually or in combination, 1.5% or written description of the scope is questionnaires in December 1994 and more, by weight, of the following dispositive. January 1995. alloying elements: aluminum, Period of Investigation Verifications were conducted at the manganese, zinc, silicon, thorium, Chicago, Illinois, facilities of MG Metals zirconium and rare earths. The period of investigation (‘‘POI’’) is from December 6 to December 7, 1994; Excluded from the scope of this October 1, 1993, through March 31, at Gerald Metals’ Lausanne, investigation are alloy primary 1994. Switzerland, offices from December 13 magnesium, primary magnesium Fair Value Comparisons to December 14, 1994, and at its anodes, granular primary magnesium Stamford, Conn., offices on January 24 (including turnings and powder), and A. Participating Respondents and January 25, 1995; at Concern secondary magnesium. To determine whether sales of pure Oriana’s (formerly Concern Chlorvinyl) magnesium from Ukraine to the United facilities in Kalush, Ukraine; and at the 2 Magnesium Corporation of America; Dow States by Gerald Metals, Hochschild Chemical; International Union of Operating Greenwich, Conn., facilities of Partners, and MG Metals were made at Greenwich Metals from January 30 to Engineers, Local 564; and United Steel Workers of America, Local 8319. less than fair value, we compared the January 31, 1995. 3 The scope of this investigation has been United States price (‘‘USP’’) to the On January 31, 1995, we amended our modified since the preliminary determination in foreign market value (‘‘FMV’’), as preliminary determination to correct for order to clarify the distinctions between pure specified in the ‘‘United States Price’’ certain ministerial errors (60 FR 7519, magnesium and alloy magnesium. See Comment 5 in the ‘‘Interested Party Comments’’ section of this and ‘‘Foreign Market Value’’ sections of February 8, 1995). notice, below, for a discussion of the scope this notice. modification. For a detailed definition of alloy Verification revealed that, for its POI 1 Section A requested general information on each magnesium, see the ‘‘Scope of Investigation’’ company; and section C requested information on, section of the concurrent investigations of alloy sales to U.S. companies, there were no and a listing of, U.S. sales made during the period magnesium from the People’s Republic of China instances where Greenwich Metals’ role of investigation (‘‘POI’’). and the Russian Federation. in the sales process was that of being the Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16433 first company to sell Ukraine-produced United States Price are significant producers of comparable pure magnesium to a U.S. customer. merchandise. We based USP for third-country In our preliminary determination, we That is, all subject merchandise exporters Gerald Metals and Hochschild purchased by Greenwich was done so selected Indonesia as our primary on purchase price, in accordance with surrogate country and resorted to Egypt on terms that made Greenwich the U.S. section 772(b) of the Act, because the customer of its supplier. Accordingly, for certain surrogate values where subject merchandise was sold directly values in Indonesia were either Greenwich will be subject to the by the exporters to unrelated parties in ‘‘Ukraine-wide’’ deposit rate. unavailable or out of date. These the United States prior to importation countries are appropriate surrogate B. All Other Companies into the United States and because countries for the reasons set forth in our exporter’s sales price (‘‘ESP’’) preliminary determination. Since we All companies to which a methodology was not indicated by other find no compelling reason to change questionnaire was issued are considered circumstances. this selection, we have continued to mandatory respondents in this For Gerald Metals and Hochschild, we base FMV on the values of the proceeding. Several companies in calculated purchase price based on appropriate factors of production as Ukraine either failed to respond to packed, CIF, delivered, or FOT valued in Indonesia or Egypt. either our initial requests for warehouse prices to unrelated information about U.S. sales, or failed to purchasers in the United States. For B. Factors of Production respond to our request for permission to Gerald Metals, we made the following In accordance with section 773(c) of verify. These companies include: deductions (where appropriate): ocean the Act, we calculated FMV, with regard Zaporozhye Titanium-Magnesium Plant, freight; foreign brokerage; U.S. to the exporters’ U.S. sales of a Ukrainian producer; and Alex, Mages, Brokerage and handling charges; U.S. magnesium produced by Concern and Intreid, Ukrainian exporters. duty; and U.S. inland freight. For Oriana, based on factors of production Accordingly, we have based the Hochschild Partners, we made the cited in the preliminary determination, ‘‘Ukraine-wide’’ duty deposit rate— following deductions (where making adjustments based on applicable to all companies except those appropriate) for foreign brokerage; ocean verification findings (see Final that (1) made POI U.S. sales of subject freight; marine insurance; and U.S. Calculation Memorandum). With regard merchandise, and (2), participated in inland freight. to the exporters’ U.S. sales of this investigation—on the best We based USP for MG Metals, a third- magnesium produced by the other information available (‘‘BIA’’). country exporter, on ESP, in accordance Ukraine manufacturer. Zaporozhye with section 772(c) of the Act, because Titanium-Magnesium Plant (from which In determining what to use as BIA, the the subject merchandise was sold to the we did not receive factors of production Department follows a two-tiered first unrelated purchaser after data), we did not calculate FMV; methodology, whereby the Department importation into the United States. instead, we assigned an uncooperative normally assigns lower margins to We calculated ESP based on packed BIA margin which equalled the highest respondents that cooperated in an delivered prices. For MG Metals, we adjusted alleged margin cited in our investigation and margins based on made the following deductions (where initiation notice (as indicated in our more adverse assumptions for those appropriate) for ocean freight; marine amended preliminary determination). respondents, like the non-participating insurance; foreign brokerage; U.S. The factors used to produce pure respondents in this investigation, which inland freight; U.S. inland insurance, magnesium include materials, labor, did not cooperate in an investigation. As U.S. duties; U.S. brokerage and and energy. To calculate FMV, the 4 outlined in Coumarin, where, as here, handling; and additional packing costs. reported quantities were multiplied by a company refuses to provide the From each exporter’s U.S. price, we the appropriate surrogate values for the information requested in the form continued to deduct foreign inland different inputs. (For a complete required, or otherwise significantly freight between the factory and the analysis of surrogate values, see our impedes the Department’s investigation, reported intermediate destination (e.g., Final Calculation Memorandum.) An it is appropriate for the Department to Rotterdam) using the per-ton foreign imputed factory overhead figure was assign to that company the higher of (1) inland freight figure reported in the also included in the FMV calculation the highest calculated rate of any petition in order to account for this based on a percentage of materials, labor respondent in the investigation, (2) the movement charge from producer to the and energy. We granted a by-product highest margin alleged in the petition, intermediate destination. offset against the cost of manufacturing (i.e., the sum of materials, labor, energy or (3) the margin from the preliminary Minor adjustments were made to the and factory overhead). We then added determination for that firm. reported U.S. sales of these exporters the statutory minimum imputed Accordingly, we have set the Ukraine- pursuant to our findings at verification amounts for general expenses and profit. wide deposit rate at 104.27 percent, ad (see Final Calculation Memorandum, on We followed the same methodology for valorem. This margin represents the file in room B–099 of the Main packing costs used at the preliminary highest margin in the petition, as Commerce Department Building, for determination; however, adjusted the recalculated by the Department for details of adjustments). purposes of initiating this proceeding packing material cost so as not to double and as further adjusted to account for Foreign Market Value count certain materials. Additionally, we used the Indonesian unskilled labor factors of production listed in the A. Surrogate Country Selection petition that were not valued at the time rate for packing labor. of initiation, but for which information Section 773(c) of the Act requires the We have used the same surrogate is on the record upon which to base a Department to value the factors of values used in the preliminary surrogate value. production, to the extent possible, in determination with the exception of one or more market economy countries certain corrections made based on 4 Final Determination of Sales at Less Than Fair that are at a level of economic verification or interested party Value: Coumarin from the People’s Republic of development comparable to that of the comments. Based on verification, we China (59 FR 66895, December 28, 1994). non-market-economy country and that adjusted the values of magnesium 16434 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices chloride and chlorine to reflect the realistic and accurate surrogate for the the Department assign Greenwich the actual purity used in the production (or value of magnesium chloride used in ‘‘Ukraine-wide’’ rate and assign the yielded as a by-product) of subject the production of magnesium. European trader the BIA rate for not merchandise. We recalculated certain Petitioners counter that the participating in this investigation. reported inland freight distances Department should not use a surrogate Greenwich counters that it properly between factory and input supplier value for hydrated carnallite, a reported the sales in question as its own based on verified distances. We used completely different material, when a U.S. sales. Greenwich argues that the labor rates from Indonesia specific to nonaberrational price is available for a European trader did not know the skilled and unskilled labor. One commodity category containing the ultimate destination of the merchandise material input, considered a direct actual materials used in the production because Greenwich did not inform the material for the preliminary process. Specifically, petitioners European trader where to ship the determination, has not been accounted contend that the Indonesian price for merchandise until after the terms of sale for in our final determination because it magnesium chloride and the petition’s were fixed. Greenwich also argues that was discovered at verification to be an price for hydrated carnallite cannot be the European trader did not know the indirect material. compared. Petitioners also contend that ultimate destination of subject the range of import prices for merchandise at the time the terms of the Verification magnesium chloride from other sale were fixed because Greenwich As provided in Section 776(b) of the potential surrogate countries ($159 to bought the merchandise on a ‘‘duty- Act, we verified the information $1,000/per metric ton) demonstrates unpaid’’ basis—leaving Greenwich the submitted by respondents for use in our that the price used in the preliminary option of selling the merchandise in final determination. We used standard determination ($152.89 per metric ton) either the U.S. market or in a third verification procedures, including is conservative rather than aberrational. country. examination of relevant accounting and Petitioners note as well that the DOC Position production records and original source Indonesian import price fits into the documents provided by respondents. high preference category of the We agree with petitioners. First, the record does not support Greenwich’s Interested Party Comments Department’s hierarchy for surrogate values: it is publicly available claim that it did not inform the Comment 1: BIA for Refusal to Permit information, it is non-export value, and European trader where to ship the Verification it is contemporaneous to the POI, unlike merchandise until after the terms of sale Petitioners argue that the Department the petition value for a totally different were fixed. Rather, as verification should assign a margin based on total product suggested by respondents. revealed, the contract setting the terms of sale included as identification of the BIA to all companies that reported DOC Position having made no POI sales of subject shipment destination. Second, the fact merchandise, but that did not indicate We agree with petitioners that the that sales terms are ‘‘duty unpaid’’ is far in their response to the Department’s record does not support a finding that outweighed by the fact that the inquiry that they would permit the surrogate value for magnesium merchandise was shipped to the United verification of this information. chloride is aberrational or otherwise States and the absence of any indication inappropriate. First, it is not accurate to that the seller could legitimately expect DOC Position characterize magnesium chloride as such sales not to enter the U.S. market. We agree with petitioners and have ‘‘but one cost component’’ of hydrated Accordingly, we have not calculated a assigned a margin based on total BIA to carnallite. The fact that hydrated company-specific margin for Greenwich those companies that either refused carnallite is processed to obtain because we find that it did not make any verification or did not respond to our magnesium chloride (rather than vice U.S. sales of the subject merchandise request to verify a report of no sales. versa) makes a higher price for during the POI. Instead, Greenwich and magnesium chloride logical. Second, its European supplier will both be Comment 2: Surrogate Value for although import prices in other subject to the ‘‘Ukraine-wide’’ rate. Magnesium Chloride surrogate countries vary, Concern Concern Oriana asserts that the Oriana has not demonstrated that this Comment 4: Completeness of Ukraine surrogate value used for magnesium variance should be construed as Magnesium Industry’s Response chloride in the preliminary evidence that the value used here is Petitioners argue that, as state owned determination was aberrational and unreliable. Third, we have specifically entities, Zaporozhye and Concern unrealistic because: (1) The surrogate expressed a preference for import values Oriana comprise the consolidated value is almost five times greater on a over export values when both are magnesium industry in Ukraine. per-unit basis than the Brazil value of available (see PRC Pencils 5). According to petitioners, total BIA hydrated carnallite provided in the Comment 3: Basis for Greenwich Metals’ should be assigned to this consolidated petition, of which magnesium chloride Deposit Rate Ukrainian industry because the industry is but one cost component; (2) the UN as a whole failed to report complete Trade Commodity Statistics show an Petitioners assert that verification sales information (i.e., Zaporozhye did export value for Indonesia which is one revealed that Greenwich’s reported U.S. not provide a complete response to the third that of the import value; and (3) sales of subject merchandise were questionnaire). They also claim that values for imports of magnesium entirely of merchandise that it had total BIA should also be assigned to chloride into other potential surrogate purchased from a European trader that third-country exporters because of the countries vary more than 500 percent, was aware that the merchandise was Ukrainian industry’s non-cooperation. demonstrating that the value used for destined for the United States. If the Department elects not to apply the preliminary determination is Consequently, petitioners request that total BIA to all third-country exporters inherently unreliable. in this proceeding, then petitioners Concern Oriana requests that the 5 Notice of Final Determination of Sales at Less contend that the Department should Than Fair Value: Certain Cased Pencils from the Department use the value of hydrated People’s Republic of China (60 FR 55625, November base FMV for the exporters’ U.S. sales carnallite from the petition as a more 8, 1994) (1) wholly on BIA, disregarding Concern Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16435 Oriana’s factors of production, or (2) on by consumers) should be considered as the producers were unable to a simple average of Concern Oriana’s within the scope. Petitioners propose a demonstrate for the record that any calculated FMV and a BIA-based FMV revised scope to achieve this end. economic benefit accrued to the firm for Zaporozhye, or that the Department Greenwich argues that the proposed and that such benefit was linked to the should link individual exporters’ revised scope is flawed because it production of the subject merchandise; applicable deposit rate to the specific appears to include secondary (2) the surrogate value used was producer which supplies subject magnesium (i.e., magnesium that has incorrect in that it did not correspond merchandise. been remelted and recast) as subject to the actual purity level of the by- Gerald Metals counters that Concern merchandise. product produced and was not Oriana’s magnesium production process DOC Position calculated net of transportation and is similar to that of Zaporozhye and, processing costs; and (3) any adjustment therefore, the Department should use We agree with petitioners that some determined to be appropriate should only verified information from Concern magnesium is produced which, despite have been made to the cost of Oriana to calculate FMV in its LTFV not meeting the normal definition manufacture rather than cost of analyses. (based on magnesium content) of pure materials so as not to understate factory magnesium, nevertheless may be used overhead, general expenses, and profit. DOC Position in applications that normally require Concern Oriana argues that the cost of If an antidumping duty order is issued pure magnesium. In fact, the records in manufacturing magnesium should be in this proceeding, any direct sales from the concurrent antidumping reduced by the value of chlorine by- Ukraine will be subject to a deposit rate investigations of pure and alloy product. based on total BIA. (See discussion of magnesium from the People’s Republic ‘‘All Other Companies’’ in the ‘‘Fair of China show sales of such magnesium DOC Position Value Comparisons’’ section of this were supplied to fulfill an order for pure We agree with petitioners in part. notice, above). magnesium. As to the third-country exporters, we We therefore have revised the scope First, because the by-product results have continued to follow the approach to include this off-specification pure from the production process and is set out in the preliminary magnesium within the definition of either used by the magnesium producer determination. We have based FMV for pure magnesium. Off-specification pure or sold for use by some other company those companies’ reported U.S. sales of magnesium is described as any product in the NME country, it is a factor whose Concern-Oriana-produced merchandise (1) that is 50 percent or more primary value must be taken into account in our on Concern Oriana’s factors of magnesium, and (2) that does not meet calculation of the fair value against production; we have not calculated any ASTM definition of alloy which to test U.S. prices. Second, we FMV for reported sales of Zaporozhye- magnesium (based on specific have adjusted the by-product’s surrogate produced merchandise, but instead have percentages of one or more alloying CIF import value to reflect assigned an uncooperative BIA margin. agents). concentration differences. However, no This approach is consistent with the We note that our consultations with adjustment to value for transportation approach that we have taken in other the Bureau of Mines established that the costs is appropriate; for by-products, as NME cases, such as Coumarin, Pencils, industry standards for alloy magnesium for material factors of production and PRC Sulfur Dyes 6, where the are ASTM standards. (See Final consumed in the production process, we Department based FMV for an exporter Calculation Memorandum). consider the import values used to be not controlled by the central Consequently, we have not adopted surrogates for ex-factory, freight- government only on the factors of scope language proposed by petitioners exclusive prices from suppliers to production of the producer or producers that refers to alloy magnesium defined consumers. Third, we agree with which supplied subject merchandise to by ‘‘other industry standards’’ in petitioners that the proper adjustment is that exporter. Under this approach, illustrating products that are not off- a reduction in the cost of manufacture. individual transaction margins are then specification pure magnesium. This adjustment increases overhead weight averaged to arrive at a single, Although ASTM standards define pure amount commensurately with the value exporter-specific deposit rate. Further, magnesium as not less than 99.8 percent of the by-product, thereby eliminating in a situation like that created here by magnesium, we believe that metal with the need for valuing any additional Zaporozhye’s failure to respond, where a primary magnesium content below processing-related elements. FMV information needed to calculate a that level should be captured in the Additionally, an adjustment to cost of margin is not available, the Department scope if it cannot legitimately be manufacture is consistent with has, as here, resorted to partial BIA and defined as a specific ASTM alloy Department practice in other NME plugged into the weighted-average magnesium. investigations (see, e.g., Coumarin). calculations BIA margins for individual The fact that the scope encompasses Comment 7: Surrogate General transactions. (See, e.t., Pencils.) only merchandise with primary Expenses and Profit Comment 5: Scope magnesium content of 50 percent or greater means that merchandise Petitioners argue that an amount Petitioners contend that the composed of 50 percent or more should be included in FMV calculations Department should clarify the scope in secondary magnesium is excluded. in order to reflect general expenses this proceeding. Petitioners argue that incurred and profit realized by each ‘‘off-specification’’ pure magnesium Comment 6: By-Product Offset reseller involved in the sales process. (i.e., magnesium that is less than 99.8% Methodology Petitioners argue that, because the pure magnesium but that otherwise can Petitioners contend that the responding resellers failed to provide be and is considered pure magnesium Department’s decision to permit an their selling expenses (despite a offset to material surrogate values to Departmental request to do so in the 6 Final Determination of Sales at Less Than Fair account for the chlorine by-product of questionnaire), the Department should Value: Sulfur Dyes, Including Sulfur Vat Dyes, from the People’s Republic of China (58 FR 7543, the magnesium production process was add an amount based on financial February 8, 1993) erroneous for the following reasons: (1) statements submitted by resellers. 16436 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Greenwich, Hochschild, and Gerald appropriate surrogate percentages or the where the concentration applicable to a Metals, assert that petitioners have statutory minima. surrogate value cannot be determined. provided no convincing rebuttal to the Command 8: Surrogate Value of Labor DOC Position Department’s recent rejection of such a request in Coumarin, and note that the Petitioners challenge the Where we have been able to questionnaires they received did not Department’s use of an unskilled labor determine the purity or concentration contain section D, the section dealing value in the preliminary determination applicable to a surrogate value, we have with general expenses. to account for both skilled and unskilled adjusted for differences, if any, between labor. Petitioners assert that, if the the surrogate and the actual material. DOC Response Department cannot locate specific Otherwise, we have attempted no We agree with respondents that an skilled and unskilled labor values from adjustment for purity or concentration. addition to FMV of actual reseller the chosen surrogate countries, the Continuation of Suspension of general expenses and profit would be Department should employ labor rates Liquidation inappropriate. Given that Ukraine is an from the petition as BIA. NME and the Ukrainian magnesium In accordance with section 733(d) of industry has not been found to be DOC Position the Act, we are directing the Customs market oriented, section 773(c) of the We have obtained and used Service to continue to suspend Act requires that the Department Indonesian wage data for 1992 for liquidation of all entries of pure measure U.S. prices against the factors skilled and unskilled labor (see PRC magnesium from Ukraine that are of production (materials, labor, energy, Lighters8). Because Indonesia is our entered, or withdrawn from warehouse, and overhead) used in producing the primary surrogate country, we do not for consumption on or after November merchandise, valued in an appropriate need to address the question of an 7, 1994, which is the date of publication surrogate country, plus general appropriate alternative source of values our notice of preliminary determination expenses, profit and containers. The for these factors. in the Federal Register. The Customs Act’s only specific guidance as to the Service shall require a cash deposit or valuation of general expenses, profit and Comment 9: Unreported Material. posting of a bond equal to the estimated containers is to establish minima for the Petitions assert that the Department amount by which the FMV exceeds the first two. Our regulations, meanwhile, should include in Concern Oriana’s USP as shown below. These suspension instruct us to ‘‘include in this FMV the value for a material which was of liquidation instructions will remain calculation of constructed value an not included in the preliminary in effect until further notice. amount for general expenses and profit, determination. In its questionnaire Consistent with our practice in as required by section 773(e)(1)(B) of the response, Concern Oriana did not investigations involving imports from Act. (19 CFR 353.52(c)) The Department provide usage information for this NME countries, we have calculated a has not interpreted the Act and the material, claiming that its value was not single, ‘‘Ukraine-wide’’ deposit rate regulations as requiring use of actual significant. Petitioners contend that the applicable to all exporters in Ukraine, as expenses and profit for these FMV value in Ukraine is not relevant since well as any exporters in third countries components when FMV is based on the input would be valued in a surrogate that have not been assigned a company- factors of production; the Department country. Therefore, as BIA, petitioners specific margin. As is discussed under has also explicitly rejected such advocate use of an average of all other ‘‘All Other Companies’’ in the ‘‘Fair adjustments in prior NME proceedings direct input values as the value for this Value Comparisons’’ section of this (see, e.g., Coumarin and Sparklers7). input. notice, the record in this investigation Moreover, to do so simply does not indicates that Ukraine exporters of make sense because it amounts to a DOC Position magnesium may not have responded to comparison of apples and oranges. In We disagree. Verification confirmed our questionnaire; therefore, the NME proceedings, the FMV is normally that this factor was properly omitted ‘‘Ukraine-wide’’ deposit rate has been based completely on factors valued in a since it was a waste product of the calculated based on total BIA. surrogate country (without regard to, for magnesium production process for The weighted-average dumping example, actual selling expenses) on the which only a very small fraction was margins are as follows: premise that the actual experience recycled into the production process. Weighted- cannot be meaningfully considered. Therefore, it is appropriate not to value average Were the question simply one of this input in the FMV calculation. Manufacturer/producer exporter margin per- ‘‘traditional’’ dumping by trading centage companies, the market-economy price- Comment 10: Concentration/Purity to-price or price-to-CV methodology Levels of Material Inputs Gerald Metals ...... 103.27 MG Metals ...... 79.87 would appropriately be employed; Petitioners contend that appropriate Hochschild Partners ...... 92.21 actual selling expenses would have been adjustments should be made for Ukraine-Wide Rate ...... 104.27 accounted for on both U.S. prices and differences in concentration or purity foreign market prices (or, if appropriate, between surrogate values on the one ITC Notification constructed value, in which case other hand and materials used in production In accordance with section 735(d) of general expenses and profit would also on the other hand. However, petitioners the Act, we have notified the ITC of our have been taken into account). also argue that the Department should determination. As our final Accordingly, we have continued to not assume that surrogate values determination is affirmative, the ITC value general expenses and profit by represent 100 percent concentration and will within 45 days determine whether simply applying to the surrogate-based therefore should make no adjustment imports the subject merchandise are cost of manufacture the greater of either materially injuring, or threaten material 8 Preliminary Determination of Sales at Less Than injury to, the U.S. industry. If the ITC 7 Final Determination of Sales at Less Than Fair Fair Value: Disposable Pocket Lighters from the Value: Sparklers from the People’s Republic of People’s Republic of China (59 FR 64191, December determines that material injury, or China (56 FR 20588, May 6, 1991) 13, 1994) threat of material injury does not exist, Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16437 the investigation will be terminated and 1994, we published a notice postponing (including turnings and powder), and all securities posted will be refunded or the final determinations (59 FR 55424). secondary magnesium. canceled. If the ITC determines that In January, 1995, we conducted Granular magnesium, turnings, and such injury does exist, the Department verification of the questionnaire powder are classifiable under will issue an antidumping duty order responses at Min He and Xing Xia. On Harmonized Tariff Schedule of the directing Customs officials to assess February 10, 1995, petitioner filed a United States (HTSUS) subheading antidumping duties on all imports of the case brief. On February 17, 1995, 8104.30.00. Magnesium granules and subject merchandise entered for respondents filed a rebuttal brief and turnings (also referred to as chips) are consumption on all after the effective petitioner withdrew its request for a produced by grinding and/or crushing date of the suspension of liquidation. public hearing. primary magnesium and thus have the This determination is published Scopes of Investigations same chemistry as primary magnesium. pursuant to section 735(d) of the Act Although not susceptible to precise and 19 CFR 353.20(a)(4). The scopes of these investigations measurement because of their irregular Dated: March 22, 1995. have been modified since the shapes, turnings or chips are typically preliminary determination in order to Susan G. Esserman, produced in coarse shapes and have a clarify the distinctions between pure maximum length of less than 1 inch. Assistant Secretary for Import magnesium and alloy magnesium. See Administration. Although sometimes produced in larger Comment 1 in the ‘‘Interested Party [FR Doc. 95–7775 Filed 3–29–95; 8:45 am] sizes, granules are more regularly Comments’’ section of this notice, shaped than turnings or chips, and have BILLING CODE 3510±DS±P below. a typical size of 2mm in diameter or A. Pure Magnesium smaller. [A±570±832 and A±570±833] Powders are also produced from The product covered by this grinding and/or crushing primary Notice of Final Determinations of sales investigation is pure primary magnesium and have the same at Less Than Fair Value: Pure magnesium regardless of chemistry, chemistry as primary magnesium, but Magnesium and Alloy Magnesium form or size, unless expressly excluded are even smaller than granules or From the People's Republic of China from the scope of this investigation. turnings. Powders are defined by the Primary magnesium is a metal or alloy AGENCY: Section Notes to Section XV, the section Import Administration, containing by weight primarily the International Trade Administration, of the HTSUS in which subheading element magnesium and produced by 8104.30.00 appears, as products of Department of Commerce. decomposing raw materials into EFFECTIVE DATE: March 30, 1995. which 90 percent or more by weight magnesium metal. Pure primary will pass through a sieve having a mesh FOR FURTHER INFORMATION CONTACT: magnesium is used primarily as a aperture of 1 mm. (See HTSUS, Section David J. Goldberger or Louis Apple, chemical in the aluminum alloying, XV, Base Metals and Articles of Base Office of Antidumping Investigations, desulfurization, and chemical reduction Metals, Note 6(b).) Accordingly, the Import Administration, International industries. In addition, pure primary exclusion of magnesium turnings, Trade Administration, U.S. Department magnesium is used as an input in granules and powder from the scope of Commerce, 14th Street and producing magnesium alloy. includes products having a maximum Constitution Avenue NW., Washington, Pure primary magnesium encompasses: physical dimension (i.e., length or D.C. 20230; telephone: (202) 482–4136 (1) Products that contain at least 99.95% diameter) of 1 inch or less. or (202) 482–1769, respectively. primary magnesium, by weight (generally The products subject to this Final Determinations referred to as ‘‘ultra-pure’’ magnesium); investigation are classifiable under (2) Products containing less than 99.95% but The Department of Commerce (the not less than 99.8% primary magnesium, subheadings 8104.11.00, 8104.19.00 and Department) determines that pure by weight (generally referred to as ‘‘pure’’ 8104.20.00 of the HTSUS. Although the magnesium and alloy magnesium from magnesium); and HTSUS subheadings are provided for the People’s Republic of China (PRC) are (3) Products (generally referred to as ‘‘off- convenience and customs purposes, our being, or are likely to be, sold in the specification pure’’ magnesium) that written description of the scope is United States at less than fair value contain 50% or greater, but less than dispositive. (LTFV), as provided in section 735 of 99.8% primary magnesium, by weight, and that do not conform to ASTM B. Alloy Magnesium the Tariff Act of 1930, as amended (the specifications for alloy magnesium. Act). The estimated margins are shown The product covered by this in the ‘‘Suspension of Liquidation’’ ‘‘Off-specification pure’’ magnesium investigation is alloy primary section of this notice. is pure primary magnesium containing magnesium regardless of chemistry, magnesium scrap, secondary form or size, unless expressly excluded Case History magnesium, oxidized magnesium or from the scope of this investigation. Since the Department announced its impurities (whether or not intentionally Primary magnesium is a metal or alloy preliminary determinations on October added) that cause the primary containing by weight primarily the 27, 1994, (59 FR 55424, November 7, magnesium content to fall below 99.8% element magnesium and produced by 1994) the following events have by weight. It generally does not contain, decomposing raw materials into occurred: individually or in combination, 1.5% or magnesium metal. On October 19, 1994, Min He more, by weight, of the following Alloy magnesium products are Magnesium (Min He), a producer and alloying elements: aluminum, produced by adding alloying elements exporter of the subject merchandise, and manganese, zinc, silicon, thorium, to pure magnesium in order to alter the Xiamen Xing Xia Co. Ltd (Xing Xia), an zirconium and rare earths. mechanical and physical properties of exporter of the subject merchandise, Excluded from the scope of this the magnesium to make it suitable for requested that we postpone our final investigation are alloy primary use as a structural material. Alloy determinations by 60 days pursuant to magnesium, primary magnesium magnesium is used primarily for casting 19 CFR 353.20(b)(1). On November 7, anodes, granular primary magnesium or in wrought form. It is harder and 16438 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices stronger than pure magnesium and may The products subject to this attempt to cooperate with the possess a higher corrosion resistance. investigation are classifiable under Department’s requests for This investigation covers alloy subheadings 8104.19.00 and 8104.20.00 documentation during their respective primary magnesium which contains of the HTSUS. Although the HTSUS verifications, they were not able to do so 50% or greater, but less than 99.8%, subheadings are provided for and the Department was unable to verify primary magnesium, by weight, and one convenience and customs purposes, our the accuracy and completeness of the or more of the following: aluminum, written description of the scope is information reported in their manganese, zinc, silicon, thorium, dispositive. questionnaire responses. Therefore, the zirconium and rare earths in amounts Periods of Investigation Department must assign an antidumping which, individually or in combination, margin on the basis of BIA pursuant to constitute not less than 1.5% of the The period of investigation (POI) for section 776 (b) and (c) of the Act. material, by weight. Products that meet pure magnesium is April 1, 1993 In determining what to use as BIA, the the aforementioned description but do through March 31, 1994. The POI for Department follows a two-tiered not conform to ASTM specifications for alloy magnesium is September 1, 1992 methodology, whereby the Department alloy magnesium are not included in the through March 31, 1994. normally assigns less adverse margins to scope of this investigation. In addition Best Information Available (BIA) those respondents that cooperated in an to primary magnesium, alloy The Department’s antidumping investigation and more adverse margins magnesium may contain magnesium to those respondents that did not scrap, secondary magnesium, or questionnaire was sent to seven companies located in the PRC, in cooperate in an investigation. The oxidized magnesium in amounts less Department’s two-tiered methodology than the primary magnesium itself. addition to the copy sent to the Ministry of Foreign Trade and Economic for assigning BIA has been upheld by Alloy primary magnesium is cast and the U.S. Court of Appeals for the sold in various physical forms and sizes, Cooperation. Of these seven companies, Federal Circuit. (See Allied Signal v. including ingots, slabs, rounds, billets responses were received from only one, United States, 996 F.2d 1185 (Fed. Cir. and other shapes. Min He. Two companies, Luoyang Excluded from the scope of this Copper Working Plant and Northeast 1993) (June 22, 1993)). In this case, the investigation are pure primary Light Alloy Fabrication Plant, replied Department has determined that the magnesium, primary magnesium that they did not export the subject respondent, a single entity as explained anodes, granular primary magnesium merchandise. Two companies, Harbin above, is uncooperative because known (including turnings and powder), and Non-Ferrous Metal Smelter and Fushun exporters did not respond to the secondary magnesium. Aluminum Smelter, did not respond to Department’s questionnaire. This fact Granular magnesium, turnings, and the questionnaires at all and the impeded significantly the Department’s powder are classifiable under questionnaires sent to the other two investigation. Harmonized Tariff Schedule of the companies, Yingkou Magnesium Works When a respondent is uncooperative, United States (HTSUS) subheading and Tongling Copper Smelter, were the Department normally uses as BIA 8104.30.00. Magnesium granules and returned as undeliverable. Another the higher of 1) the highest margin in turnings (also referred to as chips) are company, Xing Xia, was accepted by the the petition; 2) the highest margin produced by grinding and/or crushing Department as a voluntary respondent. calculated for any other respondent primary magnesium and thus have the In investigations involving imports within the same country for the same same chemistry as primary magnesium. from non-market economy countries, class or kind of merchandise; or 3) the Although not susceptible to precise unless respondents request and qualify estimated margin found for the affected measurement because of their irregular for separate rates, we apply the same firm in the preliminary determination. shapes, turnings or chips are typically rate to all exports from that country and (See Final Determination of Sales at produced in coarse shapes and have treat responses from individual Less Than Fair Value: Antifriction maximum length of less than 1 inch. companies as single consolidated Bearings (other than Tapered Roller Although sometimes produced in larger response. Since none of the respondents Bearings) and Parts Thereof from the sizes, granules are more regularly requested a separate rate in either the Federal Republic of Germany, 54 FR shaped than turnings or chips, and have pure magnesium or alloy magnesium 1892, 19033 (1989)). In this a typical size of 2mm in diameter or investigation, all respondents are treated investigation, the preliminary smaller. as one entity for the purposes of determination margins are higher than Powders are also produced from assigning an antidumping margin in the petition margins, as revised in the grinding and/or crushing primary each investigation. initiation notice. (See Initiation of magnesium and have the same At the time of the preliminary Antidumping Duty Investigations: Pure chemistry as primary magnesium, but determination, it was unclear whether and Alloy Magnesium From the are even smaller than granules or there were nonresponding potential People’s Republic of China, the Russian turnings. Powders are defined by the exporters during the POI. Since the Federation, and Ukraine (59 FR 21748, Section Notes to Section XV, the section preliminary determination, we have April 26, 1994). Therefore, as BIA, we of the HTSUS in which subheading identified nonresponding potential are assigning to all exporters of PRC 8104.30.00 appears, as products of exporters. The required consolidated pure magnesium and ally magnesium which 90 percent or more by weight response in this case is incomplete the rates calculated in the preliminary will pass through a sieve having a mesh because these companies failed to determinations. (see Final aperture of 1mm. (See HTSUS, Section respond to the Department’s Determination of Sales at Less Than Fair XV, Base Metals and Articles of Base questionnaire. Moreover, the portion of Value: Certain Hot-Rolled Carbon Steel Metals, Note 6(b).) Accordingly, the the response that was submitted, (i.e. Flat Products, Certain Cold-Rolled exclusion of magnesium turnings, Min He and Xing Xia) failed to verify. Carbon Steel Flat Products, and Certain granules and powder from the scope (see verification reports dated February Cut-to-Length Carbon Steel Plated From include products having a maximum 3, 1995) Belgium (58 FR 37083, July 9, 1993). physical dimension (i.e., length or Although the participating (For further discussion of BIA, see diameter) or 1 inch or less. respondents, Min He and Xing Xia, did Comment 2) Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16439 Verification concurrent investigations of pure our questionnaire, we are assigning an As provided in section 776(b) of the magnesium and alloy magnesium from uncooperative BIA rate, pursuant to our Act, we attempted to verify all the Russian Federation and ally long-standing practice. information submitted by respondents magnesium from the Ukraine). Petitioners have asked the Department for use in our final determinations. We Consequently, we have not adopted to depart from its standard practice and used standard verification procedures, petitioner’s proposed scope language adjust this BIA rate based on information discovered at verification. including examination of relevant that would describe off-specification Petitioners are essentially asking the accounting records and original source pure magnesium as any product, inter Department to adjust the BIA rate to documents provided by respondents. alia, that does not meet ASTM make it more accurate. However, it is a However, as noted above, we were not standards or other industry standards. Although ASTM standards define generally accepted principle that BIA able to verify the accuracy and pure magnesium as not less than 99.8 ‘‘is not necessarily accurate information, completeness of the respondents’ percent magnesium, metal with a ** * [but rather is] * * * information submissions. primary magnesium content below that which becomes usable because Interested Party Comments level should be captured in the scope of respondent has failed to provide the pure magnesium investigations if it accurate information.’’ (See Association Comment 1 cannot legitimately be defined as a Columbiana de Exportadoras de Flores Petitioners contend that the specific ASTM alloy magnesium. v. United States, 704 F. Supp. 1114, Department should clarify the scopes in The fact that both scopes capture only 1126 (Ct. Int’l Trade 1989), rev’d in part these proceedings. Petitioners argue that merchandise with primary magnesium on remand, 717 F. Supp. 834 (Ct. Int’l ‘‘off-specification’’ pure magnesium content of 50 percent or greater means Trade 1989), aff’d on other grounds, 901 (i.e., magnesium that is less than 99.8% that merchandise composed of 50 F.2d 1089 (Fed Cir. 1990) cert. denied, pure magnesium but that otherwise can percent or more secondary magnesium 111 S. Ct. 136 (1990)). The Department’s be and is considered pure magnesium would not fall within either scope. practice is to apply, as BIA, the highest by consumers) should be considered margin already calculated and not to Comment 2 within the scope of the pure magnesium engage in the exercise of attempting to proceeding instead of within the scope Petitioners state that the Department calculate the highest possible margin. of the alloy magnesium proceeding. should base the dumping margins for all The purpose of resorting to BIA is not Petitioners propose revised scopes to producers and exporters of magnesium to be punitive but to encourage achieve this end. from the PRC on BIA, and argue that the respondents to properly respond to the Respondents argued that petitioners’ BIA rate should be calculated using the Department’s requests for information. request for ‘‘clarification’’ of scope was factors data found at verification and the The Department believes that the untimely. They further argued that lowest United States price in the 108.26% rate for pure magnesium and petitioners concerns about petition. At verification we found 79.38% rate for alloy magnesium circumvention are merely speculative discrepancies in the factor usage data, accomplish this purpose. because no order yet exists as a result the additional unreported factors, as Continuation of Suspension of of this investigation. Furthermore, well as, mis-reported data on labor and Liquidation respondents stated that petitioners electricity. However, if the suggested should have their concerns addressed in methodology is not used, petitioners In accordance with sections 733(d)(1) a request for scope review or an argue that the Department should not of the Act, we are directing the Customs anticircumvention investigation. use as BIA a rate lower than the highest Service to continue to suspend rate alleged in the petition. liquidation of all entries of pure DOC Position Min He and Xing Xia argue that, magnesium and alloy magnesium from We agree with petitioners that some although that they were unable to the PRC that are entered, or withdrawn magnesium, despite not meeting the provide all of the information requested from warehouse, from consumption on normal definition (based on magnesium by the Department, they were or after November 7, 1994, which is the content) of pure magnesium, cooperative and provided timely date of publication of our notice of nevertheless may be used in responses. In view of this cooperation, preliminary determination in the applications that normally require pure they argue the Department should not Federal Register. The Customs Service magnesium. In fact, the record in this resort to the punitive first tier BIA. shall in each proceeding, require a cash case show sales of such magnesium Instead, the Department should base its deposit or posting of a bond equal to were supplied to fulfill orders for pure BIA rate on the margins alleged in the 108.26 percent ad valorem on all entries magnesium. petition. They also argue that since the of certain pure magnesium from the PRC We therefore have revised the scopes Department was unable to verify the and 79.38 percent ad valorem on all of these investigations to include this information reported, it must revert to entries of certain alloy magnesium from off-specification pure magnesium BIA from the petition and publicly the PRC. This suspension of liquidation within the definition of pure available sources, and thus not use facts will remain in effect until further notice. magnesium, described as any product found at verification to calculate the ITC Notification (1) that is 50 percent or more primary foreign market value. magnesium, and (2) that does not meet In accordance with section 735(d) of any ASTM definition of alloy DOC Position the Act, we have notified the ITC of our magnesium (based on specific The Department does not agree that determinations. As our final percentages of one or more alloying respondents should be granted determinations are affirmative, the ITC agents). cooperative BIA rates. As stated above, will within 45 days determine whether We not that our consultations with because no exporter is being granted a imports of either product are materially the Bureau of Mines established that the separate dumping margin, we are injuring, or threaten material injury to, industry standards for alloy magnesium assigning one country-wide margin in the U.S. industry. In each proceeding, if are ASTM standards. (See Final each of the investigations. Given that the ITC determines that material injury, Calculation Memorandum of the certain exporters failed to respond to or threat of material injury does not 16440 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices exist, that proceeding will be terminated Amalgamet Canada, Greenwich Metals, magnesium scrap, secondary and all securities posted will be and Hochschild Partners. These magnesium, oxidized magnesium or refunded or cancelled. If, in either companies provided responses to these impurities (whether or not intentionally proceeding, the ITC determines that questionnaires in December 1994 and added) that cause the primary such injury does exist, the Department January 1995. magnesium content to fall below 99.8% will issue an antidumping duty order All participating respondents’ (in by weight. It generally does not contain, for the appropriate proceeding directing each proceeding) supplemental individually or in combination, 1.5% or Customs officials to assess antidumping questionnaire responses were received more, by weight, of the following duties on all imports of the subject and verifications were conducted as alloying elements: aluminum, merchandise entered for consumption detailed in Appendix I. manganese, zinc, silicon, thorium, on or after the effective date of the On January 31, 1995, we amended our zirconium and rare earths. suspension of liquidation. preliminary determinations to correct Excluded from the scope of this These determinations are published for certain ministerial errors (60 FR investigation are alloy primary pursuant to section 735(d) of the Act 7519, February 8, 1995). magnesium, primary magnesium and 19 CFR 353.20(a)(4). Certain respondents (Amalgamet anodes, granular primary magnesium Dated: March 22, 1995. Canada, AVISMA, SMW, Gerald Metals, (including turnings and powder), and Susan G. Esserman, Greenwich Metals and Hochschild secondary magnesium. Partners) and petitioners filed case Granular magnesium, turnings, and Assistant Secretary for Import powder are classifiable under Administration. briefs. Rebuttal briefs were submitted by petitioners and the following Harmonized Tariff Schedule of the [FR Doc. 95–7776 Filed 3–29–95; 8:45 am] United States (HTSUS) subheading BILLING CODE 3510±DS±P respondents: Amalgamet Canada, AVISMA, SMW, Razno, Interlink, & 8104.30.00. Magnesium granules and AIOC, Gerald Metals, Greenwich Metals, turnings (also referred to as chips) are (A±821±805, A±821±806) and Hochschild Partners. A public produced by grinding and/or crushing hearing was held on February 28, 1995. primary magnesium and thus have the Notice of Final Determinations of Sales same chemistry as primary magnesium. at Less Than Fair Value: Pure Scopes of Investigations Although not susceptible to precise Magnesium and Alloy Magnesium The scopes of these investigations measurement because of their irregular From the Russian Federation have been modified since the shapes, turnings or chips are typically produced in coarse shapes and have a AGENCY: Import Administration, preliminary determination in order to maximum length of less than 1 inch. International Trade Administration, clarify the distinctions between pure Although sometimes produced in larger Department of Commerce. magnesium and alloy magnesium. See sizes, granules are more regularly EFFECTIVE DATE: March 30, 1995. Comment 9 in the ‘‘Interested Party Comments’’ section of this notice, shaped than turnings or chips, and have FOR FURTHER INFORMATION CONTACT: below. a typical size of 2mm in diameter or Ellen Grebasch, Dorothy Tomaszewski smaller. or Erik Warga, Office of Antidumping A. Pure Magnesium Powders are also produced from Investigations, Import Administration, The product covered by this grinding and/or crushing primary International Trade Administration, investigation is pure primary magnesium and have the same U.S. Department of Commerce, 14th magnesium regardless of chemistry, chemistry as primary magnesium, but Street and Constitution Avenue, N.W., form or size, unless expressly excluded are even smaller than granules or Washington, D.C. 20230; telephone: from the scope of this investigation. turnings. Powders are defined by the (202) 482–3773, (202) 482–0631 or (202) Primary magnesium is a metal or alloy Section Notes to Section XV, the section 482–0922, respectively. containing by weight primarily the of the HTSUS in which subheading Final Determination element magnesium and produced by 8104.30.00 appears, as products of which 90 percent or more by weight We determine that imports of pure decomposing raw materials into magnesium metal. Pure primary will pass through a sieve having a mesh magnesium and alloy magnesium from aperture of 1mm. (See HTSUS, Section the Russian Federation are being, or are magnesium is used primarily as a chemical in the aluminum alloying, XV, Base Metals and Articles of Base likely to be, sold in the United States at Metals, Note 6(b).) Accordingly, the less than fair value (‘‘LTFV’’), as desulfurization, and chemical reduction industries. In addition, pure primary exclusion of magnesium turnings, provided in section 733 of the Tariff Act granules and powder from the scope of 1930, as amended (‘‘the Act’’). The magnesium is used as an input in producing magnesium alloy. includes products having a maximum estimated margins are shown in the physical dimension (i.e., length or ‘‘Continuation of Suspension of Pure primary magnesium encompasses: diameter) of 1 inch or less. Liquidation’’ section of this notice. (1) products that contain at least 99.95% The products subject to this primary magnesium, by weight (generally Case History referred to as ‘‘ultra-pure’’ magnesium); investigation are classifiable under subheadings 8104.11.00, 8104.19.00 and Since the preliminary determination (2) products containing less than 99.95% 8104.20.00 of the HTSUS. Although the on October 27, 1994 (59 FR 55420, but not less than 99.8% primary magnesium, HTSUS subheadings are provided for November 7, 1994), the following events by weight (generally referred to as ‘‘pure’’ magnesium); and convenience and customs purposes, our have occurred: (3) products (generally referred to as ‘‘off- written description of the scope is In December 1994, we issued sections specification pure’’ magnesium) that contain dispositive. A and C of our antidumping 50% or greater, but less than 99.8% primary questionnaire 1 to respondent exporters magnesium, by weight, and that do not B. Alloy Magnesium conform to ASTM specifications for alloy The product covered by this 1 Section A requested general information on each magnesium. company; and section C requested information on, investigation is alloy primary and a listing of, U.S. sales made during the period ‘‘Off-specification pure’’ magnesium magnesium regardless of chemistry, of investigation (‘‘POI’’). is pure primary magnesium containing form or size, unless expressly excluded Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16441 from the scope of this investigation. turnings. Powders are defined by the The questionnaire sent to Bergmann Primary magnesium is a metal or alloy Section Notes to Section XV, the section clearly instructed Bergmann to report containing by weight primarily the of the HTSUS in which subheading ‘‘the names and addresses of all related element magnesium and produced by 8104.30.00 appears, as products of companies in all countries dealing’’ decomposing raw materials into which 90 percent or more by weight with the subject merchandise. Had magnesium metal. will pass through a sieve having a mesh Bergmann properly participated in these Alloy magnesium products are aperture of 1mm. (See HTSUS, Section investigations, Amalgamet would have produced by adding alloying elements XV, Base Metals and Articles of Base been identified in a timely fashion, and to pure magnesium in order to alter the Metals, Note 6(b).) Accordingly, the would have been instructed to respond mechanical and physical properties of exclusion of magnesium turnings, to the questionnaire. Amalgamet and the magnesium to make it suitable for granules and powder from the scope Bergmann should have known that use as a structural material. Alloy include products having a maximum Amalgamet’s participation in these magnesium is used primarily for casting physical dimension (i.e., length or proceedings was mandatory based on or in wrought form. It is harder and diameter) of 1 inch or less. Bergmann’s receipt of the questionnaire. stronger than pure magnesium and may The products subject to this Accordingly, Amalgamet and Bergmann possess a higher corrosion resistance. investigation are classifiable under will be assigned a deposit rate based on This investigation covers alloy subheadings 8104.19.00 and 8104.20.00 the best information available (‘‘BIA’’) primary magnesium which contains of the HTSUS. Although the HTSUS based on their failure to participate 50% or greater, but less than 99.8%, subheadings are provided for despite early notice of the primary magnesium, by weight, and one convenience and customs purposes, our investigations. or more of the following: Aluminum, written description of the scope is B. All Other Companies manganese, zinc, silicon, thorium, dispositive. zirconium and rare earths in amounts In both proceedings, there is nothing which, individually or in combination, Periods of Investigation on the record to indicate that any constitute not less than 1.5% of the The POI in both proceedings is exporters within Russia failed to report material, by weight. Products that meet October 1, 1993, through March 31, U.S. sales of subject merchandise during the aforementioned description but do 1994. the POI. The only Russian exporter to not conform to ASTM specifications for have sold either product to the United Fair Value Comparisons alloy magnesium are not included in the States during the POI is SMW. Because scope of this investigation. In addition A. Participating Respondents SMW’s calculated margin in both to primary magnesium, alloy To determine whether sales of pure proceedings is zero, we have based the magnesium may contain magnesium magnesium to the United States by ‘‘Russia-wide’’ deposit rate on a simple scrap, secondary magnesium, or AIOC, Gerald Metals, Greenwich Metals, average of the rates applicable to all oxidized magnesium in amounts less Hochschild Partners, HDM, Interlink, companies considered mandatory than the primary magnesium itself. MG Metals, and Razno, and sales to the respondents, excluding calculated rates Alloy primary magnesium is cast and United States of alloy magnesium by that are zero or de minimis. In these sold in various physical forms and sizes, Amalgamet, Gerald Metals, and SMW, proceedings, because all such including ingots, slabs, rounds, billets were made at less than fair value, we companies’ margins are based on BIA, and other shapes. compared the United States price the ‘‘Russia-wide’’ rate is also based Excluded from the scope of this (‘‘USP’’) to the foreign market value entirely on BIA. investigation are pure primary In determining what to use as BIA, the (‘‘FMV’’), as specified in the ‘‘United magnesium, primary magnesium Department follows a two-tiered States Price’’ and ‘‘Foreign Market anodes, granular primary magnesium methodology, whereby the Department Value’’ sections of this notice. (including turnings and powder), and Verification revealed that, for its POI normally assigns lower margins to respondents that cooperated in an secondary magnesium. sales to U.S. companies, there were no Granular magnesium, turnings, and investigation and margins based on instances where Greenwich Metals’ role powder are classifiable under more adverse assumptions for those in the sales process was that of being the Harmonized Tariff Schedule of the respondents, like the non-participating first company to sell Russia-produced United States (HTSUS) subheading respondents in this investigation, which alloy magnesium to a U.S. customer. 8104.30.00. Magnesium granules and did not cooperate in an investigation. As That is, all subject merchandise turnings (also referred to as chips) are outlined in Coumarin,3 where, as here, purchased by Greenwich was done so produced by grinding and/or crushing a company refuses to provide the on terms that made Greenwich the U.S. primary magnesium and thus have the information requested in the form customer of its supplier. Accordingly, same chemistry as primary magnesium. required, or otherwise significantly Greenwich will be subject to the Although not susceptible to precise impedes the Department’s investigation, ‘‘Russia-wide’’ deposit rate for alloy measurement because of their irregular it is appropriate for the Department to magnesium. assign to that company the higher of (1) shapes, turnings or chips are typically Amalgamet Canada is closely related the highest calculated rate of any produced in coarse shapes and have to W&O Bergmann in that a large respondent in the investigation, (2) the maximum length of less than 1 inch. percentage of each company’s shares are Although sometimes produced in larger owned by a common owner (Preussag). (albeit temporarily given Amalgamet’s post- sizes, granules are more regularly Bergmann was sent an antidumping shaped than turnings or chips, and have preliminary-determination revelation that it had questionnaire in August, but, despite its made U.S. sales) when Bergmann stated in an a typical size of 2mm in diameter or close relationship to Amalgamet, never October 1994 fax that earlier-disclosed sales of smaller. apprised us of Amalgamet’s POI U.S. subject merchandise, although to a U.S. company, Powders are also produced from were sold ‘‘fob Rotterdam, Antwerp or Zeebrugge’’ sales of subject merchandise.2 grinding and/or crushing primary without knowledge of destination on Bergmann’s part. magnesium and have the same 2 Until just prior to our preliminary 3 Final Determination of Sales at Less Than Fair chemistry as primary magnesium, but determinations, the record showed that Bergmann Value: Coumarin from the People’s Republic of are even smaller than granules or by itself was a mandatory respondent; this changed China (59 FR 66895, December 28, 1994). 16442 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices highest margin alleged in the petition, is on the record upon which to base a unrelated purchaser after importation or (3) the margin from the preliminary surrogate value. into the United States. determination for that firm. United States Price Both purchase price and ESP were Accordingly, we have set the Russia- As detailed below, we based USP on based on packed prices to unrelated wide deposit rate at 100.25 percent and purchasers in the United States, 153.65 percent, ad valorem, in the pure purchase price, in accordance with section 772(b) of the Act, when the according to the applicable delivery magnesium and alloy magnesium, subject merchandise was sold directly terms, with appropriate price respectively. These margins represent by the exporters to unrelated parties in adjustments. The following is a the highest margin in the petition, as the United States prior to importation summary of U.S. price calculations for recalculated by the Department for into the United States and because each exporter, with an asterisk (‘‘*’’) purposes of initiating this proceeding exporter’s sales price (‘‘ESP’’) designating price adjustments and as further adjusted to account for methodology was not indicated by other applicable to some but not all sales (see factors of production listed in the circumstances. Final Calculation Memorandum, on file petition that were not valued at the time We based USP on ESP, in accordance in room B–099 of the Main Commerce of initiation, but for which information with section 772(c) of the Act, when the Department Building, for details of these subject merchandise was sold to the first adjustments). Exporter Terms of sale Price adjustments Pure Magnesium AIOC (PP, ESP) ...... CIF, FOB, Delivered ...... Foreign inland freight, storage charges, inspection charges*, sample costs charges*, document charges*, other foreign inland freight, dunnage, ocean freight, seaway tolls, U.S. duty, stevedoring, wharfage*, unloading charges*, warehousing*, U.S. inland freight. Interlink (PP) ...... Delivered, In-Warehouse .... Foreign insurance, ocean freight, marine insurance, procedure fees, harbor mainte- nance fees, U.S. inland freight, U.S. inland insurance*, U.S. brokerage. Gerald (PP) ...... In-Warehouse, Delivered, Foreign brokerage, foreign inland freight*, ocean freight, U.S. inland freight*, U.S. FOT Warehouse. brokerage, oxidation credits.* Greenwich (PP, ESP) ...... Delivered, FOT, In-ware- Discounts*, foreign brokerage, ocean freight, marine insurance, U.S. duty, U.S. in- house. land freight*, U.S. inland insurance, U.S. brokerage, third party payments.* Hochschild (PP) ...... Delivered ...... Foreign brokerage, ocean freight, marine insurance, U.S. duty*, U.S. inland freight*, U.S. brokerage*, third party payments.* HDM (ESP) ...... Delivered ...... Ocean freight, U.S. duty*, U.S. inland freight, U.S. brokerage*, repacking*, U.S. containerization*, other containerization. MG (PP, ESP) ...... Delivered ...... Foreign brokerage*, foreign inland freight, ocean freight, marine insurance, U.S. duty, U.S. inland freight, U.S. inland insurance, U.S. brokerage, repacking.* Razno (PP) ...... CIF, FOB ...... Foreign brokerage, foreign inland freight, oxidation credits.* SMW (PP) ...... FOB ...... Foreign brokerage, foreign inland freight. Alloy Magnesium SMW (PP) ...... FOB ...... Foreign brokerage, foreign inland freight. Gerald (PP) ...... In-Warehouse, Delivered Foreign brokerage*, foreign inland freight*, ocean freight, U.S. duty*, U.S. inland FOT Warehouse. freight, U.S. brokerage, third party payments. From each exporter’s U.S. price, we follows: a reported figure that was an U.S. brokerage, third party payments, also deducted foreign inland freight extended value (i.e., an amount and oxidation credits were made based between the factory and the reported applicable to the entire transaction) was on verification findings. intermediate destination (e.g., adjusted to reflect a per-unit amount. Hochschild Partners (Pure Rotterdam) as follows: For SMW and The following adjustments were made Magnesium): Hochschild’s final U.S. Razno, we used reported distances and to the reported U.S. sales of these sales listing was adjusted to exclude transport modes to calculate an exporters pursuant to our findings at certain sales that verification revealed appropriate surrogate factory-to-border verification (see Final Calculation had been improperly included. An freight amount on the basis of surrogate Memorandum, for details of these additional unreported U.S. sale was freight rates in Brazil; for all other adjustments): discovered at verification and included exporters, we deducted the per-ton AIOC (Pure Magnesium): AIOC’s final foreign inland freight amount reported U.S. sales listing was adjusted to in its final sales listing. For purposes of in the petition as best information exclude certain sales that verification calculating a unit margin for this sale, available because those exporters did revealed had been improperly included. we applied the highest reported charges not in their questionnaire responses Based on verification findings, minor for ocean freight, foreign brokerage and information with respect to such corrections to reported figures for marine insurance, as well as the highest charges. We made no deduction from inspection fees, sample costs, dunnage, reported U.S. movement charges USP to account for exporter-incurred ocean freight, seaway tolls, U.S. duties, applicable to the delivery terms of this selling expenses, nor did we deduct unloading. Additionally, we deducted sale. Minor adjustments to reported export taxes paid by Russian companies an amount for marine insurance based figures for foreign brokerage, ocean to the Russian government because the on verification. freight, and marine insurance were also actual amounts paid are an internal Gerald Metals (Pure Magnesium and made based on verification findings. expense within an NME country. We Alloy Magnesium): Minor corrections to Finally, third party payment figures adjusted reported marine insurance and reported figures for foreign brokerage, relating to certain sales were disclosed ocean freight charges for Razno as foreign inland freight, ocean freight, at verification. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16443 Hunter Douglas (Pure Magnesium): figure was also included in the FMV Where resources are not allocated by the Minor corrections to reported figures for calculation based on a percentage of market, it would be difficult to conclude ocean freight, U.S. duty, U.S. brokerage, materials, labor and energy. We also that home market prices or costs should and U.S. containerization charges were granted certain by-product offsets be used to calculate fair value. made based on verification findings. against the cost of manufacturing (i.e., Evidence provided in these Interlink (Pure Magnesium): the sum of materials, labor, energy and proceedings indicates that Russia is in Interlink’s final U.S. sales listing was factory overhead). We then added the the process of implementing extensive adjusted (a) to exclude certain sales that statutory minimum amounts for general reforms to achieve its goal of becoming had been improperly included and (b) to expenses and profit, the cost of a market economy. The freeing of most include certain sales that had been containers and coverings, and other prices in December 1991 and the improperly excluded. Additionally, expenses incident to placing the privatization of most enterprises minor corrections to reported figures for merchandise in condition packed and formerly within the state-planning ocean freight and U.S. brokerage were ready for shipment to the United States. system are important steps in moving made based on verification findings. We used the same methodology as in Russia towards a market economy. Razno Alloys (Pure Magnesium): the preliminary determination to value We cannot conclude, however, based Razno’s final U.S. sales listing was factors of production, with the following on the information in this record that adjusted (a) to exclude certain sales that exceptions: (1) We used a publicly Russia should be treated as a market had been improperly included and (b) to available, published Brazilian rate for economy for purposes of the include certain sales that verification unskilled labor; (2) we used a publicly antidumping duty law. The Russian revealed had been improperly excluded. available, published Brazilian unit price economy, having emerged from a Additionally, although we considered for natural gas; and (3) we applied a centrally-planned system, is in a state of Razno a Russian company for our publicly available, published Brazilian transition. Many of the state controls preliminary determination because its industrial rate for electricity used by have been abandoned, but that does not sales office is in Moscow, we have electricity-intensive industries with mean that functioning markets have determined that Razno would more comparable levels of electricity replaced controls. Because the evidence properly be characterized as a Swiss consumption and capacity as does not demonstrate that prices and company. It is registered in Switzerland, magnesium producers. costs in Russia adequately reflect market its accounts are kept in Switzerland, considerations, we cannot at this time A. Market Reforms in the Russian and its ownership is majority non- alter Russia’s designation as a Federation Russian. Finally, minor corrections were nonmarket economy. made to reported figures for foreign In accordance with section 773(c) of Regarding the MOI claim, information brokerage based on verification. the Act, the Department normally uses on the record suggests that the a factor valuation methodology to government continues to be involved in Foreign Market Value calculate foreign market value when the the Russian magnesium sector. For For sales of magnesium produced by country involved is an NME country example, the Russian Federal Avisma and SMW, we calculated FMV and the Department determines that it Committee on Metallurgy, a successor to based on factors of production cited in cannot determine foreign market value the Ministry of Industry (Metallurgy the preliminary determination, making based on the respondent’s prices or Department), indicated in an official adjustments based on verification costs. Alternatively, an NME-country statement that it controls activity in the findings (see Final Calculation respondent may argue that market- magnesium industry in Russia, noting Memorandum). To calculate FMV, the driven prices characterize its particular particularly that it coordinates verified factor amounts were multiplied industry and, therefore, despite NME production, exports, and prices. Also, by the appropriate surrogate values for status, that foreign market value should although the two producers under the different inputs. We have used the be calculated by using actual home investigation have been privatized, this same surrogate values used in the market prices or costs (a market- same statement indicates that the preliminary determination with the oriented industry or ‘‘MOI’’ claim). Committee may be using the remaining exception of certain corrections made In these investigations, the Russian government interest in these companies based on verification or interested party manufacturers, Avisma and SMW, claim to carry out its intentions with respect comments. that economic conditions now prevalent to pricing and production. For these Based on verification, we adjusted throughout Russia warrant revocation of reasons, as stated in the preliminary certain factors’ value to reflect the actual Russia’s NME-country status, effective determination, we determine that the purity used in the production of subject January 1, 1994. Alternatively, the two prices or costs of producing magnesium merchandise. companies claim MOI for the in Russia should not be used to We recalculated certain inland freight magnesium industry in Russia. calculate fair value. No new information distances between factory and input Regarding the revocation of NME has been presented since then to alter supplier based on verified distances. status, the Department’s analysis centers this conclusion. We calculated FMV based on factors around a government’s role in economic of production reported by the factories activity. See Final Determination of B. Separate Rates which produced the subject Sales at Less Than Fair Value: Certain In each of these proceedings, SMW merchandise for the above-mentioned Cut-to-Length Carbon Steel Plate from requested that the Department calculate exporters. The factors used to produce Poland (58 FR 37205, July 9, 1993). a dumping margin and assign a deposit pure and alloy magnesium include Consistent with the factors described in rate separate from other potential materials, labor, and energy. To section 771(18), the Department Russian exporters. For our preliminary calculate FMV, the reported quantities considers the extent to which resources determination, we decided that we did were multiplied by the appropriate are allocated by the market or not need to address the issue because (1) surrogate values for the different inputs. government, taking into account SMW was the only Russian exporter of (For a complete analysis of surrogate government involvement in currency alloy magnesium; and (2) we decided values, see our Final Calculation and labor markets, pricing, and that SMW’s pure magnesium exports Memorandum.) A factory overhead production and investment decisions. were too small to consider in margin 16444 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices calculations. However, we have now a transition to private and employee SMW’s proceeds from export sales aside reconsidered our position that SMW’s ownership was begun. At the end of the from the already-reported requirement status as the only Russian company to POI, the Perm Regional Fund of State that SMW convert half of foreign sell to the United States obviates the Property (‘‘Perm Fund’’) owned 20 exchange earnings to rubles. need for a separate rates analysis when percent of SMW’s shares, with the rest As a shareholder, the Perm Fund was a separate rates claim has been put of shares owned by a workers able to appoint one of SMW’s 15 Board forward. SMW has claimed that collective—51 percent—or private members and votes in the appointment government ownership and control are companies (e.g., investment funds). of the general director. The other 14 absent and, therefore, as a POI exporter, Verification supported SMW’s account Board members are employees. In fact, it is entitled to consideration of its of its ownership status. minutes of SMW’s 1993 Board meeting, 4 examined at verification, did not appear claim. Control Further, we no longer consider to indicate participation by a SMW’s pure magnesium sales Government control over SMW’s representative associated with the Perm insignificant because we have export operations (both de jure and de Fund or with any other government determined, as discussed above, that facto) is absent. Specifically: entity. Razno Alloys, preliminarily found to be The July 1, 1992, Decree of the Although the Board of shareholders a Russian company, is actually a Swiss President of the Russian Federation: did not appoint SMW’s general director, company. Razno’s redefined status as a Measures for the Organization and it did, based on the minutes of its 1993 Swiss company renders SMW’s pure Reconstruction of State Enterprises, and meeting, reaffirm the basic terms of magnesium exports significant in that the Transferring of State Enterprises into SMW’s contract with the general SMW was the only company in Russia Joint Stock Companies (‘‘Decree 721’’), director, who had been appointed before to have exported any pure magnesium establishes that JSCs are ‘‘out of the SMW became a JSC. This reaffirmation directly to the United States. Thus, control of Ministries, State and Local indicates that the Board controlled SMW is the only Russian company that administrative organs and authorities.’’ decisions regarding the appointment of exported either pure or alloy The July 3, 1991, law, ‘‘On management even though it did not magnesium to the United States. Privatization of State-Owned and choose to make a management change To establish whether a firm is Municipal Enterprises,’’ is divided into upon becoming a JSC. sufficiently independent to be entitled three sections dealing with general In summary, the evidence favors a to a separate rate, the Department principles, procedures and means, and finding that government control is employs the criteria developed in the concluding principles. It is also divided absent and, accordingly, we find that Final Determination of Sales at Less into 31 articles. Significant articles SMW should be considered a separate Than Fair Value: Sparklers from the include: company for purposes of assigning a People’s Republic of China (56 FR Article 6, which establishes Russian deposit rate. Federal Property Fund to act as temporary 20588, May 6, 1991) (Sparklers) and C. Surrogate Country Selection amplified in Silicon Carbide. Under this ‘‘possessor of RSFSR [Russian Federation] analysis, the Department assigns a deeds to enterprises’’ and to sell shares and We selected Brazil as the appropriate deeds to enterprises. Limits Fund’s voting separate rate only when an exporter can surrogate country for the reasons set rights to a maximum of 20 percent of shares. forth in our preliminary determinations. demonstrate the absence of both de States that Fund may not ‘‘interfere in the jure 5 and de facto 6 governmental operations of enterprises except in cases Since we find no compelling reason to control over export activities. stipulated by enterprises’ founding change this selection, we have documents and the legislation of the RSFSR continued to base FMV on the values of Ownership * * *’’; and the appropriate factors of production as SMW is a joint-stock company (‘‘JSC’’) Article 9, which forbids buying of valued in Brazil. that was state-owned until 1992, when enterprises undergoing privatization by state entities or certain state-held companies/ D. Factors of Production funds. 4 Although Avisma also made a separate rates For sales of magnesium produced by claim, it did not make any POI direct U.S. sales. It With respect to de facto aspects of Avisma and SMW, we calculated FMV is, for good reason, unprecedented for the government control over export based on factors of production cited in Department to entertain separate rates claims from 7 the preliminary determination, making companies that have not made direct sales to the activities, SMW sets its own prices and United States: Analyzing and verifying separate ‘‘has free access to’’ the proceeds and adjustments based on verification rates claims from such companies would be a great profits of its export sales, would finance findings (see Final Calculation burden, and government involvement in export its own losses if they occurred, and Memorandum). To calculate FMV, the sales operations could be hard to fully evaluate verified factor amounts were multiplied absent sales to the United States. could purchase foreign currency with 5 Evidence supporting, though not requiring, a rubles or otherwise dispose of assets by the appropriate surrogate values for finding of de jure absence of central control (but has never actually had done so). the different inputs. We have used the includes: (1) An absence of restrictive stipulations Verification of sales transactions same surrogate values used in the associated with an individual exporter’s business revealed no evidence of government preliminary determination with the and export licenses; (2) any legislative enactments decentralizing control of companies; or (3) any involvement in the disposition of exception of certain corrections made other formal measures by the government based on verification or interested party decentralizing control of companies. 7 Although an export license was required in comments. 6 The factors considered include: (1) whether the order to make export sales, and the nominal Based on verification, we adjusted export prices are set by or subject to the approval purpose was to allow the licensing authority to certain factors’ value to reflect the actual of a governmental authority; (2) whether the approve the export price, SMW characterized this respondent has authority to negotiate and sign procedure as pro forma. Verification revealed no purity used in the production of subject contracts and other agreements; (3) whether the indication that such control had ever been merchandise. respondent has autonomy from the government in exercised: export licenses that had been issued, We have adjusted the surrogate inland making decisions regarding the selection of examined in the context of reviewing SMW’s sales, freight charge for transporting factor management; and (4) whether the respondent appeared to reflect without exception prices retains the proceeds of its export sales and makes negotiated between SMW and its customers. The inputs from supplier to factory to reflect independent decisions regarding disposition of price negotiation process did not appear to involve the surrogate value for the actual profits or financing of losses (see Silicon Carbide). any government authorities. quantity being transported. We Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16445 recalculated inland freight distances merchandise was destined for the as corrected based on verification, is the between factory and input supplier United States. The companies assert that appropriate basis for our respective based on verified distances. the GSP forms were filled out by the LTFV determinations for AIOC, Razno, We calculated FMV based on factors producers after the sales were made, and Interlink. of production reported by the factories indicating that at the time of sale the We disagree that BIA is warranted for which produced the subject producers did not know the destination. Hochschild’s failure to report a pre-POI merchandise for the above-mentioned Avisma and SMW argue that the contract discovered at verification; exporters. The factors used to produce customer’s address is irrelevant because instead, we have included in pure and alloy magnesium include magnesium is a commodity product that Hochschild’s sales listing information materials, labor, and energy. To can be sold anywhere in the world. gathered at verification regarding this calculate FMV, the reported quantities Finally, the companies point out that sale. were multiplied by the appropriate verification confirmed that there was no We agree with petitioners that surrogate values for the different inputs. indication that either Avisma or SMW Hochschild and Greenwich Metals (For a complete analysis of surrogate failed to report any U.S. sales. incorrectly reported certain sales as U.S. values, see our final calculation sales. Verification demonstrated that the memorandum.) We then added amounts DOC Position contracts setting terms of sale by these for general expenses and profit, the cost We agree with Avisma and SMW. companies’ suppliers included an of containers and coverings, and other Based on our examination of sales and identification of the shipment expenses incident to placing the export documents at verification, we destination. This fact outweighs the merchandise in condition packed and found nothing to indicate any contention that the companies had the ready for shipment to the United States. unreported instances of merchandise option of transshipping the merchandise We used the same methodology as in being sold with the knowledge at the to another country. Accordingly, we the preliminary determination to value time of sale that the ultimate destination determine that Greenwich did not make the raw materials, except where was the United States. We verified that any U.S. sales of alloy magnesium corrections were possible or necessary. simply because a purchaser’s address is during the POI and we have not Verification in the United States does not mean that calculated a company-specific alloy the merchandise is destined for the magnesium margin for Greenwich. As provided in section 776(b) of the United States. In fact, magnesium sold Instead, Greenwich will be subject to Act, we verified the information to purchasers with U.S. addresses was the ‘‘Russia-wide’’ rate. We have also submitted by respondents for use in our frequently shipped to non-U.S. eliminated these improperly included final determination. We used standard destinations. Although SMW did, as sales from Hochschild’s sales listing and verification procedures, including some exporters stated, eventually learn have assigned the appropriate margin to examination of relevant accounting and of some of its merchandise’s sale to U.S. Hochschild’s European supplier. production records and original source customers, this knowledge always came Finally, with the exception of those documents provided by respondents. after SMW had sold the merchandise. participating exporters that have Critical Circumstances remedied reporting deficiencies, any Comment 2: Completeness and exporter that improperly did not report In accordance with section 735(a)(3) Accuracy of Various Resellers’ POI sales is subject to suspension of of the Act, we determine that critical Reporting of U.S. Sales liquidation at the ‘‘Russia-wide’’ rate circumstances exist with respect to Petitioners contend that total or imports of alloy magnesium from the (which is based entirely on BIA), as are partial BIA is warranted for AIOC, all companies that reported having Russian Federation. No new information Razno, Interlink, Hochschild and has been placed on the record since our made no sales. Greenwich Metals because these preliminary determination. Therefore, companies made various errors in Comment 3: Scope we continue to find that critical reporting U.S. sales that were not Petitioners contend that the circumstances exist with respect to all revealed until just prior to, or during, Department should clarify the scopes in imports of alloy magnesium except verification. Petitioners also advocate these proceedings. Petitioners argue that those of Gerald Metals and SMW. total BIA for each exporter for which ‘‘off-specification’’ pure magnesium Interested Party Comments any verification revealed that the (i.e., magnesium that is less than 99.8% exporter failed to report sales of the pure magnesium but that otherwise can Comment 1: Russian Manufacturers’ be and is considered pure magnesium Knowledge of Destination subject merchandise, as well as for all companies that refused verification. by consumers) should be considered Petitioners contend that Avisma and The companies argue that BIA is not within the scope of the pure magnesium SMW should be assigned BIA margins warranted because the errors made were proceeding instead of within the scope because they knew at the time of sale to not serious and were corrected. of the alloy magnesium proceeding. third-country resellers that the Petitioners propose revised scopes to DOC Position merchandise was destined for the achieve this end. United States. Petitioners note that the We agree with petitioners in part. Greenwich argues that the proposed producers completed GSP forms, sold to We determined that the errors cited revised scopes are flawed because they customers that had U.S. addresses, and by petitioners for AIOC, Razno, and appear to include secondary magnesium were explicitly told by some customers Interlink were inadvertent and were, in (i.e., magnesium that has been remelted of merchandise’s destination. Because of the end, verified. There is nothing to and recast) as subject merchandise. this knowledge on Avisma’s and SMW’s indicate that the omission of these sales part, petitioners argue, resellers would have had any impact on these DOC Position claiming to be the first to sell to a U.S. companies’ margins. Further, we are We agree with petitioners some customer in the sales process should be satisfied that the record is now complete magnesium, despite not meeting the assigned the ‘‘Russia-wide’’ rate. and accurate as to these companies’ POI normal definition (based on magnesium Avisma and SMW argue that they did sales of subject merchandise. content) of pure magnesium, not know at the time of sale that Accordingly, the reported information, nevertheless may be used in 16446 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices applications that normally require pure subsidized, and (2) generally not the by-products which are not captured magnesium. In fact, the records in the applicable because they are established in costs associated with primary concurrent antidumping investigations pursuant to individual negotiations. product production. Finally, Avisma of pure and alloy magnesium from the Even if the Department were to accept and SMW argue that an adjustment to People’s Republic of China show sales Brazil electricity rate schedules cost of materials is the appropriate of such magnesium were supplied to submitted by Avisma and SMW, adjustment because the Department is fulfill orders for pure magnesium. petitioners contend, there would be no using the factors-of-production We therefore have revised the scopes way to determine which rate would be methodology to calculate FMV. of these investigations to include this appropriate for Avisma and SMW. off-specification pure magnesium DOC Position within the definition of pure DOC Position We agree with petitioners in part and magnesium, described as any product We agree with Avisma and SMW that with Avisma and SMW in part. First, (1) that is 50 percent or more primary the Brazil ‘‘large industry user’’ rate is because the by-products result from the magnesium, and (2) that does not meet the rate they would have received had production process and are either used any ASTM definition of alloy they been electricity consumers in by the magnesium producer or sold for magnesium (based on specific Brazil during the POI. For each use by some other company in the NME percentages of one or more alloying company, the record contains verified country, we agree with Avisma and agents). figures on both POI magnesium SMW that they are a factor whose value We note that our consultations with production and the number of kilowatt must be taken into account in our the Bureau of Mines established that the hours needed to produce one metric ton. calculation of the fair value against industry standards for alloy magnesium Dividing the total number of kilowatt which to test U.S. prices. Second, we are ASTM standards. (See Final hours used in POI magnesium have adjusted surrogate CIF import Calculation Memorandum.) production by the number of hours in value of the by-products to reflect Consequently, we have not adopted the POI clearly shows that, at least concentration differences. However, no petitioner’s proposed scope language during the POI, the kilowatt capacity of adjustment to value for transportation that would describe off-specification each user was significantly higher than costs is appropriate. For by-products, as pure magnesium as any product, inter the minimum necessary to receive the for material factors of production alia, that does not meet ASTM ‘‘large industrial user’’ rate in effect in consumed in the production process, we standards or other industry standards. Brazil during the POI. Although consider the import values used to be Although ASTM standards define subsidization would not necessarily surrogates for ex-factory, freight- pure magnesium as not less than 99.8 render a surrogate value inappropriate, exclusive prices from suppliers to percent magnesium, metal with a petitioners have not in this instance consumers. Third, we agree with primary magnesium content below that presented evidence of subsidization petitioners that the proper adjustment is level should be captured in the scope of (providing only a vague reference to a reduction in the cost of manufacture. the pure magnesium investigations if it possible subsidies in the Amazon This adjustment increases the surrogate cannot legitimately be defined as a region). overhead amount commensurately with specific ASTM alloy magnesium. Comment 5: By-Product Offset the value of the by-product, thereby The fact that both scopes capture only Methodology eliminating the need for valuing any merchandise with primary magnesium Petitioners contend that the additional processing-related elements. content of 50 percent or greater means Additionally, an adjustment to cost of that merchandise composed of 50 Department’s decision to permit an offset to material surrogate values to manufacture is consistent with percent or more secondary magnesium Department practice in other NME would not fall within either scope. account for by-products of the 8 magnesium production process was investigations (see, e.g., Coumarin ). Comment 4: Surrogate Value for erroneous for the following reasons: (1) Comment 6: Surrogate Factory Electricity The producers were unable to Overhead Avisma and SMW contend that demonstrate for the record that any Petitioners contend that the published, public information indicates economic benefit accrued to the firm Department must account for costs that large industrial users of electricity and that the benefit was linked to the associated with the rebuilding of in Brazil receive a lower electricity rate production of the subject merchandise; electrolytic cells by adjusting upward (compared to other types of users). (2) the surrogate value used was the surrogate overhead percentage used Respondents assert that information on incorrect in that it did not correspond in the preliminary determinations. the record indicates that Avisma and to the actual purity level of the by- Petitioners suggest using their own SMW are ‘‘large industrial users’’ of product produced and was not experience as to the cost of cell rebuilds electricity and, as such, would receive calculated net of transportation and expressed as a percentage of the sum of a lower electricity rate if they bought processing costs; and (3) any adjustment material, labor, and energy costs. electricity in Brazil. Therefore, determined to be appropriate should Petitioners also suggest that the respondents argue the appropriate value have been made to the cost of Department should, in calculating FMV, for electricity is $0.0235/Kwh. manufacture rather than cost of use an overhead ratio that includes Petitioners contend that the materials so as not to understate factory energy in the numerator since verified Department should continue to use the overhead, general expenses, and profit. energy amounts for the producers $0.055/Kwh rate for electricity value Avisma and SMW argue that there is represent only energy directly related to because the record does not show that nothing on the record indicating that production. the rate advocated by Avisma and SMW they should not qualify for by-product Avisma, SMW, Interlink, Razno, and is the rate actually paid by the offsets. With respect to valuation, the AIOC argue that an adjustment to magnesium industry in Brazil. companies do not dispute that an Petitioners charge that the record shows appropriate purity level adjustment 8 Final Determination of Sales at Less Than Fair that the Brazil ‘‘large industrial user’’ should be made, but contend that there Value: Coumarin from the People’s Republic of rates are (1) below cost because they are are no processing costs associated with China (59 FR 66895, December 28, 1994) Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16447 overhead based upon petitioners’ cell responding resellers failed to provide adjustments in prior NME proceedings rebuild experience would be their selling expenses (despite a (see, e.g., Coumarin and Sparklers 9). inconsistent with both the Act and Departmental request to do so in the Moreover, to do so simply does not Department practice and is, therefore, questionnaire), the Department should make sense because it amounts to a unwarranted. With respect to energy, add an amount based on financial comparison of apples and oranges. In these respondents argue that (1) statements submitted by resellers. NME proceedings, the FMV is normally inclusion in the denominator of the With respect to surrogate SG&A for based completely on factors valued in a overhead ratio should be limited to manufacturers, Avisma, SMW, Interlink, surrogate country (without regard to, for indirect energy costs, and (2) only direct Razno and AIOC argue that the figures example, actual selling expenses) on the energy should be included in the base put forward by petitioner are bogus premise that the actual experience to which the overhead percentage is because they involve application to an cannot be meaningfully considered. applied in calculating surrogate inflation-adjusted base of a percentage Were the question simply one of overhead. that is based on figures that have not ‘‘traditional’’ dumping by trading been adjusted for inflation. These DOC Position companies, the market-economy price- respondents argue that their own to-price or price-to-CV methodology We agree with respondents that the submitted surrogate information is would appropriately be employed; adjustment proposed by petitioners is superior to petitioners’ information actual selling expenses would have been not appropriate in this instance. because it is inflation-adjusted. With accounted for on both U.S. prices and Although we may take into account respect to the question of whether to foreign market prices (or, if appropriate, petitioners’ experience in extraordinary include in FMV an amount for reseller constructed value, in which case other circumstances, we generally do not general expenses, the five general expenses and profit would also consider petitioners’ costs as an aforementioned respondents, along with have been taken into account). appropriate benchmark by which to test Greenwich, Hochschild, and Gerald Accordingly, we have continued to the accuracy of surrogate country Metals, assert that petitioners have value general expenses and profit by values. Further, the fact that one provided no convincing rebuttal to the simply applying to the surrogate-based element (i.e, cell rebuild) of factory Department’s recent rejection of such a cost of manufacture the greater of either overhead has significant cost associated request in Coumarin. appropriate surrogate percentages or the with it does not invalidate the overhead statutory minima. percentage used. Factory overhead is a DOC Response combination of elements, some of which With respect to the question of the Comment 8: Market Orientation (Russia may be more or less expensive appropriate surrogate for manufacturer and Magnesium Industry) depending on the product or even the general expenses, we agree with Avisma and SMW contend that, company. The Department has rejected Avisma, SMW, Interlink, Razno and although they ‘‘do not expect the item-by-item evaluation of overhead AIOC that use of inflation-adjusted magnesium investigation[s] to result in components in the past (see the final figures is the most appropriate basis for the revocation of Russia’s NME status,’’ determination of Tapered Roller calculating the SG&A ratio. consideration of whether to revoke Accordingly, we have used either an Bearings and Parts Thereof, Finished or Russia’s NME status should hinge upon appropriate figure from the record or the Unfinished, from the Socialist Republic whether there are concrete indicators of statutory minimum (10%), whichever is of Romania, (52 FR 17433, 17436, May market-driven activity rather than on greater. 8, 1987)), and we see no reason to alter the degree to which the market has this practice in this case. We also agree with respondents that addition to FMV of actual reseller moved toward ‘‘an orderly Western- Further, there is no contrary evidence style brand of capitalism.’’ The which indicates that the overhead general expenses would be inappropriate. Given that Russia is an companies also state for the record that percentage used for the preliminary they demonstrated that the Russian determinations is an inappropriate NME and the Russian magnesium industry has not been found to be magnesium industry is market oriented, surrogate figure. In the absence of an but opted not to pursue this tack actual overhead for Brazil’s magnesium market oriented, section 773(c) of the Act requires that the Department because they anticipated favorable industry, the Department will continue outcomes using factors of production to rely on the surrogate overhead measure U.S prices against the factors of production (materials, labor, energy, valued in a surrogate country. percentage used in the preliminary Petitioners state that the records in determination. and overhead) used in producing the merchandise, valued in an appropriate these investigations offer no basis for Comment 7: Surrogate General surrogate country, plus general determining that Russia is no longer an Expenses and Profit expenses, profit and containers. The NME for purposes of these Petitioners argue that the percentage Act’s only specific guidance as to the investigations, nor do the records used to account for producers’ general valuation of general expenses, profit and support a finding that the magnesium expenses in calculating FMV should be containers is to establish minima for the industry is market oriented. changed from the statutory minimum to first two. Our regulations, meanwhile, DOC Position instruct us to ‘‘include in this 26.92 percent, which is the ratio of As discussed in the ‘‘Foreign Market calculation of constructed value an SG&A expenses to cost of goods sold Value’’ section, above, we have amount for general expenses and profit, based on figures reported in the 1992 determined that it would be as required by section 773(e)(1)(B) of the financial statement of an aluminum inappropriate to alter Russia’s Act. (19 CFR 353.52(c)) The Department manufacturer in Brazil. Petitioners also designation as an NME, and that the has not interpreted the Act and the argue that an additional amount should Russian magnesium sector is not a regulations as requiring use of actual be included in FMV calculations in market-oriented industry. Should these order to reflect general expenses expenses and profit for these FMV incurred and profit realized by each components when FMV is based on 9 Final Determination of Sales at Less Than Fair reseller involved in the sales process. factors of production; the Department Value: Sparklers from the People’s Republic of Petitioners argue that, because the has also explicitly rejected such China (56 FR 20588, May 6, 1991) 16448 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices issues arise in future antidumping 772(d)(2)(B) as not requiring the for thermal losses (which petitioners proceedings involving merchandise deduction of an intra-NME transfer of suggest should be at least 30 percent). from the Russian Federation, the status funds, even if it is in the form of an Avisma, SMW, AIOC, Interlink and of market reforms and market export tax. Finally, we note that, in Razno argue that a value of $142.86/MT orientation of specific industries will be these proceedings, even if a reduction to is correct because of an error in the carefully evaluated if raised by parties USP to account for the export tax had source of petitioners’ figure. been deemed appropriate, it would not in those proceedings. DOC Position have resulted in positive margins for Comment 9: Separate Rates any company receiving a calculated We agree with Avisma et al. as to the Petitioners argue that Avisma and rate. proper conversion of natural gas SMW are subject to de jure and de facto quantities. We do not need to address government control and thus do not Comment 11: Surrogate Country the question about the appropriate value Selection warrant separate rates. for LPG because we are basing the value SMW and Avisma counter that they Avisma and SMW contend that for this factor on natural gas. With are fully entitled to separate rates. Poland, not Brazil, is the more respect to actual use of heavy oil and appropriate surrogate country because natural gas, we did not discover the DOC Position Poland is the market economy country error claimed by petitioners at We agree with respondents in part. As that most resembles the Russian verification and thus have not changed is detailed above, we find that SMW has Federation in economic terms and the reported quantities. demonstrated the absence of de jure and because Poland produces comparable de facto government control and thus is merchandise. The companies assert that, Comment 13: Quantity and Surrogate entitled to a separate rate in both in selecting a surrogate country, Value for Timber proceedings. However, because Avisma economic similarity should outweigh Petitioners contend that the did not make any POI U.S. sales of production of the investigated product. Department, in calculating FMV, should subject merchandise in either Petitioners argue that Brazil is the use the information on the record to proceeding, it is not necessary to appropriate surrogate country citing, value the timber used by Avisma and address the question of whether Avisma among other factors weighing against SMW and convert from cubic meters to should be assigned a separate rate since selection of Poland, the fact that Poland kilograms. such an action would result in no produces an insignificant quantity of Avisma, SMW, AIOC, Interlink and difference in the deposit rate that would aluminum and no magnesium. Razno advocate conversion of reported apply to any future direct U.S. sales by figures to board feet rather than DOC Response Avisma. kilograms, and use of the POI value of We agree with petitioners. Selection lumber per board foot in the United Comment 10: Export Taxes of a proper surrogate country must be States. Petitioners argue that a tax imposed made on case-by-case basis, in by the Russian government on consideration of the Department’s DOC Position magnesium exports must be accounted judgment of how to weigh facts on the We agree with petitioners and have for in making LTFV comparisons record within the parameters prescribed valued timber based on their suggested because (1) section 772(d)(2)(B) requires by statute and regulations, as well as methodology. With respect to the deduction from U.S. price of export case precedent. Based on our experience contention of Avisma et al., use of U.S. taxes, and (2) the tax imposition had the in this case and previous proceedings values for production factors is not effect of reducing net receipts to the involving magnesium, we judged appropriate in NME proceedings, Russian producers selling their electricity use to be a very important particularly when surrogate-country magnesium. factor and thus gave it great weight values are available. under the rubric of product DOC Position Comment 14: Surrogate Values of comparability. Given the economic Carnallite Concentrate and Dehydrated We disagree, and have not accounted comparability of Brazil to the Russian Carnallite for the export tax in our LTFV Federation, and since Brazil is a calculations. With respect to the significant producer of electricity- Petitioners argue that the price of reduction of net receipts to Russian intensive products such as magnesium dolomite is not an appropriate surrogate producers, the premise in determining and aluminum, we continue to find that for carnallite concentrate and values in NME proceedings is that Brazil is the most appropriate surrogate dehydrated carnallite (which, unlike pecuniary aspects of internal country in this case. dolomite, are processed materials). transactions are considered meaningless Petitioners advocate increasing the and thus ignored. The export tax paid to Comment 12: Quantity and Surrogate dolomite value used in the preliminary an NME government is an intra-NME Value of Natural Gas, Liquid Petroleum determinations to account for transfer of funds between a Russian Gas, and Heavy Oil processing associated with the producer and the Russian government. Petitioners contend that the manufacture from raw carnallite of As such, it is inappropriate to account Department should correct for a either concentrated carnallite or for such transfers in our LTFV analysis mathematical error made in converting dehydrated carnallite. just as it is NME prices and costs. a surrogate value for natural gas from a Avisma and SMW argue that the price The Department has interpreted price per cubic meter to a price per of dolomite is a reasonable surrogate for section 772(e)(2), another paragraph metric ton. Petitioners also suggest a the price of carnallite concentrate dealing with the general question of value of $290/MT to be the appropriate because the two materials have similar reductions to U.S. price, as not requiring surrogate value for liquid petroleum gas. magnesium contents and the processing the deduction of selling expenses from Petitioners claim that, for both Avisma necessary to transform raw carnallite ESP when FMV is based on factors of and SMW, reported usage of heavy oil into carnallite concentrate is minimal. production. The issue of the export tax and natural gas appears to represent The companies contend that the value is analogous. Similarly, we interpret theoretical amounts that do not account for calcinated dolomite is not a suitable Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16449 surrogate for carnallite concentrate Avisma, SMW, AIOC, Interlink and the Customs Service to continue to because the two materials have Razno argue that no adjustment is suspend liquidation of all entries of completely different chemistries appropriate since dollar-denominated pure magnesium from the Russian (chiefly, the absence of magnesium prices of commodity chemicals cannot Federation that are entered, or chloride in calcinated dolomite) and are be assumed to have risen between 1992 withdrawn from warehouse, for used in substantially different and the POI. consumption on or after November 7, magnesium production processes. The DOC Position 1994, which is the date of publication two companies advocate calculation of of our notice of preliminary We disagree with petitioners. Since a value for dehydrated carnallite used determination in the Federal Register. by SMW based on Avisma’s factors of we do not know the dates or exchange The following companies will be production for that commodity. rates used to convert these values into dollars, an appropriate adjustment (if excepted from these instructions DOC Position any) for dollar inflation cannot be because their sales of pure magnesium We agree with Avisma and SMW. We determined. Further, the magnitude of were found not to have been sold below used the price of dolomite in Brazil, as any adjustment would likely be small fair value: AIOC, Amalgamet, Gerald provided in the petition, as the since the data are nearly Metals, Greenwich Metals, Hochschild surrogate for carnallite concentrate. contemporaneous with the POI. Partners, Hunter Douglas, Interlink, MG Dolomite, with a comparable Metals, Razno Alloys, or SMW. These Comment 17: Concentration/Purity magnesium chloride content, is the most companies will be excluded from an Levels of Material Inputs appropriate substitute available in the antidumping duty order should one be absence of an actual price in Brazil for Petitioners contend that appropriate issued. carnallite concentrate. We have also adjustments should be made for We are also directing the Customs calculated a value for dehydrated differences in concentration or purity Service to suspend liquidation of all carnallite based on Avisma’s factors of between surrogate values on the one production. hand and materials used in production entries of alloy magnesium from the on the other hand. However, petitioners Russian Federation entered, or Comment 15: Quantity and Surrogate also argue that the Department should withdrawn from warehouse, for Value of Labor not assume that surrogate values consumption on or after August 9, 1994 Petitioners advocate corrections to represent 100 percent concentration and (i.e., the date that is 90 days prior to the reported labor figures based on therefore should make no adjustment date of publication of this notice in the verification findings. Petitioners also where the concentration applicable to a Federal Register). Gerald Metals and argue that the Department should use as surrogate value cannot be determined. SMW will be excepted from these a surrogate 1993 wage rates in Brazil to DOC Position instructions because their sales of alloy value unskilled labor. magnesium were found not to have been Where we have been able to sold below fair value. The Customs DOC Position determine the purity or concentration Service shall, in each proceeding, We agree with petitioners and have applicable to a surrogate value, we have require a cash deposit or posting of a both corrected the reported labor figures adjusted for differences, if any, between and adopted the alternative value for the surrogate and the actual material. bond equal to the estimated amount by unskilled labor. Otherwise, we have attempted no which the FMV exceeds the USP as adjustment for purity or concentration. shown below. These suspension of Comment 16: Inflation Adjustments for liquidation instructions will remain in Brazil Values Continuation of Suspension of effect until further notice. Liquidation Petitioners contend that 1992 Brazil The weighted-average dumping values used as surrogate values should In accordance with section margins are as follows: be adjusted for inflation. 735(c)(4)(A) of the Act, we are directing A. PURE MAGNESIUM Weighted- average Exporter/manufacturer/producer margin per- centages AIOC* ...... 0.00 AIOC/Other ...... 100.25 Gerald Metals* ...... 0.00 Gerald Metals/Other ...... 100.25 Greenwich Metals* ...... 0.00 Greenwich Metals/Other ...... 100.25 Hochschild Partners* ...... 0.00 Hochschild Partners/Other ...... 100.25 Hunter Douglas* ...... 0.00 Hunter Douglas/Other ...... 100.25 Interlink* ...... 0.00 Interlink/Other ...... 100.25 MG Metals/Avisma ...... 0.00 MG Metals/SMW ...... 0.00 MG Metals/Other ...... 100.25 Razno Alloys/SMW ...... 0.00 Razno Alloys/Other ...... 100.25 SMW/SMW ...... 0.00 16450 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices A. PURE MAGNESIUMÐContinued Weighted- average Exporter/manufacturer/producer margin per- centages SMW/Other ...... 100.25 Russia-wide ...... 100.25 * This company has not disclosed for the public record the identity of its supplier or suppliers in Russia. Upon public disclosure of this informa- tion to the Department, we will notify the Customs Service that sales through certain supply channels have an LTFV margin of zero and thus an exclusion from any order resulting from this investigation. Until and unless such disclosure is made, all entries will be subject to the ``Russia- wide'' deposit rate. B. ALLOY MAGNESIUM Weighted average Critical Manufacturer/producer/exporter margin per- circumst. centages Gerald Metals* ...... 0.00 No. Gerald Metals/Other ...... 153.65 Yes. SMW/SMW ...... 0.00 No. SMW/Other ...... 153.65 Yes. Russia-wide ...... 153.65 Yes. * This company has not disclosed for the public record the identity of its supplier or suppliers in Russia. Upon public disclosure of this informa- tion to the Department, we will notify the Customs Service that sales through certain supply channels have an LTFV margin of zero and thus an exclusion from any order resulting from this investigation. Until and unless such disclosure is made, all entries will be subject to the ``Russia- wide'' deposit rate. ITC Notification or threat of material injury does not merchandise entered for consumption In accordance with section 735(d) of exist, that proceeding will be terminated on or after the effective date of the the Act, we have notified the ITC of our and all securities posted will be suspension of liquidation. determinations. As our final refunded or cancelled. If, in either These determinations are published determinations are affirmative, the ITC proceeding, the ITC determines that pursuant to section 735(d) of the Act will within 45 days determine whether such injury does exist, the Department and 19 CFR 353.20(a)(4). imports of either product are materially will issue an antidumping duty order injuring, or threaten material injury to, for the appropriate proceeding directing Susan G. Esserman, the U.S. industry. In each proceeding, if Customs officials to assess antidumping Assistant Secretary for Import the ITC determines that material injury, duties on all imports of the subject Administration. APPENDIX I CASE rus. Supp. QR fil- Verif. start Verif. end Company Rus. pure alloy ing date date date Location Hunter Douglas ...... X ...... 12/8 12/8 Chicago. MG Metals ...... X ...... 12/6 12/7 Chicago. Gerald Metals ...... X X 11/1, 30 ...... 12/13 1/25 Lausanne and Stamford CT. Interlink ...... X ...... 11/8 ...... 12/15 1/10 Fribourg and NYC. SMW ...... X X ...... 1/18 1/19 Solikamsk, Russia. AVISMA ...... X ...... 1/16 1/17 Berezniki, Russia. Razno ...... X ...... 1/23 1/24 Zurich. Hochschild Partners ...... X ...... 1/26 1/27 NYC. Greenwich Metals ...... X X ...... 1/30 1/31 Greenwich, CT. Amalgamet ...... X X 1/4 ...... 2/1 2/2 Toronto. AIOC ...... X ...... 11/21 ...... 12/15 2/9 NYC. [FR Doc. 95–7777 Filed 3–29–95; 8:45 am] U.S. DEPARTMENT OF COMMERCE ACTION: Cancellation. BILLING CODE 3510±DS±P Minority Business Development SUMMARY: The Minority Business Agency Development Agency is cancelling the Native American Business announcement to solicit competitive Development Center Applications: applications to organizations to operate Minnesota its Minnesota Native American Business Development Center. The solicitation AGENCY: Minority Business was originally published in the Federal Development Agency, Commerce. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16451 Register, Wednesday, January 25, 1995, composed of $165,000 plus the Audit regulations can be obtained at the above Vol. 60, No.16; 4890. Fee amount of $4,125. If the address. 11.801 Native American Program recommended applicant is the current Pre-Award Activities—Applicants are incumbent organization, the award will (Catalog of Federal Domestic Assistance) hereby notified that if they incur any be for 12 months. costs prior to an award being made, they Dated: March 24, 1995 Competition is open to individuals, do so solely at the risk of not being Donald L. Powers, non-profit and for-profit organizations, reimbursed by the Government. Federal Register Liaison Officer, Minority state and local governments, American Notwithstanding any verbal assurance Business Development Agency. Indian tribes and educational that an applicant may have received, [FR Doc. 95–7772 Filed 3–29–95; 8:45 am] institutions. Applications will be there is no obligation on the part of the BILLING CODE 3510±21±P evaluated on the following criteria: the Department of Commerce to cover pre- experience and capabilities of the firm award activities. and its staff in addressing the needs of Recipients and subrecipients are DEPARTMENT OF COMMERCE the business community in general and, subject to all Federal laws, and Federal specifically, the special needs of Native and Departmental regulations, policies, Minority Business Development American businesses, individuals and and procedures applicable to Federal Agency organizations (45 points), the resources financial assistance awards. available to the firm in providing Native American Business Delinquent Federal Debts—No award business development services (10 of Federal funds shall be made to an Development Center Applications: points); the firm’s approach (techniques Minnesota applicant who has an outstanding and methodologies) to performing the delinquent Federal debt until either the AGENCY: Minority Business work requirements included in the delinquent account is paid in full, Development Agency, Commerce. application (25 points); and the firm’s repayment schedule is established and estimated cost for providing such ACTION: Notice. at least one payment is received, or assistance (20 points). other arrangements satisfactory to the An application must receive at least SUMMARY: In accordance with Executive Department of Commerce are made. 70% of the points assigned to each Order 11625 and 15 U.S.C. 1512, the Name Check Policy—All non-profit evaluation criteria category to be Minority Business Development Agency and for-profit applicants are subject to a considered programmatically acceptable (MBDA) is soliciting competitive name check review process. Name and responsive. Those applications applications from organizations to checks are intended to reveal if any key operate its Native American Business determined to be acceptable and responsive will then be evaluated by the individuals associated with the Development Center (NABDC). applicant have been convicted of or are The purpose of the NABDC is to Director of MBDA. Final award selections shall be based on the number presently facing criminal charges such provide integrated business as fraud, theft, perjury or other matters development services to Native of points received, the demonstrated responsibility of the applicant, and the which significantly reflect on the American entrepreneurs. The recipient applicant’s management honesty or will provide service in the Minnesota determination of those most likely to further the purpose of the MBDA financial integrity. Metropolitan Area. The award number Award Termination—The of the NABDC will be 05–10–95006–01. program. Negative audit findings and recommendations and unsatisfactory Departmental Grants Officer may DATES: The closing date for applications terminate any cooperative agreement in is May 1, 1995. Applications must be performance under prior Federal awards may result in an application not being whole or in part at any time before the received on or before May 1, 1995. date of completion whenever it is Anticipated processing time of this considered for funding. The applicant with the highest point score will not determined that the award recipient has award is 120 days. A pre-application failed to comply with the conditions of conference will be held at 10:00 a.m., on necessarily receive the award. If an application is selected for the cooperative agreement. Examples of April 11, 1995, at the Chicago Regional funding, MBDA has no obligation to some of the conditions which can cause Office, 55 East Monroe Street, Suite provide any additional future funding in termination are failure to meet cost- 1406, Chicago, Illinois 60603. connection with that award. Renewal of sharing requirements; unsatisfactory ADDRESSES: Completed application an award to increase funding or extend performance of the NABDC work packages should be submitted to the the period of performance is at the total requirements; and reporting inaccurate U.S. Department of Commerce, Minority discretion of MBDA. or inflated claims of client assistance. Business Development Agency, MBDA Executive order 12372, Such inaccurate or inflated claims may Executive Secretariat, 14th and ‘‘Intergovernmental Review of Federal be deemed illegal and punishable by Constitution Avenue, N.W., Room 5073, Programs,’’ is not applicable to this law. Washington, D. C. 20230. program. Federal funds for this project False Statements—A false statement FOR FURTHER INFORMATION AND AN include audit funds for non-CPA on an application for Federal financial APPLICATION PACKAGE, CONTACT: David recipients. In event that a CPA firm assistance is grounds for denial or Vega, Regional Director at (312) 353– wins the competition, the funds termination of funds, and grounds for 0182. allocated for audits are not applicable. possible punishment by a fine or SUPPLEMENTARY INFORMATION: The The collection of information imprisonment as provided in 18 U.S.C. funding instrument for this project will requirements for this project have been 1001. be a cooperative agreement. Contingent approved by the Office of Management Primary Applicant Certifications—All upon the availability of Federal funds, and Budget (OMB) and assigned OMB primary applicants must submit a the cost of performance for the first control number 0640–0006. Questions completed Form CD–511, budget period (13 months) from concerning the preceding information ‘‘Certifications Regarding Debarment, September 1, 1995 to September 30, can be answered by the contact person Suspension and Other Responsibility 1996, is estimated at $198,971. The total indicated above, and copies of Matters; Drug-Free Workplace Federal amount is $169,125 and is application kits and applicable Requirements and Lobbying.’’ 16452 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Nonprocurement Debarment and made equipment and products with Business Development Center Suspension—Prospective participants funding provided under this program in Applications: Cincinnati (as defined at 15 CFR part 26, § 26.105) accordance with Congressional intent as are subject to 15 CFR part 26, set forth in the resolution contained in AGENCY: Minority Business ‘‘Nonprocurement Debarment and Public Law 103–121, Sections 606 (a) Development Agency, Commerce. Suspension’’ and the related section of and (b). ACTION: Notice. the certification form prescribed above 11.801 Native American Program applies. SUMMARY: In accordance with Executive (Catalog of Federal Domestic Assistance) Drug-Free Workplace—Grantees (as Order 11625 and 15 U.S.C. 1512, the defined at 15 CFR part 26, § 26.605) are Dated: March 24, 1995. Minority Business Development Agency subject to 15 CFR part 26, Subpart F, Donald L. Powers, (MBDA) is soliciting competitive ‘‘Governmentwide Requirements for Federal Register Liaison Officer, Minority applications from organizations to Drug-Free Workplace (Grants)’’ and the Business Development Agency. operate its Cincinnati, Ohio Minority related section of the certification form [FR Doc. 95–7773 Filed 3–29–95; 8:45 am] Business Development Center (MBDC). prescribed above applies. BILLING CODE 3510±21±P The purpose of the MBDC Program is Anti-Lobbying—Persons (as defined at to provide business development 15 CFR part 28, § 28.105) are subject to services to the minority business the lobbying provisions of 31 U.S.C. Native American Business Consultant community to help establish and 1352, ‘‘Limitation on use of Applications: Nationwide maintain viable minority businesses. To this end, MBDA funds organizations to appropriated funds to influence certain AGENCY: Minority Business identify and coordinate public and Federal contracting and financial Development Agency, Commerce. transactions,’’ and the lobbying section private sector resources on behalf of ACTION: Cancellation. of the certification form prescribed minority individuals and firms; to offer above applies to applications/bids for SUMMARY: The Minority Business a full range of client services to minority grants, cooperative agreements, and Development Agency is cancelling the entrepreneurs; and to serve as a conduit contracts for more than $100,000, and announcement to solicit competitive of information and assistance regarding loans and loan guarantees for more than applications to operate its Native minority business. The MBDC will $150,000, or the single family maximum American Business Consultant (NABC) provide service in the Cincinnati mortgage limit for affected programs, Program. This solicitation was originally Metropolitan Area. The award number whichever is greater. published in the Federal Register, of the MBDC will be 05–10–95008–01. Anti-Lobbying Disclosures—Any Thursday, January 12, 1995, Vol. 60, No. DATES: The closing date for applications applicant that has paid or will pay for 8, 2947. is May 1, 1995. Applications must be lobbying using any funds must submit 11.801 Native American Program received in MBDA’s Executive an SF–LLL, ‘‘Disclosure of Lobbying Secretariat on or before May 1, 1995. A (Catalog of Federal Domestic Assistance) Activities,’’ as required under 15 CFR pre-application conference will be held Dated: March 24, 1995. part 28, Appendix B. at 10:00 a.m., on April 11, 1995, at the Lower Tier Certifications—Recipients Donald L. Powers, Chicago Regional Office, 55 East Monroe shall require applications/bidders for Federal Register Liaison Officer, Minority Street, Suite 1406, Chicago, Illinois subgrants, contracts, subcontracts, or Business Development Agency. 60603. other lower tier covered transactions at [FR Doc. 95–7771 Filed 3–29–95; 8:45 am] ADDRESSES: Completed application any tier under the award to submit, if BILLING CODE 3510±21±P packages should be submitted to the applicable, a completed Form CD–512, U.S. Department of Commerce, Minority ‘‘Certifications Regarding Debarment, Business Development Agency, Suspension, Ineligibility and Voluntary Business Development Center Executive Secretariat, 14th and Exclusion-Lower Tier Covered Applications: Cleveland, OH Constitution Avenue, N.W., Room 5073, Transactions and Lobbying’’ and AGENCY: Minority Business Washington, D.C. 20230. disclosure form, SF–LLL, ‘‘Disclosure of Development Agency. Lobbying Activities.’’ Form CD–512 is FOR FURTHER INFORMATION AND AN ACTION: intended for the use of recipients and Cancellation. APPLICATION PACKAGE, CONTACT: David Vega at (312) 353–0182. should not be transmitted to DOC. SF– SUMMARY: The Minority Business LLL submitted by any tier recipient or Development Agency is cancelling the SUPPLEMENTARY INFORMATION: subrecipient should be submitted to announcement to solicit competitive Contingent upon the availability of DOC in accordance with the applications under for its Minority Federal funds, the cost of performance instructions contained in the award Business Development Center (MBDC) for the first budget period (13 months) document. Program to operate the Cleveland, Ohio from September 1, 1995 to September Indirect Costs—The total dollar MBDC. This solicitation was originally 30, 1996, is estimated at $198,971. The amount of the indirect costs proposed in published in the Federal Register, total Federal amount is $169,125 and is an application under this program must Monday, October 17, 1994, Vol. 59, No. composed of $165,000 plus the Audit not exceed the indirect cost rate 199, 52288. Fee amount of $4,125. The application negotiated and approved by a cognizant must include a minimum cost share of 11.800 Minority Business Development 15%, $29,846 in non-federal (cost- Federal agency prior to the proposed Center effective date of the award or 100% of sharing) contributions for a total project the total proposed direct costs dollar (Catalog of Federal Domestic Assistance) cost of $198,971. Cost-sharing amount in the application, whichever is Dated: March 24, 1995. contributions may be in the form of less. Donald L. Powers, cash, client fees, third party in-kind Buy American-Made Equipment or Federal Register Liaison Officer, Minority contributions, non-cash applicant Products—Applicants are hereby Business Development Agency. contributions or combinations thereof. notified that they are encouraged, to the [FR Doc. 95–7770 Filed 3–29–95; 8:45 am] The funding instrument for this extent feasible, to purchase American- BILLING CODE 3510±21±P project will be a cooperative agreement. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16453 If the recommended applicant is the Federal Programs,’’ is not applicable to False Statements—A false statement current incumbent organization, the this program. Federal funds for this on an application for Federal financial award will be for 12 months. For those project include audit funds for non-CPA assistance is grounds for denial or applicants who are not incumbent recipients. In event that a CPA firm termination of funds, and grounds for organizations or who are incumbents wins the competition, the funds possible punishment by a fine or that have experienced closure due to a allocated for audits are not applicable. imprisonment as provided in 18 U.S.C. break in service, a 30-day start-up Questions concerning the preceding 1001. period will be added to their first budget information can be answered by the Primary Applicant Certifications—All period, making it a 13-month award. contact person indicated above, and primary applicants must submit a Competition is open to individuals, copies of application kits and applicable completed Form CD–511, non-profit and for-profit organizations, regulations can be obtained at the above ‘‘Certifications Regarding Debarment, state and local governments, American address. The collection of information Suspension and Other Responsibility Indian tribes and educational requirements for this project have been Matters; Drug-Free Workplace institutions. approved by the Office of Management Requirements and Lobbying.’’ Applications will be evaluated on the and Budget (OMB) and assigned OMB Nonprocurement Debarment and following criteria: the knowledge, control number 0640–0006. Suspension—Prospective participants background and/or capabilities of the Awards under this program shall be (as defined at 15 CFR Part 26, Section firm and its staff in addressing the needs subject to all Federal laws, and Federal 105) are subject to 15 CFR Part 26, of the business community in general and Departmental regulations, policies, ‘‘Nonprocurement Debarment and and, specifically, the special needs of and procedures applicable to Federal Suspension’’ and the related section of minority businesses, individuals and financial assistance awards. the certification form prescribed above organizations (45 points), the resources Pre-Award Costs—Applicants are applies. available to the firm in providing hereby notified that if they incur any Drug Free Workplace—Grantees (as business development services (10 costs prior to an award being made, they defined at 15 CFR Part 26, Section 605) points); the firm’s approach (techniques do so solely at their own risk of not are subject to 15 CFR Part 26, Subpart and methodologies) to performing the being reimbursed by the Government. F, ‘‘Governmentwide Requirements for work requirements included in the Notwithstanding any verbal assurance Drug-Free Workplace (Grants)’’ and the application (25 points); and the firm’s that an applicant may have received, related section of the certification form estimated cost for providing such there is no obligation on the part of the prescribed above applies. assistance (20 points). An application Department of Commerce to cover pre- Anti-Lobbying—Persons (as defined at must receive at least 70% of the points award costs. 15 CFR Part 28, Section 105) are subject assigned to each evaluation criteria Outstanding Account Receivable—No to the lobbying provisions of 31 U.S.C. category to be considered award of Federal funds shall be made to 1352, ‘‘Limitation on use of programmatically acceptable and an applicant who has an outstanding appropriated funds to influence certain responsive. Those applications delinquent Federal debt until either the Federal contracting and financial determined to be acceptable and delinquent account is paid in full, transactions,’’ and the lobbying section responsive will then be evaluated by the repayment schedule is established and of the certification form prescribed Director of MBDA. Final award at least one payment is received, or above applies to applications/bids for selections shall be based on the number other arrangements satisfactory to the grants, cooperative agreements, and of points received, the demonstrated Department of Commerce are made. contracts for more than $100,000, and responsibility of the applicant, and the Name Check Policy—All non-profit loans and loan guarantees for more than determination of those most likely to and for-profit applicants are subject to a $150,000 or the single family maximum further the purpose of the MBDA name check review process. Name mortgage limit for affected programs, program. Negative audit findings and checks are intended to reveal if any key whichever is greater. recommendations and unsatisfactory individuals associated with the Anti-Lobbying Disclosures—Any performance under prior Federal awards applicant have been convicted of or are applicant that has paid or will pay for may result in an application not being presently facing criminal charges such lobbying using any funds must submit considered for award. The applicant as fraud, theft, perjury or other matters an SF-LLL, ‘‘Disclosure of Lobbying with the highest point score will not which significantly reflect on the Activities,’’ as required under 15 CFR necessarily receive the award. Periodic applicant’s management honesty or Part 28, Appendix B. reviews culminating in year-to-date financial integrity. Lower Tier Certifications—Recipients evaluations will be conducted to Award Termination—The shall require applications/bidders for determine if funding for the project Departmental Grants Officer may subgrants, contracts, subcontracts, or should continue. Continued funding terminate any grant/cooperative other lower tier covered transactions at will be at the total discretion of MBDA agreement in whole or in part at any any tier under the award to submit, if based on such factors as the MBDC’s time before the date of completion applicable, a completed Form CD–512, performance, the availability of funds whenever it is determined that the ‘‘Certifications Regarding Debarment, and Agency priorities. award recipient has failed to comply Suspension, Ineligibility and Voluntary The MBDC shall be required to with the conditions of the grant/ Exclusion-Lower Tier Covered contribute at least 15% of the total cooperative agreement. Examples of Transactions and Lobbying’’ and project cost through non-Federal some of the conditions which can cause disclosure form, SF-LLL, ‘‘Disclosure of contributions. To assist in this effort, the termination are failure to meet cost- Lobbying Activities.’’ Form CD–512 is MBDC may charge client fees for sharing requirements; unsatisfactory intended for the use of recipients and services rendered. Fees may range from performance of the MBDC work should not be transmitted to DOC. SF- $10 to $60 per hour based on the gross requirements; and reporting inaccurate LLL submitted by any tier recipient or receipts of the client’s business. or inflated claims of client assistance. subrecipient should be submitted to Anticipated processing time of this Such inaccurate or inflated claims may DOC in accordance with the award is 120 days. Executive Order be deemed illegal and punishable by instructions contained in the award 12372, ‘‘Intergovernmental Review of law. document. 16454 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Buy American-made Equipment or funding for the Israeli partner(s) to be to the USNPC at a later point, and to Products—Applicants are hereby provided by the Israeli Government. On negotiate any modifications to the notified that they are encouraged, to the December 21, 1994, the Technology agreement that may be necessary to extent feasible, to purchase American- Administration published a notice in satisfy the USNPC’s financial assistance made equipment and products with the Federal Register to announce this requirements. For additional funding provided under this program in Program (FR 65756), including the information, applicants may contact the accordance with Congressional intent as availability of funds for a first round of Information Contact Person listed above. set forth in the resolution contained in awards. Funding recipients for this first Funding is intended for projects (1) That Public Law 103–121, Sections 606 (a) round were announced on February 6, will have significant economic benefits and (b). 1995, referenced in more detail below. for both the United States and Israel and 11.800 Minority Business Development DATES: Applications must be received (2) that in general are in the areas of the Center on or before Close of Business May 19, environment, energy, health, (Catalog of Federal Domestic Assistance) 1995. It is expected that the review and biotechnology, information processing/ Dated: March 24, 1995. selection process will take telecommunications or agriculture, or in Donald L. Powers, approximately thirty (30) days. the commercialization of defense technologies. Federal Register Liaison Officer, Minority ADDRESSES: Applications must be Business Development Agency. submitted to: U.S.-Israel Science and This program announcement has been determined to be not significant for [FR Doc. 95–7774 Filed 3–29–95; 8:45 am] Technology Commission, Room 7068, U.S. Department of Commerce, purposes of Executive Order 12866. BILLING CODE 3510±21±P Washington, DC 20230. Authority FOR FURTHER INFORMATION CONTACT: Lee The Under Secretary for Technology, Bailey, Executive Director, U.S./Israel Technology Administration pursuant to the authority delegated to Science and Technology Commission, her by section 3706 of Title 15 of the [Docket No. 950313072±5072±01] telephone number (202) 482–6351. U.S. Code, as well as sections 2.02 and RIN No.: 0693±AB37 SUPPLEMENTARY INFORMATION: In March, 4.03(d) of Department Organization 1993, President Clinton and Israeli Financial Assistance for Research and Order 10–17, dated July 14, 1992, is Prime Minister Yitzhak Rabin implementing this activity. Development, U.S.-Israeli Science and announced their intention to create the Technology Program U.S.-Israeli Science and Technology Program Description AGENCY: Tecnology Administration, Commission (the ‘‘Commission’’) to The Program will assist eligible U.S.- Commerce. promote U.S.-Israeli cooperative science based industrial firms that have entered ACTION: Notice. and technology activities that could into U.S.-Israeli joint ventures benefit the two nations’ civilian high (partnerships of United States-based and SUMMARY: The Under Secretary for technology commercial sectors, and Israeli-based companies) to carry out Technology of the United States create jobs and economic growth. The research and development of long-term, Department of Commerce invites Commission was established by an medium- to high-risk technologies that proposals for financial assistance under agreement of January 18, 1994 between offer significant economic benefits, that the U.S.-Israeli Science and Technology the U.S. and Israeli governments, and are focused on commercialization and Program (the ‘‘Program’’). The Program plans to implement certain of its that are not appropriately funded by will assist U.S.-based industrial firms objectives through a U.S. non-profit other U.S. and Israeli government- that have entered into U.S.-Israeli joint corporation (hereinafter ‘‘USNPC’’). funded research and development ventures (partnerships of United States The Commerce Department expects efforts. This assistance will take place and Israeli companies) to carry our that the USNPC itself will award future through the use of cooperative research and development on long-term, financial assistance agreements under agreements. U.S. Commerce Department medium- to high-risk technologies. This the Program, and may also be in a assistance is offered to promote the Program is separate from the existing Bi- position to award the agreements economy of the U.S. via the creation of national Industrial R&D Foundation contemplated by this notice. Should this new technologies and the (BIRD), which continues to offer support occur, applicants that have submitted commercialization of new and existing for commercial joint ventures. Inquiries proposals that remain under review will technologies. about BIRD assistance should be be asked to transfer their proposals to addressed directly to the BIRD the USNPC, and will receive further Funding Availability Foundation, Tel Aviv, Israel. information about the requirements that The implementation and conduct of Such projects should focus on apply to the USNPC’s financial this Program is contingent upon the research, development and assistance agreements. Applicants availability of all funding anticipated for commercialization of technologies that should take note that the USNPC’s its operation. The Commerce are not appropriately funded by other requirements will differ in certain Department reserves the right to U.S. or Israeli government-funded respects from those announced in this discontinue this Program in the event research and development efforts. This notice, including modification with all funding is not made available or is assistance will take place through the respect to accounting, reporting, and otherwise not secured. It is anticipated use of cooperative agreements with intellectual property requirements, and that funds will be available subject to U.S.-based industrial firms pursuant to the adoption of award recovery policies reprogramming notifications to this Notice. that would apply in cases where the Congress. Funding will be made directly to the USNPC-sponsored projects result in The U.S. Government and the U.S. firms that are partners in the U.S.- commercially successful products. Government of Israel are each making Israeli joint ventures. Funding from the Applicants that enter into agreements available up to $5 million in the current U.S. Department of commerce for the with the Commerce Department may fiscal year for this Program for qualified Program is limited to the U.S. partner(s) also be asked to consent to the projects. The governments of both to a U.S.-Israeli joint venture, with Department assigning their agreements nations intend to fund this Program at Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16455 the same level during 1996 and 1997. • Must include technical innovation, be weighed equally. No project will be Two awards and one feasibility study significant commercial potential, and funded in the absence of a finding of totalling $5,721,000, to be paid over four economic benefit to both countries. technical and commercial merit by the fiscal years, were announced on reviewers. The evaluation criteria to be Award Period February 6, 1995. Within the limits of used in selecting any proposal for available funding, there is no The duration of Federal financial funding under this program, and their predetermined minimum or maximum assistance to a U.S.-based industrial respective weights, are: award. The funds may be spent toward firm will not exceed four years. (1) Scientific and Technical Merit of research and development activities Indirect Costs the Proposal (30 percent). consistent with the goals set forth in this (i) Quality and innovativeness of the Notice. Indirect costs will not be funded proposed technical program (i.e. under this Program. uniqueness with respect to current Matching Funding Requirements— Application Forms and Kit industry practice). Federal financial assistance must be (ii) Technical feasibility of the project accompanied by at least an equal Applicants must submit one (1) (i.e., are the technical objectives matching investment by the U.S.-based signed original plus two copies of each realistic?). firm(s) party to each U.S.-Israeli joint application. Standard Forms 424 and (iii) Coherency of technical plan and venture. In the event there are multiple 424A, Application for Federal clarity of vision of technical objectives. U.S.-based firms in a given U.S.-Israeli Assistance (which have been approved (iv) Breadth of impact of venture, the aggregate investment of the under the Paperwork Reduction Act by accomplishment of technical objectives. U.S. partners must at least equally OMB Control No. 0348–0043 and 0348– (2) Commercial Benefits of the match the Federal investment in that 0044, respectively) shall be used in Proposal (20 percent). project. applying for financial assistance, plus (i) Commercial potential of the such additional information as is technology in the proposed venture. Eligibility Requirements needed to permit the evaluation of the (ii) Potential to improve U.S. and The Program will accept proposals applications on the criteria set forth Israeli economic growth and the only from U.S.-Israeli joint ventures led below. Forms are available by request productivity of a broad spectrum of by one U.S.-based industrial partner and from the Information Contact Person industrial sectors or businesses within one Israeli-based industrial partner. In listed above. The additional information an economically important single sector. general, awards will not be made to a shall include a business plan containing (iii) Timeliness of proposal (i.e. the the following: project results will not occur too late to joint venture composed of affiliated • U.S.- and Israeli-based partners. Executive summary (maximum 3 be competitively useful in the Concerns are considered to be affiliates pages); marketplace). • (3) Commercialization Plans for the of each other when either directly or Description of the project and technology involved (See Evaluation Project (20 percent). indirectly (a) one concern controls or Criteria No. 1); (i) Evidence that the participants will has the power to control the other, or (b) • Commercialization objectives pursue commercial application of the a third party or parties controls or has including economic benefits to U.S. & technology including production and the power to control both, or (c) an Israel and other regions (See Evaluation distribution plans. identity of interest between or among Criteria No. 2); (ii) Project plan adequately addresses parties exists such that affiliation may • Commercialization plan including technology transfer and ownership be found. project objectives target markets and requirements to assure prompt and Federal financial assistance will be strategy, technology transfer and widespread use and protection of results given only to U.S.-based industrial intellectual property requirements and by participants and, as appropriate, partner or to a consortia led by U.S.- additional capital requirements (See others; based industrial partners. A U.S.-based Evaluation Criteria No. 3) (4) Qualifications of the Proposing industrial partner, or a consortia led by • Description of proposed project Organization(s) (15 percent). U.S.-based industrial partners, shall be participant qualifications and time (i) Quality and appropriateness of eligible to receive assistance under this schedule (See Evaluation Criteria No. 4); proposer’s commercial and managerial Program only if the U.S.-based • Project management, organizational staffing, facilities, equipment, and other industrial partner, or each member of structure, equipment, facilities and resources to accomplish the proposed the consortia, is incorporated in the support (See Evaluation Criteria No. 5); program objectives. United States and has its principal place and, (ii) Quality and appropriateness of the • of business in the United States. Proposed budget. technical staff to carry out the proposed Proposals shall not exceed 40 pages work program and to identify and Project Eligibility (50 pages for joint proposals) exclusive overcome technical barriers to meeting of the Standard Forms. Proposals must project objectives. Proposed projects must meet the be on 81⁄2 by 11’’ paper (copies double (iii) For proposals involving following criteria: sided) no fold out inserts and no smaller laboratory prototype development, • Must be in one of the following than 12 point type. Additional evidence of availability of adequate areas: The environment, energy, health, information beyond the page limit will design and manufacturing tools biotechnology, information processing/ not be considered. In addition, each appropriate to the prototype. telecommunications, the proposer is asked to submit a brief one (5) Proposer’s Level of Commitment commercialization of defense paragraph project summary containing and Organizational Structure (15 technologies, or agriculture. Further, the non-proprietary information which may percent). project must be for research and be utilized by the Commission without (i) Appropriateness of the structure of development activities in long term, regard to the Confidentiality Provisions the proposed organization in terms of medium- to high risk technologies, and applicable to this notice. composition of participants (i.e. vertical which show a plan to Evaluation Criteria—Factors within and/or horizontal integration) and commercialization within 48 months. each criteria (labelled i, ii, iii, etc.) will existing relationships among the parties. 16456 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices (ii) Level of commitment of proposers final. Applicants not chosen will be (4) No Obligation for Future as demonstrated by contribution of notified. Funding—If an application is selected personnel, equipment, facilities, and • In the event that a U.S.-Israeli joint for funding under the Program, there is matching funds. venture is ranked as a finalist, but is no obligation to provide any additional (iii) Appropriate participation by U.S. determined to contain weaknesses in its future funding in connection with that small businesses. structure or cohesiveness that may award. Renewal of an award to increase (iv) Evidence of a strong commitment substantially lessen the likelihood of the funding or extend the period of by applicants to complete and, if proposed project’s success, the performance is at the total discretion of appropriate, provide support for applicant may be informed of the the awarding entities. An annual review continuation of the program beyond the deficiencies and negotiations may be of each award will be conducted to period of funding. entered into with the applicant in an determine the worthiness of continued effort to remedy the deficiencies. If or additional future funding. Selection Procedures appropriate, funding up to 10% of the (5) Delinquent Federal Debts—No The selection process for awards is a amount originally requested by the award of Federal funds shall be made to multi-step process based on the criteria applicant, but no more than $100,000, an applicant who has an outstanding listed above. may be awarded by the Program to the delinquent Federal debt until either: • In the first step, called the applicant to conduct a feasibility study. i. The delinquent account is paid in ‘‘preliminary screening,’’ If the Program determines within six full, representatives from both governments months that the organizational ii. A negotiated repayment schedule is will review the applications and will deficiencies have been corrected, the established and at least one payment is eliminate those that do not meet the Program may award over the life of the received, or iii. Other arrangements satisfactory to threshold Eligibility Requirements listed project the remaining funds requested the Department of Commerce are made. above. Further disqualifications will be by that applicant to that applicant. • (6) Name Check Review. All made if the application is deemed to The Program reserves the right to applicants are subject to a name check have serious deficiencies in the negotiate with applicants selected to review process. Name checks are technical and/or business plan, if the receive awards over the cost and scope intended to reveal if any key individuals application does not fall within the of the proposed project, e.g., to add or associated with the applicant have been overall scope of the Program, or if the delete a task in order to improve the convicted of or are presently facing application is more appropriately probability of success. criminal charges such as fraud, theft, funded by other U.S. or Israeli Funding Logistics perjury, or other matters which government-funded research and significantly reflect on the applicant’s development efforts. Funding will be made directly to the • management honesty or financial In the second step, referred to as the U.S.-based firm(s) that is/are party to the integrity. ‘‘technical and business review,’’ U.S.-Israeli joint venture. (7) Primary Applicant Certifications. applications are evaluated under the Rights to Inventions All primary applicants must submit a preceding Evaluation Criteria. completed Form CD–511, Applications are rated as ‘‘not The provisions of the Bayh-Dole Act ‘‘Certifications Regarding Debarment, recommended’’ or ‘‘recommended.’’ (35 U.S.C. 201, et seq., concerning Suspension and Other Responsibility Applications must have high scientific patent rights in inventions made with Matters; Drug-Free Workplace and technical merit to be recommended. Federal assistance) and the Government Requirements and Lobbying,’’ and the Only those applications rated as Patent Policy set forth in President following explanations are hereby ‘‘recommended’’ are considered further. Reagan’s memorandum to the heads of provided: Such applications are referred to as Executive Departments and Agencies, i. Nonprocurement Debarment and ‘‘semifinalists.’’ If a majority of either dated February 18, 1983, shall apply to Suspension. Prospective participants (as country’s representatives rate an all Federally-funded research and defined at 15 CFR part 26, section 105) application as ‘‘not recommended,’’ that development activities performed under are subject to 15 CFR part 26 application will be disqualified. this Program. ‘‘Nonprocurement Debarment and • In the third step, referred to as Other Requirements Suspension’’ and the related section of ‘‘selection of finalists,’’ representatives the certification form prescribed above from both governments (‘‘the Joint (1) Federal Policies and Procedures— applies; Panel’’) will prepare a final scoring and Recipients and subrecipients are subject ii. Drug-Free Workplace. Funding ranking of recommended semifinalist to all Federal laws and Federal and recipients (as defined at 15 CFR part 26, applications, based upon evaluative Department of Commerce policies, section 605) are subject to 15 CFR part criteria. A list of ranked finalists is then regulations, and procedures applicable 26, subpart F, ‘‘Governmentwide submitted to each respective nation’s to Federal financial assistance awards. Requirements for Drug-Free Workplace Selection Official. (2) Past Performance—Unsatisfactory (Grants)’’ and the related section of the • In the final step, referred to as the performance under prior Federal awards certification form prescribed above ‘‘selection of awardees,’’ the Selection may result in an application not being applies; Officials select funding recipients from considered for funding. iii. Anti-Lobbying. Persons (as defined among the finalists, based upon the rank (3) Preaward Activities—If applicants at 15 CFR part 28, Section 105) are order of the applications on the basis of incur any costs prior to an award being subject to the lobbying provisions of 31 all Evaluation Criteria (see above), made they do so solely at their own risk U.S.C. 1352, ‘‘Limitation on use of assuring appropriate distribution of of not being reimbursed by the U.S. appropriated funds to influence certain funds among technologies, activities Government. Notwithstanding any Federal contracting and financial and recipients, the availability of funds, verbal or written assurance that may transactions,’’ and the lobbying section and upon a determination as to the have been received, there is no of the certification form prescribed responsibility of the applicant. The obligation on the part of the Department above applies to applications/bids for decision of the Selection Officials is of Commerce to cover preaward costs. grants, cooperative agreements, and Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16457 contracts for more than $100,000, and DEPARTMENT OF DEFENSE permit under Section 404 of the Clean loans and loan guarantees for more than Water Act of 1977, as amended, and $150,000, or the single family maximum Office of the Secretary of the Army Section 9 of the River and Harbor Act mortgage limit for affected programs, of 1899 for the construction of a dam Notice of Availability of the Draft whichever is greater; and and reservoir on Joe Ney Creek, and Environmental Impact Statement for raising of an existing dam on Upper iv. Anti-Lobbying Disclosures. Any Disposal and Reuse of Hamilton Army Pony Creek. Both projects would be applicant or component entity thereof Airfield, California located in Coos County, Oregon, The that has paid or will pay for lobbying Coos Bay-North Bend Water Board is the using any funds must submit an SF– AGENCY: Department of the Army, DoD. ACTION: Notice of availability. permit applicant, and is proposing this LLL, ‘‘Disclosure of Lobbying action for the purpose of increasing the Activities,’’ as required under 15 CFR SUMMARY: In compliance with the municipal and industrial water supply part 28, appendix B. National Environmental Policy Act and for its service area. (8) Lower Tier Certifications. the President’s Council on ADDRESSES: U.S. Army Corps of Recipients shall require applicants/ Environmental Quality, the Army has Engineers, Portland District, P.O. Box bidders for subgrants, contracts, prepared a Draft Environmental Impact 2496, Portland, Oregon 97208–2946. subcontracts, or other lower tier covered Statement (DEIS) for disposal of certain FOR FURTHER INFORMATION CONTACT: Mr. transactions at any tier under the award excess property at Hamilton Army David Kurkoski, (503) 326–6094. Airfield, California. The DEIS also to submit, if applicable, a completed Internet address: david± kurkoski Form CD–512, ‘‘Certifications Regarding analyzes impacts on a range of potential @smtplink.npp.usace. army.mil. reuse alternatives. Debarment, Suspension, Ineligibility SUPPLEMENTARY INFORMATION: The Coos Copies of the DEIS have been and Voluntary Exclusion-Lower Tier Bay-North Bend Water Board, Coos forwarded to various Federal, state, and Covered Transactions and Lobbying’’ County, Oregon has applied to the local agencies, and certain other and disclosure form, SF–LLL, Portland District, U.S. Army Corps of interested organizations and Engineers for a Department of the Army ‘‘Disclosure of Lobbying Activities.’’ individuals. Form CD–512 is intended for the use of Permit under section 404 of the Clean DATES: Written public comments and recipients and should not be transmitted Water Act of 1977, as amended, and suggestions received within 45 days of Section 9 of the River and Harbor Act to the Department of Commerce. SF– this Notice of Availability will be LLL submitted by any tier recipient or of 1899. The proposed action is to considered in preparing the Final construct a new dam and reservoir on subrecipient should be submitted to the Environmental Impact Statement and in Department of Commerce in accordance Joe Ney Creek, and raise an existing dam preparing a Record of Decision for the on Upper Pony Creek to increase the with the instructions contained in the Army action. award document. storage capacity of the reservoir. The ADDRESSES: Copies of the Draft purpose of the proposed action is to (9) False Statements. A false Environmental Impact Statement can be increase municipal and industrial water statement on an application is grounds obtained by writing or calling Mr. supply storage for the area serviced by for denial or termination of funds and Robert Koenigs, Sacramento District, the Water Board. grounds for possible punishment by a U.S. Army Corps of Engineers, 1325 J fine or imprisonment as provided in 18 Street, 13th Floor, Sacramento, CA Pony Creek U.S.C. 1001. 95814–2922 or by calling (916) 557– The existing Upper Pony Creek 6712. Mr. Koenigs may also be reached (10) Intergovernmental Review— Reservoir was created by a dam across by fax at (916) 557–7876. Questions Applications under this program are not Pony Creek near the headwaters at about the DEIS and written comments approximately River Mile (RM) 4.5). The subject to Executive Order 12372, may be sent to the same address ‘‘Intergovernmental Review of Federal dam was constructed in 1951 to provide Programs.’’ Dated 27, 1995. water storage for the Water Board’s Lewis D. Walker, service area. The proposed expansion (11) Purchase of American-Made Deputy Assistant Secretary of the Army would involve raising the existing 45- Equipment and Products—Applicants (Environment, Safety and Occupational foot earthfill dam by 21.5 feet, to are hereby notified that they will be Health) OASA (IL&E). increase reservoir storage capacity from encouraged, to the greatest extent [FR Doc. 95–7850 Filed 3–29–95; 8:45 am] the existing 2,150 acre-feet to 6,250 practicable, to purchase American-made BILLING CODE 3710±08±M acre-feet. equipment and products with funding provided under this Program in Joe Ney Creek accordance with Congressional intent as Department of the Army The existing reservoir on Joe Ney set forth in the resolution contained in Creek was created by a 9-foot=high Public Law 103–317, sections 607(a)– Corps of Engineers earthen dam constructed in 1947 at RM 1.5. The Water board proposes to build (b). Notice of Intent To Prepare a Draft a larger dam approximately 800 feet Environmental Impact Statement for Dated: March 27, 1995. upstream of the existing dam. the new the Proposed Coos Bay-North Bend Mary Lowe Good, dam, which would be built to an Water Supply Project, Coos County, Under Secretary of Commerce for Technology, evaluation of 39 feet, would provide Oregon Department of Commerce. storage for 2,500 acre-feet. [FR Doc. 95–7800 Filed 3–29–95; 8:45 am] AGENCY: U.S. Army Corps of Engineers, Operations BILLING CODE 3510±18±M Portland District, DOD. ACTION: Notice of intent. Both reservoirs would be operated by the Water board for municipal and SUMMARY: The proposed action is the industrial water supply. Water would be issuance of a Department of the Army pumped from Joe Ney Reservoir through 16458 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices a pipeline across the ridge to the Pony ADDRESSES: U.S. Army Corps of the restoration of same on another 200+ Creek basin, discharging into a natural Engineers, Los Angeles District, P.O. acres both on- and off-site. Open water, channel flowing into Upper Pony Creek Box 2711, Los Angeles, CA 90053–2325. forested, scrub/shrub, and emergent Reservoir. As needed, water stored in FOR FURTHER INFORMATION CONTACT: wetlands are planned. Upper Pony Creek Reservoir would be Mr. William R. Burton, 894–4352. The Corps of Engineers will initiate a released into lower Pony Creek where it Kenneth L. Denton, scoping process for the purpose of is withdrawn and treated at the water Army Federal Register Liaison Officer. determining the range of issues to be treatment plant. addressed in the Draft Environmental [FR Doc. 95–7750 Filed 3–29–95; 8:45 am] The alternatives to be considered in Impact Statement (DEIS). A public the DEIS area: BILLING CODE 3710±KF±M scoping meeting is scheduled for —the proposed project Wednesday, April 26, 1995, beginning —development of other water supplies Corps of Engineers at 7:00 p.m., in the Pruett-Patton to meet the project objectives Building which is located on Church —no action. Intent To Prepare a Draft Street next to and behind the Mitchell- Carnegie Public Library in Harrisburg, The scoping process will commence Environmental Impact Statement (DEIS) for the Proposed Surface Coal Illinois. in March 1995 with the issuance of a A brief presentation will precede the scoping letter. Federal, state and local Mining Operation in Saline County, Illinois request for public comment. Corps agencies, Indian tribes, and interested representatives will be available at this organizations and individuals will be AGENCY: U.S. Army Corps of Engineers, meeting to receive comments from the asked to comment on the significant Louisville District, DOD. public regarding issues which should be issues relating to the potential effects of ACTION: Notice of Intent. addressed in the preparation of the the alternatives. Potentially significant DEIS. It is important that Federal, state, issues to be addressed in the DEIS SUMMARY: The proposed project and local agencies and interested include: effects of the project on involves the surface mining of coal from individuals take this opportunity to wetlands, wildlife habitat and 1,537 acres of a 1,935 acre site located identify environmental concerns. In the populations, and fisheries. 1 to 3 miles west of Harrisburg in Saline interest of available time, each speaker A formal scoping meeting has not County, Illinois. The proposed surface will be asked to limit their oral been scheduled. The applicant has mine includes approximately 400 acres comments to ten minutes. scheduled a public meeting to be held of jurisdictional wetlands. The major Agencies and the public are also at 7:00 pm, on April 5, 1995, at the impacts would be the permanent invited and encouraged to provide North Bend Public Library, North Bend, relocation of Bankston Fork, written comments in addition to, or in Oregon. the purpose of the public construction of a haul road to the coal lieu of, oral comments at the public meeting is to provide more information extraction areas using a bridge over meeting. To be most helpful, scoping on the project and the scope of studies Bankston Fork, construction of 12,500 comments should clearly describe to be accomplished for this DEIS, to feet of levee along Bankston Fork to specific issues or topics which the assist interested parties in developing provide temporary flood protection for individual or agency believes the DEIS their scoping comments. the mining site, and surface mining coal should address. Written statements The DEIS is scheduled to be made from 1,537 acres. should be mailed to the above address available to the public in late 1995. ADDRESSES: U.S. Army Corps of not later than May 8, 1995. Kenneth L. Denton, Engineers, Louisville District, P.O. Box Kenneth L. Denton, Army Federal Register Liaison Officer. 59, Louisville, Kentucky 40201–0059. Army Federal Register Liaison Officer. [FR Doc. 95–7751 Filed 3–29–95; 8:45 am] FOR FURTHER INFORMATION CONTACT: [FR Doc. 95–7752 Filed 3–29–95; 8:45 am] BILLING CODE 3710±AR±M Mr. Michael Turner, (502) 582–6015. BILLING CODE 3710±JB±M SUPPLEMENTARY INFORMATION: The wetland areas to be impacted consist of Corps of Engineers approximately 200 acres of palustrine Department of the Navy Finding of No Significant Impact (FNSI) forested wetlands with the remainder being open water, scrub/shrub, and Office of the Deputy Assistant for a Draft Environmental Impact Secretary of the Navy (Conversion and Statement (DEIS) for the Lower Santa emergent wetlands. The relocation of Bankston Fork would be accomplished Redevelopment); Community Cruz River Flood Control Study, Pinal Redevelopment Authority and County, AZ by excavating 291,000 cubic yards of material. This material would be Available Surplus Buildings and Land at Military Installations Designated for AGENCY: Corps of Engineers, Los utilized in constructing a temporary Angeles District, DOD. flood control levee. The new stream Closure: Naval Training Center, Orlando, FLÐMain Station ACTION: Finding of no significant channel would be 7,450 feet long, 450 impact. feet longer than the existing stream AGENCY: Department of the Navy, DOD. channel. After relocating the stream and ACTION: Notice. SUMMARY: The Federal Register, Volume construction of a bridge, mining would 55, No. 105, dated May 31, 1990, consist of removing the overburden in SUMMARY: This Notice provides contained a Notice of Intent to Prepare 150 to 200 foot wide open pits of information regarding the a Draft Environmental Impact Statement varying lengths using a large dragline. redevelopment authority that has been for the Lower Santa Cruz River Flood Mining would progress through the area established to plan the reuse of the Control Study, Pinal County, AZ. No protected by the levee over a period of Naval Training Center, Main Station, implementable flood control plan was 7 years commencing in 1996. Orlando, FL, the surplus property that is developed, and the study has been Proposed mitigation for the loss of located at that base closure site, and the terminated. No Draft Environmental wetlands will consist of the creation of timely election by the redevelopment Impact Statement was prepared. nearly 700 acres of wetlands on-site and authority to proceed under new Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16459 procedures set forth in the Base Closure Closure and Realignment Act of 1990, as Expressions of Interest Community Redevelopment and amended by the Base Closure Homeless Assistance Act of 1994. Community Redevelopment and Pursuant to paragraph 7(C) of Section 2905(b) of the Defense Base Closure and FOR FURTHER INFORMATION CONTACT: Homeless Assistance Act of 1994, the John Realignment Act of 1990, as amended J. Kane, Deputy Division Director, following information regarding the surplus property at the Naval Training by the Base Closure Community Department of the Navy, Real Estate Redevelopment and Homeless Operations, Naval Facilities Engineering Center, Main Station, Orlando, FL, is published in the Federal Register: Assistance Act of 1994, State and local Command, 200 Stovall Street, governments, representatives of the Alexandria, VA 22332–2300, telephone Redevelopment Authority homeless, and other interested parties (703) 325–0474; or E.R. Nelson, Real located in the vicinity of the Naval Estate Division, Southern Division, The redevelopment authority for the Naval Training Center, Orlando, FL, Training Center, Main Station, Orlando, Naval Facilities Engineering Command, FL, shall submit to said Commission a 2155 Eagle Drive, North Charleston, SC purposes of implementing the provisions of the Defense Base Closure notice of interest, of such governments, 29419–9010, telephone (803) 743–0494. representatives, and parties in the above For detailed information regarding and Realignment Act of 1990, as amended, is the Orlando Naval Training described surplus property, or any particular properties identified in this portion thereof. A notice of interest Notice (i.e. acreage, floor plans, sanitary Center Reuse Commission. A cross section of community interests is shall describe the need of the facilities, exact street address, etc.), government, representative, or party contact Captain Harry Smith, Base represented on the Commission. Day to day operations of the Commission are concerned for the desired surplus Transition Office, Naval Training property. Pursuant to paragraphs 7 (C) Center, Orlando, FL 32813–5005, handled by Mr. Herb Smetheram, Executive Director. The address of the and (D) of Section 2905(b), the telephone (407) 646–5301. Commission shall assist interested SUPPLEMENTARY INFORMATION: In 1993, Commission is 400 South Orange Avenue, Orlando, FL 32801–3302, parties in evaluating the surplus the Naval Training Center, Orlando, FL, property for the intended use and was designated for closure pursuant to telephone (407) 246–3093 and facsimile (407) 246–3164. publish in a newspaper of general the Defense Base Closure and circulation in Orlando the date by Realignment Act of 1990, Public Law Surplus Property Descriptions which expressions of interest must be 101–510, as amended. Pursuant to this submitted. Under Section 2(e)(6) of the The following is a listing of the land designation, the majority of the land and Base Closure Community and facilities at the Naval Training facilities at this installation were on Redevelopment and Homeless Center, Main Station, Orlando, FL, that April 29, 1994, declared surplus to the Assistance Act of 1994, the deadline for were declared surplus to the federal federal government and available for use submissions of expressions of interest government on April 29, 1994. by (a) non-federal public agencies may not be less than one (1) month nor pursuant to various statutes which Land more than six (6) months from the date authorize conveyance of property for the Commission elected to proceed Approximately 1,184 acres of public projects, and (b) homeless under the new statute, i.e., December improved and unimproved fee simple provider groups pursuant to the Stewart 13, 1994. B. McKinney Homeless Assistance Act land at the Naval Training Center, Main (42 U.S.C. 11411), as amended. Station, Orlando, FL. Dated: February 17, 1995. M.D. Schetzsle, Buildings Election To Proceed Under New LT, JAGC, USNR, Alternate Federal Register Statutory Procedures The following is a summary of the Liaison Officer. Subsequently, the Base Closure facilities located on the above described [FR Doc. 95–7821 Filed 3–29–95; 8:45 am] Community Redevelopment and land which will also be available when BILLING CODE 3810±FF±P Homeless Assistance Act of 1994 (Pub. the center closes in October, 1998, L. 103–421) was signed into law. unless otherwise indicated. Property Section 2 of this statute gives the numbers are available on request. Office of the Deputy Assistant redevelopment authority at base closure —Barracks (72 structures). Comments: Secretary of the Navy (Conversion and sites the option of proceeding under Approx. 2,703,400 square feet. Redevelopment); Community Redevelopment Authority and new procedures with regard to the —Housing/Housing Support (5 manner in which the redevelopment Available Surplus Buildings and Land structures). Comments: Approx. at Military Installations Designated for plan for the base is formulated and how 11,290 square feet. requests are made for future use of the Closure: Naval Training Center, —Personnel/Community Support (75 property by homeless assistance Orlando, FLÐHerndon Annex structures). Comments: Approx. providers and non-federal public 581,000 square feet. agencies. On December 13, 1994, the AGENCY: Department of the Navy, DOD. —Administration (22 structures). Naval Training Center Reuse ACTION: Notice. Commission submitted a timely request Comments: Approx. 227,700 square to proceed under the new procedures. feet. SUMMARY: This Notice provides Accordingly, this notice of information —Operational Training/Fuel (20 information regarding the regarding the redevelopment authority structures). Comments: Approx. redevelopment authority that has been fulfills the Federal Register publication 1,113,000 square feet. established to plan the reuse of the requirement of Section 2(e)(3) of the —Maintenance (10 structures). Naval Training Center, Herndon Annex, Base Closure Community Comments: Approx. 66,000 square Orlando, FL, the surplus property that is Redevelopment and Homeless feet. located at that base closure site, and the Assistance Act of 1994. —Storage/Medical (6 structures). timely election by the redevelopment Also, pursuant to paragraph (7)(B) of Comments: Approx. 114,000 square authority to proceed under new Section 2905(b) of the Defense Base feet. procedures set forth in the Base Closure 16460 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Community Redevelopment and amended by the Base Closure property. Pursuant to paragraphs 7 (C) Homeless Assistance Act of 1994. Community Redevelopment and and (D) of Section 2905(b), the FOR FURTHER INFORMATION CONTACT: John Homeless Assistance Act of 1994, the Commission shall assist interested J. Kane, Deputy Division Director, following information regarding the parties in evaluating the surplus Department of the Navy, Real Estate surplus property at the Naval Training property for the intended use and Operations, Naval Facilities Engineering Center, Herndon Annex, Orlando, FL, is publish in a newspaper of general Command, 200 Stovall Street, published in the Federal Register: circulation in Orlando the date by which expressions of interest must be Alexandria, VA 22332–2300, telephone Redevelopment Authority (703) 325–0474; or E.R. Nelson Real submitted. Under Section 2(e)(6) of the Estate Division, Southern, Division, The redevelopment authority for the Base Closure Community Naval Facilities Engineering Command, Naval Training Center, Orlando, FL, Redevelopment and Homeless 2155 Eagle Drive, North Charleston, SC purposes of implementing the Assistance Act of 1994, the deadline for 29419–9010, telephone (803) 743–0494. provisions of the Defense Base Closure submissions of expressions of interest For detailed information regarding and Realignment Act of 1990, as may not be less than one (1) month nor particular properties identified in this amended, is the Orlando Naval Training more than six (6) months from the date Notice (i.e. acreage, floor plans, sanitary Center Reuse Commission. A cross the Commission elected to proceed facilities, exact street address, etc.), section of community interests is under the new statute, i.e., December contact Captain Harry Smith, Base represented on the committee. Day to 13, 1994. Transition Office, Naval Training day operations of the Commission are Dated: February 17, 1995. Center, Orlando, FL 32813–5005, handled by Mr. Herb Smetheram, M.D. Schetzsle, Executive Director. The address of the telephone (407) 646–5301. LT, JAGC, USNR, Alternate Federal Register Commission is 400 South Orange SUPPLEMENTARY INFORMATION: In 1993, Liaison Officer. Avenue, Orlando, FL 32801–3302, the Naval Training Center, Orlando, FL, [FR Doc. 95–7822 Filed 3–29–95; 8:45 am] telephone (407) 246–3093 and facsimile was designated for closure pursuant to BILLING CODE 3810±FF±P (407) 246–3164. the Defense Base Closure and Realignment Act of 1990, Public Law Surplus Property Descriptions Office of the Deputy Assistant 101–510, as amended. Pursuant to this The following is a listing of the land Secretary of the Navy (Conversion and designation, the majority of the land and and facilities at the Naval Training Redevelopment); Community facilities at this installation were on Center, Herndon Annex, Orlando, FL, April 29, 1994, declared surplus to the Redevelopment Authority and that were declared surplus to the federal Available Surplus Buildings and Land federal government and available for use government on April 29, 1994. by (a) non-federal public agencies at Military Installations Designated for pursuant to various statutes which Land Closure: Naval Training Center, authorize conveyance of property for Approximately 54 acres of improved Orlando, FLÐMcCoy Annex public projects, and (b) homeless and unimproved fee simple land at the AGENCY: Department of the Navy, DOD. provider groups pursuant to the Stewart Naval Training Center, Herndon Annex, ACTION: Notice. B. McKinney Homeless Assistance Act Orlando, FL. (42 U.S.C. 11411), as amended. SUMMARY: This Notice provides Buildings information regarding the Election to Proceed Under New The following is a summary of the redevelopment authority that has been Statutory Procedures facilities located on the above described established to plan the reuse of the Subsequently, the Base Closure land which will also be available when Naval Training Center, McCoy Annex, Community Redevelopment and the center closes in October, 1998, Orlando, FL, the surplus property that is Homeless Assistance Act of 1994 (Pub. unless otherwise indicated. Property located at that base closure site, and the L. 103–421) was signed into law. numbers are available on request. timely election by the redevelopment Section 2 of this statute gives the —Warehouse/Administration (8 authority to proceed under new redevelopment authority at base closure structures). Comments: Approx. procedures set forth in the Base Closure sites the option of proceeding under 134,900 square feet. Community Redevelopment and new procedures with regard to the Homeless Assistance Act of 1994. Expressions of Interest manner in which the redevelopment FOR FURTHER INFORMATION CONTACT: John plan for the base is formulated and how Pursuant to paragraph 7(C) of Section J. Kane, Deputy Division Director, requests are made for future use of the 2905(b) of the Defense Base Closure and Department of the Navy, Real Estate property by homeless assistance Realignment Act of 1990, as amended Operations, Naval Facilities Engineering providers and non-federal public by the Base Closure Community Command, 200 Stovall Street, agencies. On December 13, 1994, the Redevelopment and Homeless Alexandria, VA 22332–2300, telephone Naval Training Center Reuse Assistance Act of 1994, State and local (703) 325–0474; or E.R. Nelson, Real Commission submitted a timely request governments, representatives of the Estate Division, Southern Division, to proceed under the new procedures. homeless, and other interested parties Naval Facilities Engineering Command, Accordingly, this notice of information located in the vicinity of the Naval 2155 Eagle Drive, North Charleston, SC regarding the redevelopment authority Training Center, Herndon Annex, 29419–9010, telephone (803) 743–0494. fulfills the Federal Register publication Orlando, FL, shall submit to said For detailed information regarding requirement of Section 2(e)(3) of the Commission a notice of interest, of such particular properties identified in this Base Closure Community governments, representatives, and Notice (i.e. acreage, floor plans, sanitary Redevelopment and Homeless parties in the above described surplus facilities, exact street address, etc.), Assistance Act of 1994. property, or any portion thereof. A contact Captain Harry Smith, Base Also, pursuant to paragraph (7)(B) of notice of interest shall describe the need Transition Office, Naval Training Section 2905(b) of the Defense Base of the government, representative, or Center, Orlando, FL 32813–5005, Closure and Realignment Act of 1990, as party concerned for the desired surplus telephone (407) 646–5301. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16461 SUPPLEMENTARY INFORMATION: In 1993, Avenue, Orlando, FL 32801–3302, which expressions of interest must be the Naval Training Center, Orlando, FL, telephone (407)-246–3093 and facsimile submitted. Under Section 2(e)(6) of the was designated for closure pursuant to (407) 246–3164. Base Closure Community the Defense Base Closure and Redevelopment and Homeless Surplus Property Descriptions Realignment Act of 1990, Public Law Assistance Act of 1994, the deadline for 101–510, as amended. Pursuant to this The following is a listing of the land submissions of expressions of interest designation, the majority of the land and and facilities at the Naval Training may not be less than one (1) month nor facilities at this installation were on Center, McCoy Annex, Orlando, FL, that more than six (6) months from the date April 29, 1994, declared surplus to the were declared surplus to the federal the Commission elected to proceed federal government and available for use government on April 29, 1994. under the new statute, i.e., December by (a) non-federal public agencies Land 13, 1994. pursuant to various statutes which Dated: February 17, 1995. authorize conveyance of property for Approximately 838 acres of improved public projects, and (b) homeless and unimproved fee simple land at the M.D. Schetzsle, provider groups pursuant to the Stewart Naval Training Center, McCoy Annex, LT, JAGC, USNR, Alternate Federal Register B. McKinney Homeless Assistance Act Orlando, FL. Liaison Officer. [FR Doc. 95–7823 Filed 3–29–95; 8:45 am] (42 U.S.C. 11411), as amended. Buildings BILLING CODE 3810±FF±P Election to Proceed Under New The following is a summary of the Statutory Procedures facilities located on the above described Subsequently, the Base Closure land which will also be available when Office of the Deputy Assistant Community Redevelopment and the center closes in October, 1998, Secretary of the Navy (Conversion and Homeless Assistance Act of 1994 (Pub. unless otherwise indicated. Property Redevelopment); Community L. 103–421) was signed into law. numbers are available on request. Redevelopment Authority and Section 2 of this statute gives the —Barracks/Support (6 structures). Available Surplus Buildings and Land redevelopment authority at base closure Comments: Approx. 62,600 square at Military Installations Designated for sites the option of proceeding under feet. Closure: Naval Training Center, new procedures with regard to the —Family Housing/Multiplex (53 Orlando, FLÐArea C manner in which the redevelopment structures). Comments: Approx. AGENCY: Department of the Navy, DOD. plan for the base is formulated and how 452,800 square feet. requests are made for future use of the —Medical/Community Support (34 ACTION: Notice. property by homeless assistance structures). Comments: Approx. SUMMARY: This Notice provides providers and non-federal public 358,350 square feet. information regarding the agencies. On December 13, 1994, the —Operational/Administration (10 redevelopment authority that has been Naval Training Center Reuse structures). Comments: Approx. established to plan the reuse of the Commission submitted a timely request 65,200 square feet. Naval Training Center, Area C, Orlando, to proceed under the new procedures. —Maintenance/Motor Pool (11 FL, the surplus property that is located Accordingly, this notice of information structures). Comments: Approx. at that base closure site, and the timely regarding the redevelopment authority 36,000 square feet. election by the redevelopment authority —Capehart Duplex Housing (359 fulfills the Federal Register publication to proceed under new procedures set structures). Comments: 2,500 square requirement of Section 2(e)(3) of the forth in the Base Closure Community feet per unit on average. Base Closure Community Redevelopment and Homeless Redevelopment and Homeless Expressions of Interest Assistance Act of 1994. Assistance Act of 1994. Also, pursuant to paragraph (7)(B) of Pursuant to paragraph 7(C) of Section FOR FURTHER INFORMATION CONTACT: John Section 2905(b) of the Defense Base 2905(b) of the Defense Base Closure and J. Kane, Deputy Division Director, Closure and Realignment Act of 1990, as Realignment Act of 1990, as amended Department of the Navy, Real Estate amended by the Base Closure by the Base Closure Community Operations, Naval Facilities Engineering Community Redevelopment and Redevelopment and Homeless Command, 200 Stovall Street, Homeless Assistance Act of 1994, the Assistance Act of 1994, State and local Alexandria, VA 22332–2300, telephone following information regarding the governments, representatives of the (703) 325–0474; or E. R. Nelson, Real surplus property at the Naval Training homeless, and other interested parties Estate Division, Southern Division, Center, McCoy Annex, Orlando, FL, is located in the vicinity of the Naval Naval Facilities Engineering Command, published in the Federal Register: Training Center, McCoy Annex, 2155 Eagle Drive, North Charleston, SC Orlando, FL, shall submit to said 29419–9010, telephone (803) 743–0494. Redevelopment Authority Commission a notice of interest, of such For detailed information regarding The redevelopment authority for the governments, representatives, and particular properties identified in this Naval Training Center, Orlando, FL, parties in the above described surplus Notice (i.e. acreage, floor plans, sanitary purposes of implementing the property, or any portion thereof. A facilities, exact street address, etc.), provisions of the Defense Base Closure notice of interest shall describe the need contact Captain Harry Smith, Base and Realignment Act of 1990, as of the government, representative, or Transition Office, Naval Training amended, is the Orlando Naval Training party concerned for the desired surplus Center, Orlando, FL 32813–5005, Center Reuse Commission. A cross property. Pursuant to paragraphs 7(C) telephone (407) 646–5301. section of community interests is and (D) of Section 2905(b), the SUPPLEMENTARY INFORMATION: In 1993, represented on the committee. Day to Commission shall assist interested the Naval Training Center, Orlando, FL, day operations of the Commission are parties in evaluating the surplus was designated for closure pursuant to handled by Mr. Herb Smetheram, property for the intended use and the Defense Base Closure and Executive Director. The address of the publish in a newspaper of general Realignment Act of 1990, Public Law Commission is 400 South Orange circulation in Orlando the date by 101–510, as amended. Pursuant to this 16462 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices designation, the majority of the land and Surplus Property Descriptions Dated: February 21, 1995. facilities at this installation were on M.D. Schetzsle, April 29, 1994, declared surplus to the The following is a listing of the land LT, JAGC, USNR, Alternate Federal Register federal government and available for use and facilities at the Naval Training Liaison Officer. by (a) non-federal public agencies Center, Area C, Orlando, FL, that were [FR Doc. 95–7824 Filed 3–29–95; 8:45 am] pursuant to various statutes which declared surplus to the federal BILLING CODE 3810±FF±P authorize conveyance of property for government on April 29, 1994. public projects, and (b) homeless Land provider groups pursuant to the Stewart DEPARTMENT OF EDUCATION B. McKinney Homeless Assistance Act Approximately 45 acres of improved (42 U.S.C. 11411), as amended. and unimproved fee simple land at the Office of Elementary and Secondary Naval Training Center, Area C, Orlando, Education Election to Proceed Under New FL. Statutory Procedures Education of Migratory Children Buildings Subsequently, the Base Closure AGENCY: Department of Education. Community Redevelopment and The following is a summary of the ACTION: Notice of final criteria for FY Homeless Assistance Act of 1994 facilities located on the above described 1995 consortium incentive grants under (Public Law 103–421) was signed into land which will also be available when part C of title I of the Elementary and law. Section 2 of this statute gives the the center closes in October, 1998, Secondary Education Act of 1965. redevelopment authority at base closure unless otherwise indicated. Property SUMMARY: The Assistant Secretary for sites the option of proceeding under numbers are available on request. Elementary and Secondary Education new procedures with regard to the —Administration/Support (3 (Assistant Secretary) establishes final manner in which the redevelopment structures). Comments: Approx. criteria for awarding fiscal year (FY) plan for the base is formulated and how 58,000 square feet. 1995 Migrant Education Program (MEP) requests are made for future use of the consortium incentive grants under property by homeless assistance —Warehouse/Storage (18 structures). section 1308(d) of Title I of the providers and non-federal public Comments: Approx. 138,000 square Elementary and Secondary Education agencies. On December 13, 1994, the feet. Act of 1965 (ESEA), as amended by the Naval Training Center Reuse Improving America’s Schools Act Expressions of Interest Commission submitted a timely request (IASA), to State educational agencies to proceed under the new procedures. Pursuant to paragraph 7(C) of Section (SEAs) with approved consortium Accordingly, this notice of information 2905(b) of the Defense Base Closure and arrangements. regarding the redevelopment authority Realignment Act of 1990, as amended EFFECTIVE DATE: This notice takes effect fulfills the Federal Register publication by the Base Closure Community on May 1, 1995. requirement of Section 2(e)(3) of the Redevelopment and Homeless FOR FURTHER INFORMATION CONTACT: Base Closure Community Assistance Act of 1994, State and local James English, Office of Migrant Redevelopment and Homeless governments, representatives of the Education, U.S. Department of Assistance Act of 1994. homeless, and other interested parties Education, 600 Independence Avenue Also, pursuant to paragraph (7)(B) of located in the vicinity of the Naval SW., Portals Building, Room 4100, Section 2905(b) of the Defense Base Training Center, Area C, Orlando, FL, Washington, DC 20202–6135. Closure and Realignment Act of 1990, as shall submit to said Commission a Telephone: (202) 260–1394. Individuals amended by the Base Closure notice of interest, of such governments, who use a telecommunications device for the deaf (TDD) may call the Federal Community Redevelopment and representatives, and parties in the above Information Relay Service (FIRS) at 1– Homeless Assistance Act of 1994, the described surplus property, or any 800–877–8339 between 8 a.m. and 8 following information regarding the portion thereof. A notice of interest p.m., Eastern time, Monday through surplus property at the Naval Training shall describe the need of the Friday. Center, Area C, Orlando, FL, is government, representative, or party published in the Federal Register concerned for the desired surplus SUPPLEMENTARY INFORMATION: property. Pursuant to paragraphs 7(C) Redevelopment Authority Background and (D) of Section 2905(b), the The MEP, authorized in Title I, Part Commission shall assist interested The redevelopment authority for the C of the ESEA, is a State-operated, Naval Training Center, Orlando, FL, parties in evaluating the surplus formula grant program under which purposes of implementing the property for the intended use and SEAs receive funds to improve the provisions of the Defense Base Closure publish in a newspaper of general academic achievement and welfare of and Realignment Act of 1990, as circulation in Orlando the date by migratory children who reside in their amended, is the Orlando Naval Training which expressions of interest must be States. Consistent with the emphasis Center Reuse Commission. A cross submitted. Under Section 2(e)(6) of the that the reauthorized ESEA places upon section of community interests is Base Closure Community removing barriers to coordination and represented on the committee. Day to Redevelopment and Homeless integration of programs that serve day operations of the Commission are Assistance Act of 1994, the deadline for migratory children, sections 1303(d) and handled by Mr. Herb Smetheram, submissions of expressions of interest 1308(d) of the ESEA encourage SEAs to Executive Director. The address of the may not be less than one (1) month nor consider whether consortium Commission is 400 South Orange more than six (6) months from the date arrangements with other States or Avenue, Orlando, FL 32801–3302, the Commission elected to proceed appropriate entities would result in a telephone (407) 246–3093 and facsimile under the new statute, i.e., December more effective and efficient delivery of (407) 246–3164. 13, 1994. MEP services. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16463 In this regard, section 1303(d) directs children under the MEP formula-grant support staff who provide instructional the Secretary to consult with SEAs program, it is desirable to waive public or support services directly to migratory whose MEP allocations in any year will comment for the first year of children. For purposes of section be $1 million or less about the implementation of this new 1303(d), the term ‘‘other appropriate desirability of forming consortia. This discretionary grant. This waiver will entity’’ can mean any public or private section also directs the Secretary to apply only to the criteria and process agency or organization. approve any SEA’s consortium proposal included in this notice for awarding FY A single SEA may be part of more that (1) reduces MEP administrative 1995 consortium incentive grants. Any than one consortium arrangement. costs or program function costs, and (2) criteria and procedures that the However, consistent with section increases the amount of MEP funds Department establishes for the award of 1303(d) of the ESEA, each consortium available for direct services to migratory consortium incentive grants in future arrangement that the Secretary approves children that add substantially to the years will be based on experiences with must separately decrease the total educational attainment or welfare of this FY 1995 award process, and will be amount of MEP administrative or those children. While an SEA may form published in proposed form in the program function costs across the a consortium arrangement with any Federal Register with an opportunity participating SEAs and, conversely, appropriate entity, in light of the strong for interested parties to comment. increase the total amount of MEP funds interstate emphases in the MEP the that are made available for direct Eligibility for Consortium Incentive Secretary anticipates that SEAs will services to migratory children across the Grants consider the benefits of forming participating SEAs. SEAs will submit consortium arrangements on a multi- The criteria and procedures the information that the Department State basis. The Secretary also announced in this notice govern only needs to review and approve the SEA’s anticipates that SEAs will want to plan the award of consortium incentive consortium arrangement, and determine their consortium activities to be grants for FY 1995. These criteria and the size of the SEA’s consortium implemented on a multiyear basis. The procedures reflect consideration of incentive grant, through the FY 1995 Department already has begun comments on a preliminary proposal MEP application or in conjunction with discussions with SEA officials about the discussed with State MEP Directors in a the optional consolidated State plan circumstances in which consortium meeting in McAllen, Texas on January under section 14302 of the ESEA. 26–27, 1995. The Secretary will reserve arrangements might enhance their Amount of an SEA’s Incentive Grants programs for migratory children. $1.5 million to implement this To encourage SEAs to form consortium incentive grant program in Each SEA with one or more consortium arrangements that meet the FY 1995. Only SEAs with approved consortium arrangements that the requirements of section 1303(d), section consortium arrangements will be Secretary determines meet the criteria in 1308(d) of the ESEA directs the eligible for incentive grants. Consistent section 1303(d) of the ESEA, and whose Secretary to reserve up to $1.5 million with section 1303(d), a consortium consortium arrangements increase the of the funds appropriated for the MEP arrangement will be approved if it (1) amount of MEP funds available for for competitive incentive awards to reduces the overall amount of MEP direct services to migratory children in SEAs with consortium arrangements administrative or program function its State, will receive one incentive approved by the Secretary. Section costs across the participating SEAs from award. In determining the size of an 1308(d) also limits the size of each grant the amount that would be incurred in SEA’s award, the Secretary will rank to no more than $250,000, and provides the absence of the consortium, and (2) SEAs seeking incentive grants on the that not fewer than 10 grants shall be makes more funds available, overall basis of the total percentage increase in made to eligible SEAs with approved across the participating SEAs, for direct MEP funds that the SEA will make consortium arrangements whose MEP educational or support services to available for direct services to migratory formula grant allocations are less than migratory children so as to add children in its State as a result of the $1 million. While the provision offers substantially to their welfare or SEA’s participation in the consortium all SEAs an incentive to participate in educational attainment than would have arrangements, as compared to the level consortium arrangements, it was been available in the absence of the of direct services that would be made enacted particularly to benefit those consortium. available to migratory children in the SEAs that, because of the small size of For purposes of section 1303(d), State in the absence of the consortia. their MEP allocations, may have ‘‘administrative or program function Example I: SEA A has one consortium particular difficulty in both costs’’ include all costs that an SEA or arrangement that increases the amount administering the MEP and providing its local operating agencies pay from of funds available for direct services in an adequate level of direct services to MEP funds to support MEP activities State A by 10 percent, while SEA B has migratory children. other than direct educational or support two consortium arrangements that services for migratory children. increase the total amount of funds Waiver of Proposed Rulemaking Administrative and program function available for direct services in State B by In accordance with the costs would include the costs of general 8 percent. State A would be ranked Administrative Procedure Act (5 U.S.C. program administration paid from funds higher than State B even if SEA B’s 553), it is the practice of the Department reserved under section 1603(c) of ESEA, consortium arrangements permit more of Education to offer interested parties as well as the costs of other, program- total funds to be used for direct services. the opportunity to comment on specific administrative activities, such Example II: SEA C and SEA D proposed rulemaking documents. as identification and recruitment, participate together in one consortium However, in accordance with section interstate, intrastate, and interagency and this consortium is the only one in 437(d)(1) of the General Education coordination, and parent advisory which each SEA participates. If the Provisions Act, the Assistant Secretary councils. The term ‘‘direct educational amount available for direct services has determined that, in order that SEAs or support services’’ means any increases in total across the two States may use the incentive grant funds as instructional or support activities due to participation in the consortium, quickly as possible to promote their provided directly to migratory children, but the amount available for direct programs of direct services for migratory as well as training of instructional or services in State C does not increase, the 16464 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices consortium arrangement will be Administrative Regulations (EDGAR) do Strategies—Assistant Secretary for approved, but only State D, and not not apply. Instead, the incentive grant Environmental Management State C, will receive an incentive grant. program is being administered, like the 6:30 p.m. Meeting Adjourns From the information that an SEA MEP itself, under the provisions of 34 Tuesday, April 18, 1995 submits, the Department will calculate, CFR Parts 76, 77, 80, 81, 85, and 86 of 8:30 a.m. Co-chairs Resume the Meeting for each State, the total percentage EDGAR. Overview of Major Budget Issues increase in MEP funds available for (Program Authority: 20 U.S.C. 6393(d), Confronting the Environmental direct services as a result of all the 6398(d)) Management Program Offices—Program approved consortium arrangements in Deputy Assistant Secretaries (Catalog of Federal Domestic Assistance 10:30 a.m. Breakout Sessions on Major which an applicant SEA participates. Number 84.011, Migratory Education Basic Budget Issues Confronting Field Offices The Department will then rank these State Formula Grant Program) and Headquarters percentages in descending order and Dated: March 10, 1995. divide the distribution into thirds (that 12:00 p.m. Lunch Thomas W. Payzant, 1:00 p.m. Board Business is, by terciles). Each SEA ranked in the 1:15 p.m. Reports from Breakout Sessions highest third of the distribution will Assistant Secretary for Elementary and Secondary Education. 2:30 p.m. Board Committee Reports receive an incentive grant that is three- 4:30 p.m. BEMR/PEIS/FFCA Integrated [FR Doc. 95–7826 Filed 3–29–95; 8:45 am] times the size of the grant received by Message Presentation each SEA ranked in the lowest third, BILLING CODE 4000±01±P 5:00 p.m. Public Comment Session while each SEA ranked in the middle 5:30 p.m. Meeting Adjourns third will receive an incentive grant that A final agenda will be available at the is twice the size of that provided to each meeting. SEA ranked in the lowest third. Within DEPARTMENT OF ENERGY Public Participation: The meeting is open to the public. Written statements may be filed each third, grant awards will be of equal Environmental Management Advisory size, except that adjustments will be with the Board either before or after the Board meeting. Members of the public who wish to made so that no consortium incentive make oral statements pertaining to agenda grant will be greater than $250,000 or AGENCY: Department of Energy. items should contact James T. Melillo at the 100 percent of the amount of funds address or telephone number listed above. ACTION: Notice of open meeting. awarded to the SEA under its formula Individuals wishing to orally address the grant allocation, whichever is less. Board during the public comment session SUMMARY: An SEA may use incentive grant Pursuant to the provisions of should call (800) 862–8860 and leave a funds awarded under section 1308(d) of the Federal Advisory Committee Act message. Individuals may also register on the ESEA only to provide direct services (Pub. L. 92–463, 86 Stat. 770), notice is April 17, 1995 at the meeting site. Every to migratory children. These funds are hereby given of the following Advisory effort will be made to hear all those wishing in addition to, and not in place of, the Committee meeting: to speak to the Board, on a first come, first serve basis. Those who call in and reserve Name: Environmental Management funds awarded under the MEP formula time will be given the opportunity to speak Advisory Board. grant. first. The Board Co-chairs are empowered to Date and Times: Monday, April 17, 1995 The Secretary implements section conduct the meeting in a fashion that will from 4:30 a.m. to 6:30 p.m.; Tuesday, April 1308(d) in this way in order to (1) facilitate the orderly conduct of business. 18, 1995 from 8:30 a.m. to 5:30 p.m. reward all SEAs whose participation in Transcripts and Minutes: A meeting Place: Willard Inter-Continental transcript and minutes will be available for consortium arrangements increases Washington, 1401 Pennsylvania Avenue, public review and copying at the Freedom of direct services to migratory children in N.W., Washington, D.C. 20004, (202) 628– Information Public Reading Room, 1E–190, their State, (2) provide larger awards to 9100. Forrestal Building, 1000 Independence those SEAs whose consortium For Further Information Contact: James T. Avenue, S.W., Washington, DC 20585 arrangements most enhance their Melillo, Executive Secretary, Environmental between 9:00 a.m. and 4:00 p.m., Monday Management Advisory Board, EM–5, 1000 capacity to deliver direct services, and through Friday, except Federal holidays. (3) ensure that FY 1995 funds under this Independence Avenue, S.W., Washington, DC 20585, (202) 586–4400. The Internet Issued at Washington, DC on March 27, program are available to SEAs as soon 1995. as possible. address is: [email protected] Because of the criteria and procedures Supplementary Information: Purpose of the Rachel Murphy Samuel, Board. The purpose of the Board is to provide Acting Deputy Advisory Committee, announced in this notice for awarding the Assistant Secretary for Environmental FY 1995 consortium incentive grants, Management Officer. Management (EM) with advice and [FR Doc. 95–7852 Filed 3–29–95; 8:45 am] the regulations and selection criteria recommendations on issues confronting the contained in 34 CFR Part 205 (Migrant Environmental Management program and the BILLING CODE 6450±01±P Education Coordination Program) do not Programmatic Environmental Management apply to this competition. Impact Statement, from the perspectives of affected groups and State and local Energy Information Administration Applicability of the Education Governments. The Board will help to Department General Administrative improve the Environmental Management American Statistical Association Regulations (EDGAR) Program by assisting in the process of Committee on Energy Statistics In view of the process that the securing consensus recommendations, and providing the Department’s numerous AGENCY: U. S. Department of Energy. Department will use to obtain publics with opportunities to express their ACTION: Notice of open meeting. information on proposed SEA opinions regarding the Environmental consortium arrangements, and the Management Program. SUMMARY: Pursuant to the provisions of criteria it will use to determine, by the Federal Advisory Committee Act formula, the amount of consortium Tentative Agenda (Pub. L. 92–463, 86 Stat. 770), notice is incentive grant that each applicant SEA Monday, April 17, 1995 hereby given of the following meeting: will receive, the regulations in 34 CFR 4:30 p.m. Co-chairs Open the Meeting Name: American Statistical Association’s Part 75 (Direct Grant Programs) of the Presentation on Environmental Committee on Energy Statistics, a utilized Education Department General Management Budget Challenges & Federal Advisory Committee. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16465 Dates and Times: Thursday, April 20, 9:00 1. Iowa-Illinois Gas and Electric excluding curtailable load from the am–4:15 pm; Friday, April 21, 9:00 am–12:00 Company determination of a company’s load pm. [Docket No. ER95–724–000] responsibility under the System Place: Holiday Inn-Capitol, 550 C Street, Agreement results in an unjust and S.W., Washington, DC. Take notice that on March 10, 1995, unreasonable cost allocation to Contact: Ms. Renee Miller, EIA Committee Iowa-Illinois Gas and Electric Company companies that do not cause these costs Liaison, U.S. Department of Energy, Energy (Iowa-Illinois), 206 East Second Street, Information Administration, EI–72, to be incurred, and results in cross- P.O. Box 4350, Davenport, Iowa 52808, subsidation among the companies. Washington, DC 20585, Telephone: (202) tendered for filing pursuant to § 35.12 of 254–5507. Additionally, it is alleged that the the Regulations under the Federal absence of any provision in MSS–3 for Supplementary Information: Power Act an initial rate schedule allocating marginal energy costs to Purpose of the Committee: To advise the consisting of a Transmission Service customers that purchase energy under Department of Energy, Energy Information Agreement dated as of December 16, Entergy’s ‘‘real time pricing’’ rate Administration (EIA), on EIA technical 1994 between Iowa-Illinois and Louis schedules at the retail level statistical issues and to enable the EIA to Dreyfus Electric Power Inc. (Dreyfus). discriminates against a company that benefit from the Committee’s expertise Iowa-Illinois states that the terms and concerning other energy statistical matters. offers real time pricing. conditions of this Agreement are Comment date: April 24, 1995, in Tentative Agenda identical in all respects to Iowa-Illinois accordance with Standard Paragraph E Transmission Service Agreements with Thursday, April 20, 1995 at the end of this notice. other power marketers which have been A. Opening Remarks accepted for filing by the Commission in 3. New England Power Company B. Major Topics Docket Nos. ER95–334–000, ER95–426– 1. Effects of Structural Changes in Industry [Docket No. ER95–725–000] 2. How the NEMS Transportation Module 000, and ER95–541–000. Iowa-Illinois Take notice that on March 10, 1995, Operates further states that under the Agreement New England Power Company, tendered 3. Reconciliation of AEO and STEO it will provide non-firm transmission for filing a transmission contract for Forecasts (Public Comment) service to Dreyfus on a monthly, service to the Massachusetts Municipal weekly, daily or hourly basis to transmit Friday, April 21, 1995 Wholesale Electric Company. power and associated energy from Comment date: April 7, 1995, in 4. Review of RECS Survey Design certain defined points to other defined accordance with Standard Paragraph E 5. Estimates of State Level Natural Gas points on Iowa-Illinois’ interconnected Consumption at the end of this notice. electric system. Service will be provided 6. Results and Overall Plans for Customer 4. New England Power Company Surveys (Public Comment) upon request by Dreyfus on an as C. Topics for Future Meetings available basis as determined by Iowa- [Docket Nos. ER95–267–002 and EL95–25– Public Participation: The meeting is open Illinois. 002] to the public. The Chairperson of the Iowa-Illinois requests a waiver of the Take notice that on March 13, 1995, committee is empowered to conduct the Commission’s 60-day notice New England Power Company (NEP), meeting in a fashion that will facilitate the requirement in order to permit the made a compliance filing in the above orderly conduct of business. Written Agreement to become effective on or referenced, consolidated dockets. NEP’s statements may be filed with the committee before April 18, 1995. compliance filing conforms fully with either before or after the meeting. If there are Copies of the filing were served upon the Commission’s February 9 order any questions, please contact Ms. Renee the Iowa Utilities Board, the Illinois (New England Power Company) 70 Miller, EIA Committee Liaison, at the address Commerce Commission and Dreyfus. FERC ¶ 61,152 (1995) by revising NEP’s or telephone number listed above or Mrs. Comment date: April 7, 1995, in Antoinette Martin at (202) 254–5409. proposed W–95 rate to compute Transcripts: Available for public review accordance with Standard Paragraph E decommissioning and depreciation and copying at the Public Reading Room, at the end of this notice. expense and to amortize materials and (Room 1E–290), 1000 Independence Avenue, 2. Louisiana Public Service Commission supplies inventories and final nuclear SW, Washington, DC 20585, (202) 586–6025, vs. Entergy Services, Inc. fuel cores for NEP’s entitlements in between the hours of 9:00 a.m. and 4:00 p.m., Seabrook Unit No. 1 and Millstone Unit Monday through Friday. [Docket No. EL95–33–000] No. 3 on the basis of their remaining Issued at Washington, DC on March 27, Take notice that on March 15, 1995, Nuclear Regulatory Commission license 1995. the Louisiana Public Service lives of 36 and 39 years, respectively. Rachel Murphy Samuel, Commission filed a complaint under Comment date: April 7, 1995, in Acting Deputy Advisory Committee, §§ 205 and 206 of the Federal Power accordance with Standard Paragraph E Management Officer Act, 16 U.S.C. §§ 824d and 824e against at the end of this notice. [FR Doc. 95–7853 Filed 3–29–95; 8:45 am] Entergy Services, Inc., as the 5. Illinois Power Company BILLING CODE 6450±01±P representative of Entergy Corporation and its operating companies, Louisiana [Docket No. ER95–726–000] Power & Light Co. (LP&L), Arkansas Take notice that on March 10, 1995, Federal Energy Regulatory Power & Light Co. (AP&L), Mississippi Illinois Power Company (Illinois), Commission Power & Light Co. (MP&L), and New tendered for filing an Interchange Orleans Public Service, Inc. (NOPSI). [Docket No. ER95±724±000, et al.] Agreement between Illinois and NorAm The complaint seeks a revision of the Energy Services, Inc. (NES). Illinois Iowa-Illinois Gas & Electric Company, Entergy System Agreement based upon states that the purpose of this agreement et al.; Electric Rate and Corporate allegations that the terms of that is to provide for the buying and selling Regulation Filings agreement, under current of capacity and energy between Illinois circumstances, are unjust and and NES. March 23, 1995. unreasonable. Specifically, the Comment date: April 7, 1995, in Take notice that the following filings complaint alleges that the absence of accordance with Standard Paragraph E have been made with the Commission: any provision in the System Agreement at the end of this notice. 16466 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 6. PacifiCorp Replacement Project.1 This EA will be received are considered during the [Docket No. ER95–727–000] used by the Commission in its decision- preparation of the EA. State and local making process to determine whether an government representatives are Take notice that on March 10, 1995, environmental impact statement is encouraged to notify their constituents PacifiCorp, tendered for filing in necessary and whether to approve the of this proposed action and encourage accordance with 18 CFR Part 35 of the project. them to comment on their areas of Commission’s Rules and Regulations, concern. Service Agreements with AES Power Summary of the Proposed Project The EA will discuss impacts that Inc. (AES), Engelhard Power Marketing, Williams Natural Gas Company could occur as a result of the Inc. (Engelhard), InterCoast Power (Williams) wants to replace about 2,200 construction and operation of the Marketing Company (InterCoast) and feet of 8-inch lateral pipeline with about proposed project under these general Gulfstream Energy, LLC (Gulfstream) 2,270 feet of 2-inch and 6-inch lateral headings: under PacifiCorp’s FERC Electric Tariff, pipeline in Wilson County, Kansas. The • geology and soils Volume No. 3, Service Schedule PPL–3. replacement would continue to provide • water resources, fisheries, and Copies of this filing were supplied to service to the Neodesha, Kansas area. wetlands 3 AES, Engelhard, InterCoast, Gulfstream, Williams requests Commission • vegetation and wlidlife the Washington Utilities and authorization to construct and operate • endangered and threatened species Transportation Commission and the • public safety Public Utility Commission of Oregon. the following facilities needed to • continue service: land use Comment date: April 7, 1995, in • • cultural resources accordance with Standard Paragraph E abandon in place 1,300 feet of 8- • inch lateral pipeline; air quality and noise at the end of this notice. • hazardous waste • abandon by removal 900 feet of 8- We will also evaluate possible Standard Paragraphs inch lateral pipeline; alternatives to the proposed project or • construct 2,144 feet of 6-inch lateral E. Any person desiring to be heard or portions of the project, and make to protest said filing should file a pipeline; and • construct 130 feet of 2-inch lateral recommendations on how to lessen or motion to intervene or protest with the avoid impacts on the various resource Federal Energy Regulatory Commission, pipeline. The general location of the project areas. 825 North Capitol Street, N.E., Our independent analysis of the facilities and specific locations for Washington, D.C. 20426, in accordance issues will be in the EA. Depending on facilities on new sites are shown in with Rules 211 and 214 of the the comments received during the appendix 1.2 Commission’s Rules of Practice and scoping process, the EA may be Procedure (18 CFR 385.211 and 18 CFR Land Requirements for Construction published and mailed to Federal, state, 385.214). All such motions or protests Construction for the proposed and local agencies, public interest should be filed on or before the groups, interested individuals, affected comment date. Protests will be facilities would require about 3.45 acres of land. Following construction, about landowners, newspapers, libraries, and considered by the Commission in the Commission’s official service list for determining the appropriate action to be 2.3 acres would be maintained as permanent right-of-way. The remaining this proceeding. A comment period will taken, but will not serve to make be allotted for review if the EA is protestants parties to the proceeding. 1.3 acres of land would be restored and allowed to revert to its former use. published. We will consider all Any person wishing to become a party comments on the EA before we must file a motion to intervene. Copies The EA Process recommend that the Commission of this filing are on file with the approve or not approve the project. Commission and are available for public The National Environmental Policy inspection. Act (NEPA) requires the Commission to Currently Identified Environmental take into account the environmental Lois D. Cashell, Issues impacts that could result from an action Secretary. whenever it considers the issuance of a One issue that has arisen based on a [FR Doc. 95–7767 Filed 3–29–95; 8:45 am] Certificate of Public Convenience and preliminary review of the proposed BILLING CODE 6717±01±P Necessity. NEPA also requires us to facilities and the environmental discover and address concerns the information provided by Williams concerns the location of a residential [Docket No. CP95±178±000] public may have about proposals. We call this ‘‘scoping’’. The main goal of the area near the proposed pipeline. The Williams Natural Gas Co.; Notice of scoping process is to focus the analysis proposed right-of-way has been routed Intent To Prepare an Environmental in the EA on the important to avoid impact to residences, however Assessment for the Proposed Wilson environmental issues. By this Notice of several new landowners would be County Replacement Project and Intent, the Commission requests public affected by the location of the new Request for Comments on comments on the scope of the issues it pipeline right-of-way in Neodosha, Environmental Issues will address in the EA. All comments Kansas. Public Participation March 24, 1995. 1 Williams Natural Gas Company’s application The staff of the Federal Energy was filed with the Commission under Section 7 of You can make a difference by sending Regulatory Commission (FERC or the Natural Gas Act and Part 157 of the a letter addressing your specific Commission) will prepare an Commission’s regulations. comments or concerns about the project. environmental assessment (EA) that will 2 The appendices referenced in this notice are not You should focus on the potential being printed in the Federal Register. Copies are discuss the environmental impacts of available from the Commission’s Public Reference environmental effects of the proposal, the construction and operation of the and Files Maintenance Branch, Room 3104, 941 facilities proposed in the Wilson County North Capitol Street, N.E., Washington, D.C. 20426, 3 According to the applicant, the project will not or call (202) 208–1371. Copies of the appendices affect any waters of the United States. We will were sent to all those receiving this notice in the report any potential impacts, or their absence, mail. under this heading. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16467 alternatives to the proposal (including with the Commission and is available 1. Phillips Gas Pipeline Company alternative routes), and measures to for public inspection: [Docket No. CP95–262–000] avoid or lessen environmental impact. a. Type of Application: Major License. The more specific your comments, the b. Project No.: 11214–001. Take notice that on March 13, 1995, more useful they will be. Please follow c. Date Filed: February 22, 1995. Phillips Gas Pipeline Company the instructions below to ensure that (Phillips), P.O. Box 1967, Houston, your comments are received and d. Applicant: Southwestern Electric Texas 77251–1967, filed an application properly recorded: Cooperative, Inc. pursuant to Section 7(b) of the Natural • Address your letter to: Lois Cashell, e. Name of Project: Carlyle Reservoir. Gas Act for an order permitting and Secretary, Federal Energy Regulatory f. Location: On the Kaskaskia River approving the abandonment of all of Commission, 825 North Capitol St., NE., near the City of Carlyle, Clinton County, Phillips’ interstate pipeline Washington, DC 20426. Illinois. transmission facilities located in • Reference Docket No. CP95–130– g. Filed Pursuant to: Federal Power Oklahoma and Texas in order to convert 000. Act, 16 U.S.C. 791(a)825(r). the facilities to its former configuration • Send a copy of your letter to: Ms. h. Applicant Contact: Mr. Robert for oil transportation, all as more fully Amy Olson, EA Project Manager, Weinberg, 1615 M Street, N.W. Suite set forth in the application which is on Federal Energy Regulatory Commission, 800, Washington, DC 20036, (202) 467– file with the Commission and open to 825 North Capitol St., NE., Room 7312, 6370. public inspection. Washington, DC 20426; and i. FERC Contact: Charles T. Raabe (dt) Phillips requests permission and • Mail your comments so that they (202) 219–2811. approval to abandon all of its interstate will be received in Washington, DC on j. Comment Date: On or before April pipeline facilities consisting of or before May 1, 1995. 24, 1995. approximately 153 miles of 30-inch If you wish to receive a copy of the k. Description of Project: The pipeline that transports natural gas from EA, you should request one from Ms. proposed project would utilize the Cushing, Oklahoma to approximately 1 Olson at the above address. existing U.S. Army Corps of Engineers’ mile across the northern Texas border, Becoming an Intervenor Carlyle Dam and Reservoir and would as well as related facilities and consist of: (1) An intake structure; (2) equipment. Phillips proposes to In addition to involvement in the EA five 96-inch-diameter penstocks; (3) a abandon these facilities so that Phillips scoping process, you may want to power plant having five 800–Kw would be able to perform its former become an official party to the turbine/generator units; (4) a 1400-foot- function of transporting oil. proceeding or become an ‘‘intervenor’’. long underground and a 3,000-foot-long Among other things, intervenors have Phillips states that Phillips has not overhead transmission line; and (5) the right to receive copies of case- been able to transport any natural gas on appurtenant facilities. related Commission documents and a firm basis for almost two years, since filings by other intervenors. Likewise, l. With this notice, we are initiating May 1, 1993, which has significantly each intervenor must provide copies of consultation with the State Historic impaired Phillips’ ability to recover its its filings to all other parties. If you Preservation officer (SHPO), as required cost of service because Phillips’ rates are want to become an intervenor you must by § 106, National Historic Preservation based upon recovery of 100% of its file a motion to intervene according to Act, and the regulations of the Advisory fixed costs through its reservation fees. Rule 214 of the Commission’s Rules of Council on Historic Preservation, 36 Phillips states that Phillips Gas Practice and Procedure (18 CFR CFR 800.4. Marketing Company (PGMC), an affiliate 385.214) (see appendix 2). m. Pursuant to § 4.32(b)(7) of 18 CFR of Phillips and Phillips’ primary The date for filing of timely motions of the Commission’s Regulations, if any interruptible customer, representing to intervene in this proceeding has resource agency, SHPO, Indian Tribe, or over 97% of Phillips’ annual volumetric passed. Therefore, parties now seeking person believes that an additional throughput during 1994, recently to file late interventions must show scientific study should be conducted in advised Phillips that PGMC would no good cause, as required by Section order to form an adequate factual basis longer require any transportation service 385.214(b)(3), why this time limitation for a complete analysis of the on Phillips facilities in the near future. should be waived. Environmental issues application of its merits, the resource Phillips indicates that the imminent loss have been viewed as good cause for late agency, SHPO, Indian Tribe, or person of over 97% of Phillips’ volumetric intervention. You do not need must file a request for a study with the throughput and Phillips’ inability to intervenor status to have your scoping Commission not later than 60 days from acquire any firm transportation comments considered. the filing date and serve a copy of the contracts compels Phillips to seek Additional information about the request on the applicant. abandonment authorization for the proposed project is available from Ms. Lois D. Cashell, facilities. Phillips states that Phillips Amy Olson, EA Project Manager, at Secretary. has entered into a joint venture (202) 208–1199. [FR Doc. 95–7762 Filed 3–29–95; 8:45 am] agreement with ARCO Pipeline Company (ARCO) regarding plans to Lois D. Cashell, BILLING CODE 6717±01±M convert the facilities into an oil pipeline Secretary. to provide useful and necessary oil [FR Doc. 95–7765 Filed 3–29–95; 8:45 am] transportation services. ARCO would BILLING CODE 6717±01±M [Docket No. CP95±262±000, et al.] make all appropriate filings at the Phillips Gas Pipeline Company, et al.; Commission prior to commencing operation of any new oil pipeline Notice of Application Natural Gas Certificate Filings facility, it is stated. March 24, 1995. March 23, 1995. Comment date: April 13, 1995, in Take notice that the following Take notice that the following filings accordance with Standard Paragraph F hydroelectric application has been filed have been made with the Commission: at the end of this notice. 16468 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 2. Texas Eastern Transmission Tennessee states that Egan requested and is located in Crittenden County, Corporation the construction of the bi-directional Arkansas. NGT states that no customers [Docket No. CP95–267–000] point to accommodate up to 300,000 or services will be abandoned. Dth/d on Tennessee’s system. Tennessee Comment date: May 8, 1995, in Take notice that on March 17, 1995, states that it is Egan’s intent to market accordance with Standard Paragraph G Texas Eastern Transmission Corporation the storage space to Tennessee’s existing at the end of this notice. (Texas Eastern), 5400 Westheimer Court, local distribution customers. Tennessee Standard Paragraphs P.O. Box 1642, Houston, Texas 77251– asserts that under existing firm or 1642, filed in Docket No. CP95–267–000 interruptible transportation agreements F. Any person desiring to be heard or a request pursuant to Sections 157.205 gas will be moved to and from storage. to make any protest with reference to and 157.211 of the Commission’s Tennessee proposes to install two 8- said application should on or before the Regulations under the Natural Gas Act inch hot tap assemblies on its 16-inch comment date, file with the Federal (18 CFR 157.205, 157.211) for 507G–100 Line and one 12-inch hot tap Energy Regulatory Commission, authorization to construct and install an assembly on its 24-inch 500–1 Line, Washington, D.C. 20426, a motion to additional tap valve for existing Meter including two valve actuators, all of intervene or a protest in accordance Station 2866 (M&R 2866) in DeSoto which will be on Tennessee’s existing with the requirements of the Parish, Louisiana under Texas Eastern’s right-of-way in Acadia Parish, Commission’s Rules of Practice and blanket certificate issued in Docket No. Louisiana. The electronic gas Procedure (18 CFR 385.214 or 385.211) CP82–535–000 pursuant to Section 7 of measurement (EGM) will be installed by and the Regulations under the Natural the Natural Gas Act, all as more fully set Tennessee on a site approved by Egan. Gas Act (18 CFR 157.10). All protests forth in the request that is on file with Egan proposes to install approximately filed with the Commission will be the Commission and open to public 200 feet of interconnecting pipe and considered by it in determining the inspection. measurement facilities, located on a site appropriate action to be taken but will Texas Eastern proposes to install an provided by Egan. Tennessee will not serve to make the protestants parties additional 2-inch tap valve (hot tap) on install, own, operate and maintain the to the proceeding. Any person wishing its 24-inch Line 11 near Mile Post hot tap assemblies, the two valve to become a party to a proceeding or to 275.79 in DeSoto Parish, Louisiana for actuators and EGM, inspect the participate as a party in any hearing delivery of additional natural gas interconnecting pipe, and inspect and therein must file a motion to intervene quantities to International Paper Co (IP). operate the meter. Egan will install, in accordance with the Commission’s The proposed hot tap will increase the own, operate, and maintain the Rules. Take further notice that, pursuant to maximum delivery capacity at M&R interconnecting pipe, and install, own, the authority contained in and subject to 2866 by up to 6,000 Dth/d. Additional and maintain the meter. The estimated the jurisdiction conferred upon the interruptible transportation service will cost for the facilities proposed by Federal Energy Regulatory Commission be provided by Texas Eastern to IP Tennessee is $192,400, which Egan will by Sections 7 and 15 of the Natural Gas pursuant to Rate Schedule IT–1. Texas reimburse Tennessee for 100 percent. Act and the Commission’s Rules of Eastern will install, own, operate and Tennessee states that at the present Practice and Procedure, a hearing will maintain the hot tap. IP will continue to time, there is no anticipation of be held without further notice before the own and operate M&R 2866. IP will pay increasing the maximum daily contract Commission or its designee on this Texas Eastern $15,000 for incurred quantities under Tennessee’s customers’ application if no motion to intervene is installation costs and expenses. Texas agreements, whether firm or filed within the time required herein, if Eastern states that the delivery point interruptible; therefore, there is no the Commission on its own review of installation will not effect its peak day impact anticipated on peak day and the matter finds that a grant of the or annual deliveries and that its other annual deliveries. Comment date: May 8, 1995, in certificate and/or permission and customers will not be effected. accordance with Standard Paragraph G approval for the proposed abandonment Comment date: May 8, 1995, in at the end of this notice. are required by the public convenience accordance with Standard Paragraph G and necessity. If a motion for leave to 4. NorAm Gas Transmission Company at the end of this notice. intervene is timely filed, or if the 3. Tennessee Gas Pipeline Company [Docket No. CP95–276–000] Commission on its own motion believes Take notice that on March 21, 1995, that a formal hearing is required, further [Docket No. CP95–273–000] NorAm Gas Transmission Company notice of such hearing will be duly Take notice that on March 20, 1995, (NGT), 1600 Smith Street, Houston, given. Tennessee Gas Pipeline Company Texas 77002, filed in Docket No. CP95– Under the procedure herein provided (Tennessee), P.O. Box 2511, Houston, 276–000 a request pursuant to Sections for, unless otherwise advised, it will be Texas 77252–2511, filed in Docket No. 157.205 and 157.216 of the unnecessary for applicant to appear or CP95–273–000 a request pursuant to Commission’s Regulations under the be represented at the hearing. Sections 157.205 and 157.212(a) of the Natural Gas Act (18 CFR 157.205, G. Any person or the Commission’s Commission’s Regulations under the 157.216) for authorization to abandon staff may, within 45 days after issuance Natural Gas Act (18 CFR 157.205 and the Marion Compressor Station under of the instant notice by the Commission, 157.212(a)) for authorization to establish NGT’s blanket certificate issued in file pursuant to Rule 214 of the a bi-directional point in Acadia Parish, Docket No. CP82–384–000, et al., Commission’s Procedural Rules (18 CFR Louisiana, in order to receive and pursuant to Section 7 of the Natural Gas 385.214) a motion to intervene or notice deliver gas to a new storage facility Act, all as more fully set forth in the of intervention and pursuant to operated by Egan Hub Partners, L.P. request that is on file with the § 157.205 of the Regulations under the (Egan), under the blanket certificate Commission and open to public Natural Gas Act (18 CFR 157.205) a issued in Docket No. CP82–413–000, all inspection. protest to the request. If no protest is as more fully set forth in the request NGT proposes to abandon the inactive filed within the time allowed therefor, which is on file with the Commission Marion Compressor Station. It consist of the proposed activity shall be deemed to and open to public inspection. two 350 horsepower reciprocal engines be authorized effective the day after the Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16469 time allowed for filing a protest. If a Commission will be considered by it in 0620 and Robert McLean (202) 208– protest is filed and not withdrawn determining the appropriate action to be 1179 at the Commission. within 30 days after the time allowed taken but will not serve to make the Lois D. Cashell, for filing a protest, the instant request protestants parties to the proceeding. Secretary. shall be treated as an application for Any person wishing to become a party [FR Doc. 95–7761 Filed 3–29–95; 8:45 am] authorization pursuant to Section 7 of to a proceeding or to participate as a BILLING CODE 6717±01±M the Natural Gas Act. party in any hearing therein must file a Lois D. Cashell, motion to intervene in accordance with Secretary. the Commission’s Rules. [Docket Nos. RP93±34±000, RP94±227±000, Take further notice that, pursuant to CP94±254±000, CP94±751±000, CP94±211± [FR Doc. 95–7766 Filed 3–29–95; 8:45 am] 000, CP94±676±000, CP95±70±000, CP95± BILLING CODE 6717±01±P the authority contained in and subject to the jurisdiction conferred upon the 153±000, RS92±87±000, CP95±112±000] Federal Energy Regulatory Commission Transwestern Pipeline and [Docket No. CP95±279±000] by Sections 7 and 15 of the Natural Gas Transwestern Gathering Companies; Act and the Commission’s Rules of Settlement Conference Questar Pipeline Company; Notice of Practice and Procedure, a hearing will Application be held without further notice before the March 24, 1995. March 24, 1995. Commission or its designee on this Take notice that a settlement Take notice that on March 22, 1995, application if no motion to intervene is conference will be convened in the Quester Pipeline Company (Questar), 79 filed within the time required herein, if above-docketed proceedings on South State Street, Salt Lake City, Utah the Commission on its own review of Thursday, March 30, 1995, at 10:00 84111, filed in Docket No. CP95–279– the matter finds that permission and a.m., in a room to be designated at the 000 an application pursuant to Section approval for the proposed abandonment offices of the Federal Energy Regulatory 7(b) of the Natural Gas Act for are required by the public convenience Commission, 810 First Street, N.E., authorization to abandon by removal 17 and necessity. If a motion for leave to Washington, D.C. for the purpose of meter runs and appurtenant facilities at intervene is timely filed, or if the exploring the possible settlement of the Questar’s Clay Basin Storage Field (Clay Commission on its own motion believes above-captioned Transwestern Pipeline Basin) located in Daggett County, Utah, that a formal hearing is required, further Company proceedings. The conference all as more fully set forth in the notice of such hearing will be duly may continue on Friday, March 31, application which is on file with the given. 1995, at 10:00 a.m., for the purpose of Commission and open to public Under the procedure herein provided discussing the settlement of the inspection. for, unless otherwise advised, it will be certificate proceedings. Questar requests authority to abandon unnecessary for Questar to appear or be Any party, as defined by 18 CFR 17 previously certificated meter runs, represented at the hearing. 385.102(c), or any participant as defined located on various storage injection/ Lois D. Cashell, in 18 CFR 385.102(b), is invited to withdrawal laterals, that have been Secretary. attend. Persons wishing to become a utilized historically as flow-control [FR Doc. 95–7763 Filed 3–29–95; 8:45 am] party to any of the above-docketed metering facilities in association with BILLING CODE 6717±01±M proceedings must move to intervene and storage field dehydration and receive intervenor status pursuant to the withdrawal activities at Clay Basin. Commission’s regulations (18 CFR Questar explains that the metering [Docket Nos. RP93±148±004, RP95±62±000, 385.214). RP95±63±000, RP95±64±000, RP95±88±000, For additional information, please facilities are located on the Clay Basin RP95±90±000, RP95±112±000] side of the primary custody-transfer contact Scott E. Koves at (202) 208– metering facilities utilized to measure Tennessee Gas Pipeline Co.; Notice of 0492. natural gas volumes delivered to and Technical Conference Lois D. Cashell, received from Clay Basin via Questar’s Secretary. transmission system. Further, Questar March 24, 1995. [FR Doc. 95–7764 Filed 3–29–95; 8:45 am] explains that the metering facilities to Take notice that a technical BILLING CODE 6717±01±M be abandoned have been replaced by conference concerning the above updated equipment and that there will dockets will be convened on April 6, be no adverse impact on storage services 1995, at 9:00 a.m., at the Crystal City Office of Fossil Energy provided by Questar at Clay Basin. It is Marriott (Crystal Forum), 1999 Jefferson stated that the gas plant investment Davis Highway Arlington, Virginia. The [FE Docket No. 95±05±NG] associated with the Clay Basin metering purpose of the technical conference is to Wasatch Oil & Gas Corporation; Order facilities proposed to be abandoned is continue discussions begun at the prior Granting Blanket Authorization To approximately $250,000. conference concerning Tennessee’s Import Natural Gas From Canada Any person desiring to be heard or to operations. make any protest with reference to said All parties, as defined by 18 CFR AGENCY: Office of Fossil Energy, DOE. application should on or before April 3, 385.102(c), and all participants as ACTION: Notice of order. 1995, file with the Federal Energy defined in 18 CFR 385.102(b), are Regulatory Commission, Washington, invited to attend. Persons wishing to SUMMARY: The Office of Fossil Energy of D.C. 20426, a motion to intervene or a become a party must move to intervene the Department of Energy gives notice protest in accordance with the and receive intervenor status pursuant that it has issued an order granting requirements of the Commission’s Rules to the Commission’s Regulations (18 Wasatch Oil & Gas Corporation of Practice and Procedure (18 CFR CFR 385.214). authorization to import up to 5 Bcf of 385.214 or 385.211) and the Regulations For additional information, please natural gas from Canada over a two-year under the Natural Gas Act (18 CFR contact Jake Hiatt (713) 757–6855 at term beginning on the date of the first 157.10). All protests filed with the Tennessee or Chris Young (202) 208– import. 16470 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices This order is available for inspection Public Law 89–777 (46 U.S.C. 817(d)) King Yang Shipping, Inc., 222431 S. and copying in the Office of Fuels and the Federal Maritime Commission’s Vermont Avenue, Torrance, CA Programs Docket Room, 3F–056, implementing regulations at 46 CFR Part 90502, Officer: Arthur King, President Forrestal Building, 1000 Independence 540, as amended: Quality Customs Broker, Inc. dba, Avenue, S.W., Washington, D.C. 20585, West Travel, Inc. (d/b/a Alaska Quality Freight Services International, (202) 586–9478. The docket room is Sightseeing/Cruise West), 4th and 7071 South 13th Street, Suite 103, open between the hours of 8:00 a.m. and Battery Bldg., Suite 700, Seattle, Oak Creek, WI 53154, Officer: Karin 4:30 p.m., Monday through Friday, Washington 98121 La Freniere, President except Federal holidays. Vessel: SPIRIT OF COLUMBIA All-Cargo Express, 7800 North University Drive, #201, Tamarac, FL Issued in Washington, D.C., March 16, Dated: March 24, 1995. 1995. 33321, Alfred L. Cohen, Sole Joseph C. Polking, Clifford P. Tomaszewski, Proprietor Secretary. Director, Office of Natural Gas, Office of Fuels Dated: March 27, 1995. Programs, Office of Fossil Energy. [FR Doc. 95–7790 Filed 3–29–95; 8:45 am] By the Federal Maritime Commission. [FR Doc. 95–7854 Filed 3–29–95; 8:45 am] BILLING CODE 6730±01±M Joseph C. Polking, BILLING CODE 6450±01±P Secretary. Security for the Protection of the [FR Doc. 95–7789 Filed 3–29–95; 8:45 am] [FE Docket No. 95±01±NG] Public indemnification of Passengers BILLING CODE 6730±01±M for Nonperformance of Transportation; Pennsylvania Gas and Water Notice of Issuance of Certificate Company; Order Granting Long-Term (Performance) FEDERAL RESERVE SYSTEM Authorization To Import Natural Gas [Docket No. R±0867] From Canada Notice is hereby given that the following have been issued a Certificate Internal Appeals Process AGENCY: Office of Fossil Energy, DOE. of Financial Responsibility for ACTION: Notice of order. Indemnification of Passengers for AGENCY: Board of Governors of the Nonperformance of Transportation Federal Reserve System. SUMMARY: The Office of Fossil Energy of pursuant to the provisions of Section 3, ACTION: Final guidelines. the Department of Energy gives notice Public Law 89–777 (46 U.S.C. 817(e)) that it has issued an order granting and the Federal Maritime Commission’s SUMMARY: The Board is issuing its final Pennsylvania Gas and Water Company implementing regulations at 46 CFR Part guidelines on an internal appeals long-term authorization to import up to 540, as amended: process for institutions wishing to 14,703 Mcf of natural gas per day from Carnival Corporation, 3655 N.W. 87th appeal an adverse material supervisory Canada beginning May 1, 1995, through Avenue, Miami, Florida 33178–2428 determination. October 31, 2002. This order is available EFFECTIVE DATE: March 24, 1995. for inspection and copying in the Office Vessel: CARNIVAL DESTINY of Fuels Programs Docket Room, Room Dated: March 24, 1995. FOR FURTHER INFORMATION CONTACT: 3F–056, Forrestal Building, 1000 Joseph C. Polking, Gregory A. Baer, Managing Senior Counsel, Legal Division (202/452–3236); Independence Avenue, S.W., Secretary. Washington, D.C. 20585, (202) 586– Shawn McNulty, Assistant Director, [FR Doc. 95–7791 Filed 3–29–95; 8:45 am] Division of Consumer and Community 9478. The docket room is open between BILLING CODE 6730±01±M the hours of 8:00 a.m. and 4:30 p.m., Affairs (202/452–3946); or Ann Marie Monday through Friday, except Federal Kohlligian, Senior Counsel/Manager, holidays. Ocean Freight Forwarder License Division of Banking Supervision and Applicants Regulation (202/452–3528), Board of Issued in Washington, DC on March 16, Governors of the Federal Reserve 1995. Notice is hereby given that the System. For the hearing impaired only, Clifford P. Tomaszewski, following applicants have filed with the Telecommunication Device for the Deaf Director, Office of Natural Gas, Office of Fuels Federal Maritime Commission (TDD), Dorothea Thompson (202/452– Programs, Office of Fossil Energy. applications for licenses as ocean freight 3544). [FR Doc. 95–7855 Filed 3–29–95; 8:45 am] forwarders pursuant to section 19 of the SUPPLEMENTARY INFORMATION: BILLING CODE 6450±01±P Shipping Act of 1984 (46 U.S.C. app. 1718 and 46 CFR 510). Background Persons knowing of any reason why Section 309 of the Riegle Community FEDERAL MARITIME COMMISSION any of the following applicants should Development and Regulatory not receive a license are requested to Improvement Act of 1994 (the Act), 12 Security for the Protection of the contact the Office of Freight Forwarders, Public Financial Responsibility to Meet U.S.C. 4806, requires the Board (as well Federal Maritime Commission, as the other Federal banking agencies) to Liability Incurred for Death or Injury to Washington, D.C. 20573. Passengers or Other Persons on establish an independent, intra-agency Voyages; Notice of Issuance of Gilbert International, Inc., 330 S. Stiles appellate process that is available to Certificate (Casualty) Street, Linden, NJ 07036, Officers: institutions to seek review of material Richard Gilbert, President, Ken Gross, supervisory determinations. Section 309 Notice is hereby given that the Vice President specifies various requirements that the following have been issued a Certificate Worchel Transport Inc. d/b/a Prime appellate process must meet. of Financial Responsibility to Meet Transport, 182–09 149th Road, On December 29, 1994, the Board Liability Incurred for Death or Injury to Springfield Gardens, NY 11413, published for public comment its Passengers or Other Persons on Voyages Officers: Sam Fischel, President, proposed guidelines that would pursuant to the provisions of Section 2, David Wortman, Vice President implement the intra-agency appellant Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16471 process required by section 309 of the are discussed below, relate to five areas: under appeal, but anyone who directly Act. (59 FR 67297 (December 29, 1994)). (1) protection from examiner retaliation; or indirectly supervises the person(s) In general, the proposed guidelines (2) independence of the review panel; who made such determination. required that: (1) All appeals be in (3) who should decide the final appeal Section 309 of the Act reflects a writing and approved by the at the Board; (4) the need for additional, Congressional conclusion that an intra- institution’s board of directors; (2) all specific timeframes; and (5) procedural agency appeals process will provide appeals be heard and decided within issues. institutions with an adequate means to specified timeframes; (3) the initial (1) Protection From Examiner redress adverse material supervisory appeal be heard by a person or persons Retaliation determinations. The Board does not selected by the Reserve Bank (the believe that it is necessary to expand the review panel) who had not participated Thirteen comments raised concerns guidelines beyond what is required by in, or reported to the persons who made, about examiner retaliation. Several the statute. Similarly, section 309 the material supervisory determination comments suggested that the requires that the person hearing the under review; (4) an adverse decision by Ombudsman, which the Board is appeal not directly or indirectly report the review panel be appealable to a required to establish under section 309 to the person who initially made the Reserve Bank President; (5) an adverse of the Act, should play a role in supervisory decision under review. decision by a Reserve Bank President be addressing this issue, such as serving as Consequently, the composition of the appealable to the Board; and (6) Reserve an independent contact for institutions review panel has not been modified in Banks establish safeguards to protect that believe they have been subject to the final guidelines. institutions that file appeals from some form of retaliation or ensuring that examiner retaliation. different examiners conduct (3) Who Decides the Final Appeal at the Although section 309 requires the examinations that commence after an Board appeal has been filed. Some comments Board to develop an internal appeals The proposed guidelines provided for suggested that greater Board process only for state member banks, the an appeal of an adverse decision by a involvement in the appeals process proposed guidelines expanded the Reserve Bank President to the would protect institutions against process and made it available to all appropriate Board division director, retaliation, while others suggested that institutions that are subject to Federal who would consult with the appropriate the guidelines include specific Reserve oversight, including bank Governor of the Board’s oversight holding companies, U.S. agencies and sanctions and disciplinary actions for examiners found to have engaged in committee for that division. Three branches of foreign banks and Edge retaliation due to an appeal. comments suggested that it would be corporations.1 The proposed guidelines The Board acknowledges that some more suitable for a Governor to review also defined a ‘‘material supervisory institutions may perceive that availing a decision by a Reserve Bank President. determination’’ to include all material themselves of the appeals process may The final guidelines have been modified matters relating to the examination or result in retaliatory action by examiners. so that an appeal of a Reserve Bank inspection process, but exclude those As proposed, the guidelines require the President’s decision will be to the matters, such as the imposition of a Reserve Banks to establish safeguards to Governor who serves as chairman of the prompt corrective action directive or a protect institutions that file appeals appropriate oversight committee, who cease and desist order, for which an from retaliation. While the Board will consult with that division’s alternative, independent right of appeal believes that this provides sufficient director. exists. protection and meets the requirements (4) Need for Additional Timeframes As noted in the proposed guidelines, of section 309, the Ombudsman is the Board continues to believe that available to address such concerns and The proposed guidelines required questions about or objections to may be contacted by institutions who institutions to file an appeal within 30 supervisory determinations made believe they may have suffered days of the material supervisory during the course of an inspection or retaliation as a result of an appeal. The determination and the review panel to examination are most effectively role of this official and his/her decide the appeal within 30 days of its handled through the longstanding procedures for addressing these receipt. The proposed guidelines also Federal Reserve practice of resolving concerns will be outlined in the Board’s required Reserve Bank Presidents to any problems informally during the Policy Statement for the Ombudsman. make a decision on any matter appealed course of the inspection or examination to them within 30 days of receipt. process. (2) Independence of Review Panel Several comments noted that the Public Comments Six comments suggested proposed guidelines did not contain modifications to the part of the timeframes for other actions, such as the The Board received 27 comments on guidelines that addressed the time in which an appeal should be filed its proposed guidelines from Federal independence of the review panel. with a Reserve Bank President or the Reserve Banks, financial institutions, Several stated that the appeals process Board, or the time in which the Board trade associations, law firms and a cannot be independent so long as it would make a decision on an appeal. consulting firm. While the comments remains an internal procedure and The Board agrees with these were generally supportive of the suggested that outside parties, such as a comments on the need for additional proposed guidelines, most comments peer review panel or a panel appointed timeframes. Consequently, the final submitted suggested changes or raised by the Federal Financial Institutions guidelines require that an appeal to a concerns regarding the implementation Examination Council, hear and decide Reserve Bank President or the Board to of the internal appeals process. These all appeals. Another comment suggested be filed within 30 days of receipt of an proposed changes and concerns, which that the review panel exclude not only adverse decision by the review panel or persons who participated in, or who the Reserve Bank President, 1 The final guidelines have been modified to state explicitly that third party EDP servicers subject to directly or indirectly report to the respectively. The final guidelines also examination by the Federal Reserve may appeal any person(s) who participated in, the require that the Board decide any appeal material supervisory determination. material supervisory determination within 60 days of its receipt. 16472 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices (5) Procedural Issues each step of the appeals process; promptly provide a copy of the appeal Several comments suggested that the therefore, the final guidelines still to the appropriate division director of Board’s guidelines include some require board approval for each step in the staff of the Board of Governors. additional procedures in order to ensure the appeals process. On the other hand, (2) Any appeal shall contain all the that the internal appeal process works the final guidelines have been modified facts and arguments that the institution smoothly. One comment suggested that to allow the senior management wishes to present. The appeal may be the guidelines explicitly provide that person(s) with authority for U.S. rejected for lack of clarity or the material supervisory determination operations of a foreign bank to approve information. In such case, the remain in effect while it is under appeals; however, he or she must institution may refile the appeal within appeal, while another comment approve each step of the appeal. 30 calendar days of receipt of written The Board has decided to adopt suggested that the determination be notice of the rejection of any filing. several other procedural suggestions. stayed pending the completion of the (3) The appeal shall be considered in The final guidelines provide that any appeal. The Board believes that it is the first instance by a person or persons appeal filed must contain all of the facts appropriate for the determination to selected by the Reserve Bank (the and arguments that the institution review panel) who—— remain in effect while it is under would like to present to the review appeal, and the final guidelines have (A) did not participate in the material panel, the Reserve Bank President or the supervisory determination; been modified to state this explicitly. Board, as the case may be, and that the The Board does not believe that section (B) do not directly or indirectly report review panel, the Reserve Bank to the person who made the material 309 of the Act is intended to stay the President or the Board may reject the Board’s supervisory decisions, but supervisory determination under appeal for lack of clarity or information. review; and rather is designed to provide In such a case, an institution would institutions with a procedure by which (C) are qualified to review the have 30 days in which to refile a material supervisory determination. to voice objections to supervisory rejected appeal. Last, the final (4) The appellant institution may determinations for which no other guidelines make explicit that the appear before the review panel in order formal appeals procedures exist. internal appeals process does not give to present testimony and, with the Another comment suggested that the appealing institutions any discovery consent of the review panel, witnesses. institutions that consent to the issuance or other similar rights. of a formal enforcement action, such as The review panel shall also solicit the a cease and desist order, be allowed to Guidelines for Appeals of Material views of the Reserve Bank staff involved use the internal appeals process to Supervisory Determinations in the determination under appeal, challenge the material supervisory Section 309 of the Riegle Community Board staff, and, where appropriate, the determinations that led to the Development and Regulatory staff of other supervisory agencies (for enforcement action. This suggestion Improvement Act of 1994, 12 U.S.C. example, in case of joint examinations seems inconsistent with the intent of 4806, requires the Board and the other or inspections). Nothing in this appeals section 309 of the Act, which is to Federal banking agencies to establish an process shall create any discovery or provide an avenue for the review of independent, intra-agency process to other such rights. material supervisory determinations and review appeals of material supervisory (5) Any appeal shall be decided, in not to contest enforcement actions for determinations. writing, by the review panel within 30 which an alterative appeals mechanism The purpose of these guidelines is to calendar days of the filing of an exists. Therefore, the Board has not allow each Reserve Bank to administer informationally complete appeal, unless adopted this suggestion. Another its own appellate process, but to the appellant and the review panel comment suggested that the record be establish procedures under which all jointly agree to extend the time for expunged of any material supervisory Reserve Banks’ appellate process must decision. decisions that have been modified or operate. Doing so will ensure that each (6) Any appellant institution overturned on appeal. The Board Reserve Bank’s process is consistent dissatisfied with the decision of the believes that it is appropriate to with section 309 and that institutions review panel may, with the consent of maintain all records of its supervisory will be granted the same appellant its board of directors of the institution, actions, including those relating to a rights regardless of the Federal Reserve or in the case of a U.S. agency or branch decision that is modified or overturned district in which they reside. of a foreign bank, the senior as a result of an internal appeal. Procedures for Appealing a Material management person(s) responsible for Nonetheless, the Reserve Banks are Supervisory Determination. Any appeal the bank’s U.S. operations, appeal that expected to maintain complete records of a material supervisory determination decision to the Reserve Bank President of any appeal, including updating all pursuant to section 309 shall be filed by filing a written appeal with the files, both hard copy and electronic, to and considered pursuant to the Secretary of the Reserve Bank or other reflect the results of all appeals. following procedures. appropriate Reserve Bank official within One comment suggested that the (1) Any appeal shall be approved by 30 calendar days of receipt of the review board of directors of an institution only the board of directors of the institution, panel’s written decision. The appeal be required to approve the initiation of or in the case of a U.S. agency or branch shall contain all facts and arguments an appeal, but that management be of a foreign bank, the senior that the institution wishes to be allowed to decide on any subsequent management person(s) responsible for considered. The appeal may be rejected appeals to a Reserve Bank President or the bank’s U.S. operations, and filed in for lack of clarity or information. In the Board. Another comment noted that writing with the Secretary of the such case, the institution may refile the getting approval of the board of Reserve Bank or other appropriate appeal within 30 calendar days of directors of a foreign bank would be Reserve Bank official within 30 calendar receipt of written notice of the rejection. extremely difficult in order for its U.S. days of receipt of the written material The appeal shall be decided by the agency or branch to file timely appeals. supervisory determination, unless the Reserve Bank President, in writing, The Board continues to believe that the time for filing is extended by the within 30 calendar days of the filing of board of directors should be involved in Reserve Bank. The Reserve Bank shall an informationally complete appeal. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16473 (7) Any appellant institution The term ‘‘material supervisory Consolidated Financial Statements for dissatisfied with the decision of the determination’’ includes, but is not Bank Holding Companies (FR Y-9C; Reserve Bank President may, with the limited to, material determinations OMB No. 7100-0128); the extension, consent of its board of directors of the relating to examination or inspection with revision, of the Quarterly Financial institution, or in the case of a U.S. composite ratings, the adequacy of loan Statements of Nonbanking Subsidiaries agency or branch of a foreign bank, the loss reserves and significant loan of Bank Holding Companies (FR Y-11Q; senior management person(s) classifications. The term does not OMB No. 7100-0244) and the Annual responsible for the bank’s U.S. include any supervisory determination Financial Statements of Nonbanking operations, appeal that decision to the for which an independent right of Subsidiaries of Bank Holding appropriate Governor by filing a written appeal exists. Such actions include Companies (FR Y-11I; OMB No. 7100- appeal with the Secretary of the Board prompt corrective action directives 0244); and the elimination of the within 30 calendar days of receipt of the issued pursuant to section 38 of the Combined Financial Statements of Reserve Bank President’s written Federal Deposit Insurance Act, as Nonbank Subsidiaries of Bank Holding decision. The appeal may be rejected for amended (the FDI Act), actions to Companies, by Type of Nonbank lack of clarity or information. In such impose administrative enforcement Subsidiary (FR Y-11AS; OMB No. 7100- case, the institution may refile the actions under the FDI Act and the Bank 0244). appeal within 30 calendar days of Holding Company Act of 1956, as The proposal was granted initial receipt of written notice of the rejection. amended (the BHC Act), capital approval by the Board on December 16, The appeal shall be decided, in writing, directives, and orders issued pursuant 1994. Subsequently, the proposal was by the appropriate Governor, who shall to applications under the BHC Act. published in the Federal Register with consult with the director of the Effect of Appeal on Material a thirty day public comment period that appropriate division of the Board of Supervisory Determinations. A material expired on January 26, 1995. Comment Governors, within 60 calendar days of supervisory determination shall remain letters on the proposal were received the filing of an informationally complete in effect while under appeal and until from four bank holding companies. In appeal. such time it is modified or overturned general, the comment letters on the Safeguards Against Retaliation. Each through the appeals process. The appeal proposal were supportive of the changes Reserve Bank shall establish appropriate of a material supervisory determination to the various reports. However, some safeguards to protect appellants from does not prevent the Federal Reserve specific comments were not supportive. retaliation. The Board’s Ombudsman from taking any supervisory or These comments noted the increase in will periodically contact institutions enforcement action—formal or burden from some aspects of the after their appeals have been decided in informal—it deems appropriate to proposal and suggested modifications to order to make certain that no retaliation discharge the Federal Reserve’s the proposed revisions. The specific has occurred. In addition, institutions supervisory responsibilities. comments on the proposed revisions to who believe they have suffered Savings Provision. Section 309 the reports are addressed in the discussion of each individual report retaliation as the result of an appeal may expressly provides that it shall not affect following later in this notice. After contact the Board’s Ombudsman. the authority of the Board or any other reviewing the comments, the Board has Availability of Procedures. Each agency to take enforcement or approved the proposed changes as Reserve Bank shall make these supervisory action against an originally issued for comment. In guidelines and the Reserve Bank’s institution. In such cases, the rights of appeal provided for in the statutes and addition to those changes, the Board process for selecting a review panel also has approved two further changes available to each institution in its regulations concerning these actions shall govern. to the FR Y-9C—the elimination of two district, any institution appealing a line items from Schedule HC-F. material supervisory determination, and By order of the Board of Governors of the The reporting changes, summarized in any member of the public who requests Federal Reserve System, March 24, 1995. this notice, will be effective for the FR them. Jennifer J. Johnson, Y-9C and the FR Y-11Q with the March Eligible Institutions. Any institution Deputy Secretary of the Board. 31, 1995 reporting date and effective for about which the Federal Reserve makes [FR Doc. 95–7795 Filed 3–29–95; 8:45 am] the FR Y-11I and the FR Y-11AS for the a material supervisory determination is BILLING CODE 6210±01±P December 31, 1995 reporting date. The eligible for the appeal process. This FR Y-9C and the FR Y-11Q reports includes state member banks, bank effective for March 31, 1995 reporting holding companies and their nonbank Agency Forms Under Review; Bank date are due to be filed May 15, 1995 subsidiaries, U.S. agencies and branches Holding Company Reporting and May 30, 1995, respectively. of foreign banks, Edge and agreement Requirements BACKGROUND: Under the Bank Holding corporations, third party EDP servicers, AGENCY: Board of Governors of the Company Act of 1956, as amended, the and other entities examined or Federal Reserve System Board is responsible for the supervision inspected by a Reserve Bank. ACTION: Final Board approval of and regulation of all bank holding Material Supervisory Determination revisions to bank holding company companies. The FR Y-9 and FR Y-11 Defined. Whether an appealed action reporting requirements. series of reports historically have been, constitutes a ‘‘material supervisory and continue to be, the primary source determination’’ eligible for the appeals SUMMARY: Notice is hereby given of the of financial information on bank process shall be decided by the person final approval of proposed information holding companies and their or persons hearing the appeal, and a collections by the Board of Governors of nonbanking activities between on-site determination that the action is not the Federal Reserve System (Board) inspections. Financial information, as appealable under these guidelines may under OMB delegated authority, as per well as ratios developed from the Y be further appealed to the Reserve Bank 5 C.F.R. 1320.9 (OMB Regulations on series reports, are used to detect President or the appropriate oversight Controlling Paperwork Burdens on the emerging financial problems, to review Governor in the same manner as any Public). The Board has given final performance for pre-inspection analysis, other adverse decision. approval to the revision of the to evaluate bank holding company 16474 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices mergers and acquisitions, and to analyze sensitivity, average balances, off-balance reports are due forty-five days after a holding company’s overall financial sheet activities, past due loans, and loan March 31, 1995. condition and performance as part of charge-offs and recoveries. Following the review of the public the Federal Reserve System’s overall The Board has approved the revisions comments, the revisions to the FR Y-9C analytical effort. to the FR Y-9C following public approved by the Board include: FOR FURTHER INFORMATION CONTACT: comment. Most of the new items are Schedule HC-A, Securities: Federal Reserve Board Clearance required to maintain consistency with (1) Memoranda items to collect the Officer—Mary M. McLaughlin— comparable items recently incorporated amortized cost and fair (market) value of Division of Research and Statistics, into the commercial bank Reports of high-risk mortgage securities and Board of Governors of the Federal Condition and Income (Call Report) by structured notes have been added. Reserve System, Washington, D.C. the Federal Financial Institutions (2) The reporting instructions for the 20551 (202-452-3829) Examination Council (FFIEC). OMB Desk Officer—Milo Sunderhauf— category labeled ‘‘mortgage-backed Public Comments: Three bank holding securities’’ have been revised to ensure Office of Information and Regulatory companies addressed the revisions to Affairs, Office of Management and that all such securities are reported. In the FR Y-9C. As previously discussed, addition, the line items for Budget, New Executive Office the proposed changes to this report keep Building, Room 3208, Washington, collateralized mortgage obligations the reporting requirements consistent (CMOs) and real estate mortgage D.C. 20503 (202-395-7340) with those changes being incorporated Final approval under OMB delegated investment conduits (REMICs) issued by in the ‘‘Call Report’’ to be filed by the Federal National Mortgage authority of the revision of the following commercial banks as of March 31, 1995. report: Association (FNMA) and the Federal In the past, bank holding companies Home Loan Mortgage Corporation 1. Report title: Consolidated Financial have commented that reporting burden Statements for Bank Holding (FHLMC) have been modified to is minimized by keeping the changes in explicitly include REMICs issued by Companies. the Call Report and the FR Y-9C Agency form number: FR Y-9C. Government National Mortgage consistent and by implementing the Association (GNMA). OMB Docket number: 7100-0128. changes as of the same date. Frequency: Quarterly. Schedule HC-F, Off-Balance Sheet Reporters: Bank Holding Companies. In their comment letters, two bank Items: holding companies supported the Annual reporting hours: 172,720. Part 2 of this schedule has been proposed changes to the report. Another Estimated average hours per response: revised to collect additional information bank holding company commented that Range from 5 to 1,250 hours. on derivative instruments, including the proposal expanded the information Number of respondents: 1,346. breakdowns of notional contract collected and increased the reporting Small businesses are affected. amounts by instrument type, by risk burden and recommended generally that General description of report: This exposure underlying the contract, and the Board eliminate all requirements not information collection is mandatory (12 by whether the contract is traded on the essential for the performance of the U.S.C. 1844(b) and (c)). Confidential exchange or over the counter. In Board’s supervisory responsibilities. treatment is not routinely given to the addition, the total notional amount and Specifically, the company data in these reports. However, gross positive and gross negative fair recommended that the Board eliminate confidential treatment for the reporting values of contracts held for trading the proposed requirement for bank information, in whole or in part, can be purposes and for purposes other than holding companies to report gross requested in accordance with the trading have been included on the redemptions of mutual funds and instructions to the form. schedule. The Board’s Legal Division has also annuities. This item is one of several Schedule HI, Income Statement: determined that on the FR Y-9C, items relating to the sale of mutual Schedule HC-H, Column A, requiring funds by banking organizations added to Memoranda items have been included information on ‘‘assets past due 30 the report. The Call Report collects to collect trading revenue that reflects through 89 days and still accruing’’ and some data, but does not collect the the combined revenues from cash and memoranda item 2 are confidential amount of redemptions. The Board derivative instruments, with a pursuant to Section (b)(8) of the believes that reporting the amount of breakdown by underlying risk exposure, Freedom of Information Act (5 U.S.C. redemptions, in addition to the amount and information on the effect on 552(b)(8)). of sales, is essential to measure the flow earnings of derivatives held for Abstract: The FR Y-9C consolidated of funds into these new products and, purposes other than trading. financial statements are currently filed accordingly, has approved the collection Schedules HC-I and HC-J, Risk-Based by top-tier bank holding companies of these data. The measurement of the Capital: with total consolidated assets of $150 flow of funds is important in assessing (1) An item has been included to million or more and by lower-tier bank the growth of these products. The Board collect the net credit exposure of all holding companies that have total also plans to propose to the FFIEC that derivative contracts taking into consolidated assets of $1 billion or these data be collected on the Call consideration netting arrangements more. In addition, all multibank bank Report. permissible under the risk-based capital holding companies with debt The commenter also recommended standards. outstanding to the general public or that the Board delay implementation of (2) The risk-based capital ‘‘notional engaged in certain nonbank activities, the changes until June 30, 1995. The principal value, maturity and regardless of size, must file the FR Y-9C. Board believes that the burden on the replacement cost matrix’’ for derivatives The report includes a balance sheet, majority of companies is lessened by has been expanded to include an income statement, and statement of making the changes to the FR Y-9C at additional remaining maturity time changes in equity capital with the same time as the changes are band and four additional categories of supporting schedules providing implemented in the Call Report and has derivative contracts (gold, other information on securities, loans, risk- approved the changes for the FR Y-9C precious metals, other commodity and based capital, deposits, interest as of the March 31, 1995, report. The equity contracts). Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16475 Schedule HI-B, Charge-offs and U.S.C. 1844(b) and (c) and 12 CFR the deletion of the free-form nonbank Recoveries and Changes in Allowance 225.5(b). Confidential treatment is not financial data in the FR Y-6 on February for Loan and Lease Losses: routinely given to the data in these 7, 1995 (60 FR 12215). The Board also The reconciliation of the allocated reports. However, confidential treatment proposed to delete the requirement to transfer risk reserve on Memoranda, Part for the reporting information, in whole submit the FR Y-11AS, and all 2, Column B has been deleted. or in part, can be requested in commenters favored the deletion of this Schedule Of Trading Account Assets accordance with the instructions to the report. Thus, the Board has eliminated and Liabilities: form. the requirement for certain bank holding A schedule for the reporting of trading Abstract: The Board has approved the companies to submit the FR Y-11AS. account assets and liabilities in a revision of the FR Y-11Q. As approved, Public Comments: Comments on the manner consistent with the schedule the FR Y-11Q will: proposed revisions to the reports included in the Call Report has been (1) Expand the report to collect more collecting data from nonbank added to the report. This schedule is to detailed financial information, subsidiaries were received from four be completed by bank holding comparable to items collected on the FR bank holding companies. In addition to companies with total consolidated Y-9C and those commenting on the FR Y-9C, one assets of $1 billion or more, or with $2 (2) Revise the reporting criteria for commenter only commented on the FR billion or more in par/notional amounts bank holding companies with assets of Y-11 series. This commenter supported of interest rate, foreign exchange rate $150 million or more to collect the proposed revisions and stated that and other commodity and equity information on an individual basis from under the revised report that they would contracts. each nonbank subsidiary viewed as only have to file a report for one Mutual Funds and Annuities having a significant effect on the subsidiary on a quarterly basis rather Information: condition of the bank holding company. than providing quarterly data on all Line items to collect quarterly gross The revised comprehensive financial subsidiaries on a combined basis. sales of mutual funds (by type of fund) statements include a balance sheet, off- Another commenter welcomed the and annuities, including sales of balance sheet items, a memoranda deletion of certain nonbanking data, but proprietary mutual funds and annuities, section, an income statement, and a stated their opposition to the increased and the fee income generated from the statement of changes in equity capital. burden of the FR Y-11Q. sale and servicing of mutual funds and All bank holding companies with total A third commenter proposed annuities in domestic offices have been consolidated assets of $150 million or increasing the materiality test for added to the report. In addition, a line more would file a report for each completing the FR Y-11Q and suggested item to collect the total amount of gross individual nonbank subsidiary with several options. These include: nonbank redemptions of mutual funds and total assets equal to 5 percent or more assets as a percentage of total annuities during the quarter has been of the bank holding company’s consolidated assets; investment in included. consolidated Tier 1 capital, or where the nonbank subsidiaries as a percentage of Deletion of Line Items: subsidiary’s total operating revenue Tier 1 capital; or increasing the test of In addition to the above changes that equals 5 percent or more of the bank nonbank assets as a percent of Tier 1 were addressed in the Federal Register holding company’s consolidated total capital. The materiality test proposed notice (59 FR 66540), the Board also has operating revenue. and adopted by the Board is based on approved two further changes to the FR Under the prior reporting the criteria utilized by Federal Reserve Y-9C—the elimination of two line items requirements, the Board collected free- examination staff in determining those from Schedule HC-F. These two items form financial data from each nonbank nonbanking subsidiaries subject to on- are: Memorandum item 1, ‘‘Mortgages subsidiary on the FR Y-6, Annual site examinations. In general, this sold with recourse that incur no capital Report of Bank Holding Companies. In materiality test is used to define those charge,’’ and Memorandum item 2, addition, nonbank subsidiary data were material nonbanking subsidiaries that ‘‘Mortgages sold with recourse prior to collected on three automated forms. can have a significant impact on the October 12, 1990.’’ The Board noted that Large bank holding companies with financial condition of the bank holding one item is no longer needed following significant nonbanking assets submitted company. the revisions to the Capital Guidelines the FR Y-11Q and the FR Y-11AS. The The fourth commenter agreed that a required by the Riegle Community prior FR Y-11Q was submitted quarterly revision of the information reported by Development and Regulatory and collected data from all nonbank nonbank subsidiaries is warranted, but Improvement Act of 1994, and the subsidiaries on a combined basis. The suggested that the reporting format second item related to recourse is also FR Y-11AS was submitted annually and follow that of the FR 2314, Report of no longer necessary. collected nonbank data on a combined Condition of Foreign Subsidiaries. Final approval under OMB delegated basis by the principal line of business of However, since the proposed format of authority of the extension, with the nonbank subsidiaries. The third the FR Y-11Q and FR Y-11I is consistent revision, of the following reports: form, FR Y-11I, collected selected with the format of other bank holding 1. Report title: Quarterly Financial financial data from all bank holding company reports and the Call Report Statements of Nonbanking Subsidiaries companies on each of their nonbank filed by commercial banks, the Board of Bank Holding Companies subsidiaries on an annual basis. Under approved the format as proposed. The Agency form number: FR Y-11Q. the proposal issued for public comment Board believes that conforming the OMB Docket number: 7100-0244. and now given final approval by the format to that of the Call Report and the Frequency: Quarterly. Reporters: Bank Holding Companies. Board, the Board eliminated the other holding company reports should Annual reporting hours: 6,696. collection of free-form nonbank reduce the burden on most bank holding Estimated average hours per response: financial data in the FR Y-6, Annual companies. The commenter also Range from 3.0 to 8.0 hours. Report of Bank Holding Companies, to recommended that the criteria for Number of respondents: 270. offset the increase in the burden of the determining material nonbank Small businesses are affected. collection of automated data on the subsidiaries exclude intercompany General description of report: This revised FR Y-11Q and the revised FR Y- transactions. The Board believes that information collection is mandatory (12 11I. The Board gave final approval to intercompany transactions should be 16476 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices included as these nonbank subsidiaries in credit extending activities. The By order of the Board of Governors of the serve as funding vehicles for other public comments are discussed under Federal Reserve System, March 24, 1995. credit extending nonbank subsidiaries the FR Y-11Q report. Jennifer J. Johnson, and pose liquidity risks to the bank Final approval under OMB delegated Deputy Secretary of the Board. holding company. Finally, the authority of the elimination of the [FR Doc. 95–7796 Filed 3–29–95; 8:45AM] commenter recommended that the following report: Billing Code 6210±01±F proposed FR Y-11I be further 1. Report title: Combined Financial summarized. The revised format is Statements of Nonbank Subsidiaries of composed of significant asset and Holding Companies, by Type of First Community Corporation, et al.; liability accounts. Additional schedules Nonbank Subsidiary. Formations of; Acquisitions by; and are required to be completed only if the Agency form number: FR Y-11AS. Mergers of Bank Holding Companies nonbank subsidiary is engaged in OMB Docket number: 7100-0244. The companies listed in this notice extensions of credit. The Board believes Frequency: Annual. have applied for the Board’s approval that the revised report represents the Reporters: Bank Holding Companies. minimum information that should be under section 3 of the Bank Holding Annual reporting hours: 1,680. Company Act (12 U.S.C. 1842) and § collected from nonbank subsidiaries to Estimated average hours per response: evaluate their financial position and to 225.14 of the Board’s Regulation Y (12 Range from 1.0 to 17.0 hours. CFR 225.14) to become a bank holding monitor their potential impact on the Number of respondents: 271. bank holding company. company or to acquire a bank or bank Small businesses are affected. holding company. The factors that are 2.Report title: Annual Financial General description of report: This Statements for Nonbanking considered in acting on the applications information collection is mandatory (12 are set forth in section 3(c) of the Act Subsidiaries. U.S.C. 1844(b) and (c) and 12 CFR Agency form number: FR Y-11I. (12 U.S.C. 1842(c)). 225.5(b). Confidential treatment is not Each application is available for OMB Docket number: 7100-0244. routinely given to the data in these Frequency: Annual. immediate inspection at the Federal reports. However, confidential treatment Reporters: Bank Holding Companies. Reserve Bank indicated. Once the Annual reporting hours: 13,216. for the reporting information, in whole application has been accepted for Estimated average hours per response: or in part, can be requested in processing, it will also be available for Range from 0.4 to 8.0 hours. accordance with the instructions to the inspection at the offices of the Board of Number of respondents: 4130. form. Governors. Interested persons may Small businesses are affected. Abstract: The FR Y-11AS was filed by express their views in writing to the General description of report: This all bank holding companies meeting the Reserve Bank or to the offices of the information collection is mandatory (12 prior reporting criteria for the FR Y-11Q. Board of Governors. Any comment on U.S.C. 1844(b) and (c)) and 12 CFR The report collected the same report an application that requests a hearing 225.5(b). Confidential treatment is not items as the FR Y-11Q by type of must include a statement of why a routinely given to the data in these nonbank activity and consists of a written presentation would not suffice reports. However, confidential treatment balance sheet, income statement, and a in lieu of a hearing, identifying for the reporting information, in whole memoranda section. The Board has specifically any questions of fact that or in part, can be requested in eliminated this reporting requirement, are in dispute and summarizing the accordance with the instructions to the and all commenters supported this evidence that would be presented at a form. action. hearing. Abstract and Public Comments: The REGULATORY FLEXIBILITY ACT Unless otherwise noted, comments prior FR Y-11I report was filed by a top- ANALYSIS regarding each of these applications tier bank holding company for each of must be received not later than April 24, its nonbank subsidiaries, whether The Board certifies that the above 1995. directly or indirectly owned. Combined bank holding company reporting A. Federal Reserve Bank of and consolidated reporting was requirements are not expected to have a Richmond (Lloyd W. Bostian, Jr., Senior permitted in some instances. The report significant economic impact on small Vice President) 701 East Byrd Street, consisted of ten summary financial entities within the meaning of the Richmond, Virginia 23261: items and two items providing Regulatory Flexibility Act (5 U.S.C. 601 1. First Community Corporation, consolidation information. et seq.). The reporting requirements for Columbia, South Carolina; to become a The Federal Reserve has approved the the small companies require bank holding company by acquiring 100 following revisions to the FR Y-11I: significantly fewer items of data to be percent of the voting shares of First (1) Expand the report to collect more submitted than the amount of Community Bank, N.A., Lexington, detailed financial information, information required of large bank South Carolina (in organization). comparable to items proposed for the FR holding companies. B. Federal Reserve Bank of Chicago Y-11Q but with certain detail reported The information that is collected on (James A. Bluemle, Vice President) 230 only as summary items and the reports is essential for the detection South LaSalle Street, Chicago, Illinois (2) Revise the reporting criteria to of emerging financial problems, the 60690: collect information on an individual assessment of a holding company’s 1. Suburban Illinois Bancorp, Inc., basis annually from each nonbank financial condition and capital Elmhurst, Illinois; to become a bank subsidiary not required to file the adequacy, the performance of pre- holding company by acquiring 100 proposed FR Y-11Q. The revised inspection reviews, and the evaluation percent of the voting shares of Suburban financial statements will include a of expansion activities through mergers Bank of Elmhurst, Elmhurst, Illinois. balance sheet, income statement, off- and acquisitions. The imposition of the C. Federal Reserve Bank of St. Louis balance sheet, and a statement on reporting requirements is essential for (Randall C. Sumner, Vice President) 411 changes in equity capital. The FR Y-11I the Board’s supervision of bank holding Locust Street, St. Louis, Missouri 63166: will also include a loan schedule to be companies under the Bank Holding 1. Mountain View Bancshares, Inc., submitted only by respondents engaged Company Act. Mountain View, Arkansas; to become a Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16477 bank holding company by acquiring at subsidiary Helena National Leasing extensively with relevant constituencies least 80 percent of the voting shares of Company, Inc., Memphis, Tennessee, in of the scientific community—including Bank of Mountain View, Mountain leasing tangible personal property, junior and senior scientists, witnesses, View, Arkansas. consisting primarily of business respondents, academic administrators, Board of Governors of the Federal Reserve machines, pursuant to § 225.25(b)(15) of as well as students—to understand their System, March 24, 1995. the Board’s Regulation Y. particular experiences and views and to Jennifer J. Johnson, Board of Governors of the Federal Reserve explore possible improvements. Four major areas are currently of great Deputy Secretary of the Board. System, March 24, 1995. Jennifer J. Johnson, interest to the Commission: [FR Doc. 95–7797 Filed 3–29–95; 8:45 am] 1. A New Definition of Research Deputy Secretary of the Board. BILLING CODE 6210±01±F Misconduct. The Commission believes [FR Doc. 95–7798 Filed 3–29–95; 8:45 am] that any definition needs to address the BILLING CODE 6210±01±F full extent of serious research Helena Bancshares, Inc.; Notice of misconduct, but must avoid a definition Application to Engage de novo in that is too broad, vague, and potentially Permissible Nonbanking Activities DEPARTMENT OF HEALTH AND unfair. In addition, a two-tiered The company listed in this notice has HUMAN SERVICES approach for research integrity, or filed an application under § 225.23(a)(1) failures thereof, would be useful; it Office of the Secretary of the Board’s Regulation Y (12 CFR would emphasize institutional 225.23(a)(1)) for the Board’s approval Notice of a Regional Public Hearings of responsibility, and reserve an oversight under section 4(c)(8) of the Bank the Commission on Research Integrity role for the Federal Government. Holding Company Act (12 U.S.C. 2. Assurance for Institutions and 1843(c)(8)) and § 225.21(a) of Regulation Pursuant to Pub. L. 92–463, notice is Accountability for Federally Funded Y (12 CFR 225.21(a)) to commence or to hereby given of two regional public Research. The Commission is engage de novo, either directly or hearings and meetings of the considering that each institution through a subsidiary, in a nonbanking Commission on Research Integrity. All receiving Federal funds develop and activity that is listed in § 225.25 of proceedings are open to the public. submit for Federal review and approval Regulation Y as closely related to The first meeting will be on Monday assurances concerning the banking and permissible for bank and Tuesday, April 10 and 11, 1995, at establishment and implementation of: holding companies. Unless otherwise the Countway Library Auditorium, (a) Good research practices and noted, such activities will be conducted Harvard Medical Center, 25 Shattuck professional norms; (b) procedures for throughout the United States. Street, Boston, MA. The Commission disseminating that information The application is available for will meet from 8:30 a.m. until 5:00 p.m. throughout its community; and (c) immediate inspection at the Federal on the first day to listen to testimony, educational activities designed to foster Reserve Bank indicated. Once the and from 9:00 a.m. until 5:00 p.m. on practice of the highest ethical standards application has been accepted for the second day to deliberate in the conduct of research for all processing, it will also be available for Commission issues. researchers. Topics affecting good inspection at the offices of the Board of The second meeting will be on research practices that might be Governors. Interested persons may Thursday and Friday, May 4 and 5, addressed in institutional assurances express their views in writing on the 1995, at the University of Alabama, the include: data recording and retention; question whether consummation of the Great Hall and Alumni Auditorium supervisory responsibility; authorship proposal can ‘‘reasonably be expected to respectively, Hill University Center, practices; protection of witnesses; and produce benefits to the public, such as 1400 University Boulevard, other professional conduct bearing greater convenience, increased Birmingham, AL. The Commission will directly on the integrity of Federally competition, or gains in efficiency, that meet from 8:30 a.m. until 5:00 p.m. on supported research. outweigh possible adverse effects, such the first day to deliberate Commission 3. Bill of Rights for Witnesses. as undue concentration of resources, issues, and from 9:00 a.m. until 4:45 Testimony from witnesses (also called decreased or unfair competition, p.m. on the second day to listen to ‘‘whistleblowers’’) who have challenged conflicts of interests, or unsound testimony. perceived research misconduct reaffirms banking practices.’’ Any request for a Interested parties are advised to call the Commission’s mandate to propose hearing on this question must be the Executive Secretary shortly before effective whistleblower protection. accompanied by a statement of the the meeting to verify the date, place, Witnesses have stated that retaliation reasons a written presentation would and agenda. occurs with sufficient frequency and not suffice in lieu of a hearing, The mandate of the Commission is to impact to have a chilling effect on identifying specifically any questions of develop recommendations for the potential witnesses throughout the fact that are in dispute, summarizing the Secretary of Health and Human Services research community. The Commission evidence that would be presented at a (DHHS) and the Congress on the is considering a Witness Bill of Rights. hearing, and indicating how the party administration of Section 493 of the 4. Codes of Ethics. Professional commenting would be aggrieved by Public Health Service Act, as amended organizations have a unique role in the approval of the proposal. by and added to by Section 161 of the preservation of scientific integrity. The Comments regarding the application NIH Revitalization Act of 1993. Commission endorses their existence, must be received at the Reserve Bank In its deliberations, the Commission their continual use in teaching and indicated or the offices of the Board of has confirmed that there are no quick standard checking, and their ongoing Governors not later than April 13, 1995. and easy answers for fair, effective, and development to keep pace with the A. Federal Reserve Bank of St. Louis realistic administrative solutions to a ethical issues of the times. The (Randall C. Sumner, Vice President) 411 number of issues in research integrity Commission is considering that, to Locust Street, St. Louis, Missouri 63166: and scientific misconduct. An essential reinforce and augment the influence of 1. Helena Bancshares, Inc., Helena, component of the Commission’s normative professional standards, Arkansas; to engage de novo through its information-gathering is to interact professional organizations should 16478 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices become more active in defining, published announcing the availability of publication of the final target of 275 promulgating, and promoting the list. substances, was published in 1991 (56 compliance with these standards. DATES: Comments concerning this FR 52166). The list of 275 has been The Commission will also continue notice must be received by May 1, 1995. reviewed annually, in 1992 (57 FR discussion of other issues on which the ADDRESSES: Comments on this notice 48801) and 1993 (59 FR 9486), as called Commission may make should bear the docket control number for by the legislation. recommendations in its final report. ATSDR–91 and should be sent to the The 1991 revision of the algorithm The Commission invites oral or attention of Dr. Jim Holler, Emergency represented a significant advance in the written statements from interested Response and Scientific Assessment prioritization methodology. This listing parties. Lengthy statements exceeding Branch, Division of Toxicology, Agency now uses information from ATSDR’s 10 or 15 minutes of oral presentation for Toxic Substances and Disease Hazardous Substance Release/Health should be submitted in writing or via Registry, 1600 Clifton Road, NE., Effects Database (HazDat), an active internet to the Executive Secretary Mailstop E–29, Atlanta, Georgia 30333. database of contaminants at NPL sites, before the meeting. Written statements Comments on this notice will be as found in ATSDR’s public health will be reviewed by Commission available for public inspection at the assessments. While the algorithm’s use Members. Agency for Toxic Substances and of current data keeps its conclusions Henrietta D. Hyatt-Knorr, Executive Disease Registry, Building 4, Executive contemporary, experience has shown Secretary, Commission on Research Park Drive, Atlanta, Georgia (not a that with this new approach, the Integrity, at Rockwall II, Suite 700, 5515 mailing address), from 8 a.m. until 4:30 Priority List has not changed Security Lane, Rockville MD 20852; p.m., Monday through Friday, except for substantially from year to year, (301) 443–5300 (phone); (301) 443–5351 legal holidays. Because all public particularly for high-priority substances. (fax); and [email protected] comments are available for public ATSDR believes that this stability (internet) will furnish a preliminary inspection, no confidential business reflects that the listing activity has fully report of the Commission including the information should be submitted in developed. However, the amount of staff Committee charter and roster of the response to this notice. time needed to generate and publish the Committee members, and/or a meeting FOR FURTHER INFORMATION CONTACT: The Priority List each year is not agenda upon request. Individuals Emergency Response and Scientific insignificant; substantial resources are wishing to make presentations should Assessment Branch, Division of still required for quality assurance and contact the Executive Secretary. Toxicology, Agency for Toxic preparation and dissemination of Depending on the number of Substances and Disease Registry, 1600 results. ATSDR would like to shift some presentations and other considerations, Clifton Road, NE., Mailstop E–29, of these resources to implement the Executive Secretary will allocate a Atlanta, Georgia 30333, telephone (404) promising new ideas to enhance the reasonable timeframe for each speaker. 639–6308. algorithm and data. Henrietta D. Hyatt-Knorr, SUPPLEMENTARY INFORMATION: The For these reasons, ATSDR and EPA Executive Secretary, Commission on Research Comprehensive Environmental would like to shift the Priority List Integrity. Response, Compensation, and Liability activity to a 2-year publication schedule [FR Doc. 95–7782 Filed 3–29–95; 8:45 am] Act of 1980 (CERCLA or Superfund), as with a yearly informal review and BILLING CODE 4160±17±P amended by the Superfund revision. The informal review and Amendments and Reauthorization Act revision would result in an interim list of 1986 (SARA), establishes certain that would not be published or Agency for Toxic Substances and announced in the Federal Register, but Disease Registry requirements for ATSDR and the Environmental Protection Agency (EPA) would be made available on request. [ATSDR±91] with regard to hazardous substances The agencies believe that the Priority most commonly found at facilities on List activity is mature enough that little Notice of Proposed Revised the CERCLA National Priorities List is lost by reducing the frequency of Publication Schedule for the Priority (NPL). Specifically, section 104(i)(2) of publication and much is gained for List of Hazardous Substances that will CERCLA, as amended by SARA (42 other activities. This schedule will be the Subject of Toxicological Profiles U.S.C. 9604(i)(2)), requires that the allow staffers to concentrate on AGENCY: Agency for Toxic Substances agencies maintain a list, in order of enhancing the quality of the algorithm and Disease Registry (ATSDR), Public priority, of the hazardous substances and its underlying data. It should also Health Service (PHS), Department of found at NPL sites posing the most allow enough time for (1) the underlying Health and Human Services (HHS). significant potential threat to human data to change sufficiently so results will be more notably affected, and (2) ACTION: Notice. health. This listing is called the ‘‘Priority List of Hazardous Substances adequate analysis, feedback, and insight SUMMARY: This notice announces a that will be the Subject of Toxicological to have occurred in order to enact more proposed change in the publication Profiles.’’ Each substance on the Priority valuable revisions with each release. schedule for the ‘‘Priority List of List is a candidate to become the subject The publicly announced list would be Hazardous Substances that will be the of a toxicological profile prepared by used to develop toxicological profiles. Subject of Toxicological Profiles.’’ ATSDR and the subsequent Placement on the priority list is one According to the proposal, the list identification of priority data needs for factor used to determine if a substance would be shifted to a 2-year publication that substance. is to be considered for profile schedule with a yearly informal review The history of the Priority List is as development in a given year. However, and revision. Therefore, the next follows: The first 100 substances were the interim list may also be reviewed to scheduled publication would be in late published in 1987 (52 FR 12866); an identify candidate substances that could 1995 when the 1995 Priority List of additional 100 in 1988 (53 FR 41280); be targeted for profile development. Hazardous Substances is made publicly 25 more in 1989 (54 FR 43619); 25 more ATSDR and EPA would retain the available from ATSDR. At that time, a in 1990 (55 FR 42067); and a revision option to re-publish the Priority List in Federal Register notice would be of the priority-list algorithm, including less than 2 years, if important new Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16479 developments, insights, or resources October 1, 1995, or by the beginning of Estimates of the median income of arise. a grantee’s fiscal year, whichever is four-person families for each state and Dated: March 24, 1995. later, LIHEAP grantees using state the District of Columbia for FY 1996 Claire V. Broome, median income estimates must adjust have been developed by the Bureau of their income eligibility criteria to be in the Census of the U.S. Department of Deputy Administrator, Agency for Toxic Substances and Disease Registry. accord with the FY 1996 state median Commerce, using the most recent income estimates. available income data. In developing the [FR Doc. 95–7785 Filed 3–29–95; 8:45 am] median income estimates for FY 1996, BILLING CODE 4163±70±P This listing of estimated state median incomes concerns maximum income the Bureau of the Census used the levels for households to which LIHEAP following three sources of data: (1) The Administration for Children and grantees may make payments under March 1994 Current Population Survey; Families LIHEAP or by the beginning of a (2) the 1990 Decennial Census of LIHEAP grantee’s fiscal year, whichever Population; and (3) 1993 per capita Office of Community Services; State is later. personal income estimates, by state, from the Bureau of Economic Analysis Median Income Estimates for Four- EFFECTIVE DATE: The estimates are of the U.S. Department of Commerce. Person Families (FY 1996); Notice of effective at any time between the date of This is the first year in which income the Fiscal Year (FY) 1996 State Median this publication and October 1, 1995, or estimates from the March Current Income Estimates for Use Under the by the beginning of a LIHEAP grantee’s Population Survey are based on Low Income Home Energy Assistance fiscal year, whichever is later. Program (LIHEAP) Administered by the population controls from the 1990 Administration for Children and FOR FURTHER INFORMATION CONTACT: Decennial Census of Population. Families, Office of Community Leon Litow, Administration for Previous income estimates from the Services, Division of Energy Children and Families, HHS, Office of March Current Population Survey had Assistance Community Services, Division of Energy been based on population controls from Assistance, 5th Floor West, 370 L’Enfant the 1980 Decennial Census of AGENCY: Administration for Children Promenade, S.W., Washington, D.C. Population. Generally, the use of 1990 and Families (ACF), DHHS. 20447, Telephone: (202) 401–5304. population controls results in somewhat ACTION: Notice of estimated state median SUPPLEMENTARY INFORMATION: Under the lower estimates of income. This has income for FY 1996. provisions of section 2603(7) of Title resulted in several states having lower state median income estimates for FY SUMMARY: This notice announces the XXVI of the Omnibus Budget estimated median income for four- Reconciliation Act of 1981 (Pub. L. 97– 1996 than for FY 1995. For further information on the person families in each state and the 35, as amended), we are announcing the estimating method and data sources, District of Columbia for FY 1996 estimated median income of a four- contact Edward Welniak, Chief of the (October 1, 1995 to September 30, 1996). person family for each state, the District Income Statistics Branch, Housing and In the past, the date for adoption of the of Columbia, and the United States for Household Economic Statistics state median income estimates has been FY 1996 (the period of October 1, 1995, Division, at the Bureau of the Census the first day of the fiscal year after their through September 30, 1996). (301–763–8576). publication. The adoption date for the Section 2605(b)(2)(B)(ii) of the A state-by-state listing of median state median income estimates now has LIHEAP statute provides that 60 percent income, and 60 percent of median been changed to be consistent with the of the median income for each state, as income, for a four-person family for FY adoption date for the poverty income annually established by the Secretary of 1996 follows. The listing describes the guidelines. Therefore, LIHEAP grantees Health and Human Services, is one of method for adjusting median income for may adopt the state median income the income criteria that LIHEAP families of different sizes as specified in estimates at any time between the date grantees can use in determining a 45 CFR 96.85(b), which was published of this publication and the first day of household’s eligibility for LIHEAP. in the Federal Register on March 3, FY 1996 at the LIHEAP grantee’s option. LIHEAP is currently authorized 1988 at 53 FR 6824. This means that LIHEAP grantees could through the end of FY 1999 by the also choose to implement this notice Human Services Amendments of 1994, Dated: March 1, 1995. during the period between the heating Public Law 103–252, which was enacted Donald Sykes, and cooling seasons. However, by on May 18, 1994. Director, Office of Community Services. ESTIMATED STATE MEDIAN INCOME FOR 4-PERSON FAMILIES, BY STATE, FISCAL YEAR 19961 60 percent Estimated of estimated State me- State me- States dian income dian income 4-person 2 4-person families families Alabama ...... $37,975 $22,785 Alaska ...... 51,181 30,709 Arizona ...... 39,679 23,807 Arkansas ...... 32,594 19,556 California ...... 44,643 26,786 Colorado ...... 47,112 28,267 Connecticut ...... 59,288 35,573 Delaware ...... 50,228 30,137 District of Col ...... 46,943 28,166 Florida ...... 40,405 24,243 16480 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices ESTIMATED STATE MEDIAN INCOME FOR 4-PERSON FAMILIES, BY STATE, FISCAL YEAR 19961ÐContinued Estimated 60 percent State me- of estimated States dian income State me- 4-person dian income 2 4-person families families Georgia ...... 44,120 26,472 Hawaii ...... 54,856 32,914 Idaho ...... 39,851 23,911 Illinois ...... 47,975 28,785 Indiana ...... 44,274 26,564 Iowa ...... 42,772 25,663 Kansas ...... 43,155 25,893 Kentucky ...... 36,291 21,775 Louisiana ...... 35,177 21,106 Maine ...... 41,513 24,908 Maryland ...... 53,717 32,230 Massachusetts ...... 55,120 33,072 Michigan ...... 46,633 27,980 Minnesota ...... 48,817 29,290 Mississippi ...... 34,001 20,401 Missouri ...... 42,162 25,297 Montana ...... 38,157 22,894 Nebraska ...... 42,262 25,357 Nevada ...... 46,137 27,682 New Hampshire ...... 49,452 29,671 New Jersey ...... 57,916 34,750 New Mexico ...... 35,560 21,336 New York ...... 47,570 28,542 North Carolina ...... 42,691 25,615 North Dakota ...... 41,084 24,650 Ohio ...... 46,116 27,670 Oklahoma ...... 35,133 21,080 Oregon ...... 42,745 25,647 Pennsylvania ...... 47,109 28,265 Rhode Island ...... 47,908 28,745 South Carolina ...... 40,163 24,098 South Dakota ...... 38,067 22,840 Tennessee ...... 38,341 23,005 Texas ...... 40,688 24,413 Utah ...... 42,630 25,578 Vermont ...... 44,184 26,510 Virginia ...... 47,732 28,639 Washington ...... 50,557 30,334 West Virginia ...... 34,189 20,513 Wisconsin ...... 46,363 27,818 Wyoming ...... 45,414 27,248 NoteÐFY 1996 covers the period of October 1, 1995 through September 30, 1996. The estimated median income for 4-person families living in the United States is $45,161 for FY 1996. The estimates are effective for the Low Income Home Energy Assistance Program (LIHEAP) at any time between the date of this publication and October 1, 1995, or by the beginning of a LIHEAP grantee's fiscal year, whichever is later. 1 In accordance with 45 CFR 96.85, each state's estimated median income for a 4-person family is multiplied by the following percentages to adjust for family size: 52% for one person, 68% for two persons, 84% for three persons, 100% for four persons, 116% for five persons, and 132% for six persons. For family sizes greater than six persons, add 3% to 132% for each additional family member and multiply the new per- centage by the state's estimated median income for a 4-person family. 2 Prepared by the Bureau of the Census from the March 1994 Current Population Survey, 1990 Decennial Census of Population and Housing, and 1993 per capita personal income estimates, by state, from the Bureau of Economic Analysis. [FR Doc. 95–7741 Filed 3–29–95; 8:45 am] ACTION: Notice; correction. FOR FURTHER INFORMATION CONTACT: BILLING CODE 4184±01±P LaJuana D. Caldwell, Office of Policy SUMMARY: The Food and Drug (HF–27), Food and Drug Administration (FDA) is correcting a Administration, 5600 Fishers Lane, Food and Drug Administration notice that appeared in the Federal Rockville, MD 20857, 301–443–2994. Register of November 9, 1994 (59 FR In FR Doc. 94–27222, appearing on [Docket No. 94M±0363] 55847). The document announced the page 55847, in the Federal Register of approval of the ExogenTM, Inc., Sonic November 9, 1994, the following TM Exogen , Inc.; Premarket Approval of Accelerated Fracture Healing System corrections are made: Sonic Accelerated Fracture Healing 1. On page 55847, in the third (SAFHS). Some information was System (SAFHS); Correction column, the ‘‘SUMMARY’’ section, inadvertently omitted and incorrect beginning in the 5th line, ‘‘September AGENCY: Food and Drug Administration, approval dates were used. This 13, 1994’’ should read ‘‘October 5, HHS. document corrects those errors. 1994’’; and in the ‘‘SUPPLEMENTARY Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16481 INFORMATION’’ section in, beginning COMMENTS: We will accept written cooperative agreement awards for in the 10th line, the words ‘‘acceleration comments on these proposals. We will, development of demonstration projects of the time to a healed fracture for fresh, if feasible, acknowledge receipt of all that may involve section 1115 authority. closed, distal’’ should read ‘‘the comments, but we will not provide A. Comprehensive Health Reform treatment of fresh, closed, posteriorly written responses to comments. We Programs displaced distal.’’ will, however, neither approve nor 2. On page 55848, in the first column, disapprove any new proposal for at least 1. New Proposals in the first paragraph, in the 31st line, 30 days after the date of this notice to Demonstration Title/State: Louisiana after the word ‘‘indication’’, the allow time to receive and consider Health Access—Louisiana. following paragraph is added: comments. Direct comments as Description: Louisiana proposes to All other indications for the device will indicated below. implement a fully capitated statewide require additional data, and PMA ADDRESSES: Mail correspondence to: managed care program. A basic benefit supplements must be submitted for new Susan Anderson, Office of Research and indications. Furthermore, the applicant must package and a behavioral health and conduct a study to gather additional Demonstrations, Health Care Financing pharmacy wrap-around would be information to validate some of the Administration, 2230 Oak Meadows, administered through the managed care conclusions that were drawn from the PMA 6325 Security Boulevard, Baltimore, MD plans. The State intends to expand studies, based on a larger size. 21207. eligibility of persons with incomes up to 3. On the same page, in the first FOR FURTHER INFORMATION CONTACT: 250 percent of the Federal poverty level column, in the 38th line, after the word Susan Anderson, (410) 966–3996. (FPL), with persons with incomes above ‘‘review’’, the following paragraph is SUPPLEMENTARY INFORMATION: 133 percent of the FPL paying all or a added: portion of premiums. To fund the In accordance with the Panel’s observation I. Background demonstration, the State is seeking a that differences exist in the rate of healing in Under Section 1115 of the Social waiver of Federal Medical Assistance different age groups, CDRH also directed the Payments (FMAP) requirements, which applicant to include a warning statement Security Act (the Act), the Department regarding the specific age range of the of Health and Human Services (HHS) would effectively create a block grant patients to be treated. CDRH concluded that may consider and approve research and whereby the Federal share of the based on the study’s success criteria (e.g., demonstration proposals with a broad demonstration would be fixed over the both radiographically and clinically healed), range of policy objectives. These course of the demonstration and the the results of study did show a statistically demonstrations can lead to State would assume the cost of increases significant difference in the time to a healed improvements in achieving the as they occurred. fracture in favor of the active device. purposes of the Act. Date Received: January 3, 1995. 4. On the same page, in the first In exercising her discretionary State Contact: Carolyn Maggio, column, in the 43d line, after the word authority, the Secretary has developed a Executive Director, Bureau of Research ‘‘panel’’ the following phrase is added: number of policies and procedures for and Development, Louisiana ‘‘additional statistical analysis of the reviewing proposals. On September 27, Department of Health and Hospitals, patient data stratified by age and gender,’’. 1994, we published a notice in the Post Office 2870, Baton Rouge, 5. On the same page, in the first full Federal Register (59 FR 49249) that Louisiana 70821–2871, (504) 342–2964. paragraph, in the first line, ‘‘September specified (1) the principles that we Federal Project Officer: Gina Clemons, 13, 1994’’ should read ‘‘October 5, ordinarily will consider when Health Care Financing Administration, 1994’’. approving or disapproving Office of Research and Demonstrations, Dated: March 17, 1995. demonstration projects under the 2302 Oak Meadows, 6325 Security Joseph A. Levitt, authority in section 1115(a) of the Act; Boulevard, Baltimore, Maryland 21207. Deputy Director for Regulations Policy, Center (2) the procedures we expect States to Demonstration Title/State: for Devices and Radiological Health. use in involving the public in the SoonerCare—Oklahoma. [FR Doc. 95–7744 Filed 3–30–95; 8:45 am] development of proposed demonstration Description: Oklahoma proposes to BILLING CODE 4160±01±F projects under section 1115; and (3) the implement a 5-year statewide managed procedures we ordinarily will follow in care demonstration using both fully and reviewing demonstration proposals. We partially capitated delivery systems. The Health Care Financing Administration are committed to a thorough and emphasis of the program is to address expeditious review of State requests to access problems in rural areas by [ORD±073±N] conduct such demonstrations. encouraging the development of rural- based managed care initiatives. The New and Pending Demonstration II. Listing of New and Pending State will employ traditional fully Project Proposals Submitted Pursuant Proposals for the Month of January capitated managed care delivery models to Section 1115(a) of the Social 1995 Security Act: January 1995 for urban areas and will introduce a As part of our procedures, we are series of partial capitation models in the AGENCY: Health Care Financing publishing a monthly notice in the rural areas of the State. All currently Administration (HCFA), HHS. Federal Register of all new submissions, eligible, non-institutionalized ACTION: Notice. pending proposals, approvals, and individuals will be enrolled during the disapprovals. Proposals submitted in first two years of the project. SUMMARY: This notice lists new response to a grant solicitation or other Date Received: January 6, 1995. proposals for demonstration projects competitive process will be reported as State Contact: Dr. Garth Splinter, submitted to the Department of Health received during the month that such Oklahoma Health Care Authority, and Human Services during the month grant or bid is awarded, so as to prevent Lincoln Plaza, 4545 N. Lincoln Blvd., of January 1995 under the authority of interference with the awards process. Suite 124, Oklahoma City, Oklahoma section 1115 of the Social Security Act. We have added a new category in this 73105. This notice also lists approved, notice entitled ‘‘Approved Grant Federal Project Officer: Helaine I. disapproved and pending proposals. Proposals’’ to identify grant and Fingold, Health Care Financing 16482 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Administration, Office of Research and Development, Division of Medical Date Received: June 14, 1994. Demonstrations, 2302 Oak Meadows, Assistance, 600 Washington Street, State Contact: Barry Bodell, New 6325 Security Boulevard, Baltimore, Boston, Massachusetts 02111, (617) Hampshire Department of Health and Maryland 21207. 348–5695. Human Services, Office of the Federal Project Officer: Ed Hutton, Commissioner, 6 Hazen Drive, Concord, 2. Pending Proposals: Health Care Financing Administration, New Hampshire 03301–6505, (603) 271– Demonstration Title/State: The Office of Research and Demonstrations, 4332. Diamond State Health Plan—Delaware. 2302 Oak Meadows, 6325 Security Federal Project Officer: Maria Description: Delaware proposes to Boulevard, Baltimore, Maryland 21207. Boulmetis, Health Care Financing expand eligibility for Medicaid to Demonstration Title/State: Administration, Office of Research and persons with incomes up to 100 percent MinnesotaCare—Minnesota. Demonstrations, 2302 Oak Meadows, of the Federal poverty level and require Description: Minnesota proposes to 6325 Security Boulevard, Baltimore, that the Medicaid population enroll in expand its use of managed care service Maryland 21207. managed care delivery systems. The delivery and to extend Medicaid 3. Approved Conceptual Proposals State’s current section 1115 eligibility to families and children with (Award of Waivers Pending) demonstration project, the Delaware incomes up to 275 percent of the Health Care Partnership for Children, Federal poverty level. The State would No conceptual proposals were would be incorporated into the also integrate Medicaid with other approved during the month of January. statewide program as an optional public entities that deliver health 4. Approved Grant Proposals (Award of provider for eligible children. services. Waivers Pending) Date Received: July 29, 1994. Date Received: July 28, 1994. State Contact: Kay Holmes, DSHP State Contact: Maria Gomez, No grant proposals were awarded in Coordinator, DHSS Medicaid Unit, Commissioner, Health Care Services the month of January. The following are Biggs Building, P.O. Box 906, New Delivery, Minnesota Department of proposals awarded since January 1, Castle, Delaware 19720, (302) 577–4900. Human Services, 444 Lafayette Road N, 1993: Demonstration Title/State: MAINE– Federal Project Officer: Rosana St. Paul, Minnesota 55155, (612) 297– NET: Medicaid and Medicare Managed Hernandez, Health Care Financing 4113. Care for the Elderly and Physically Administration, Office of Research and Federal Project Officer: Penny Pine, Disabled in Maine—Maine. Demonstrations, 2302 Oak Meadows, Health Care Financing Administration, Description: This project is designed 6325 Security Boulevard, Baltimore, Office of Research and Demonstrations, to demonstrate integrated models for the Maryland 21207. 2302 Oak Meadows, 6325 Security Boulevard, Baltimore, Maryland 21207. financing and delivery of managed Demonstration Title/State: MediPlan Demonstration Title/State: Missouri. health care and social services for Plus—Illinois. Description: Missouri proposes to elderly and physically disabled persons Description: Illinois seeks to develop require that beneficiaries enroll in on Medicare and/or Medicaid in Maine. a managed care delivery system using a managed care delivery systems, and The project seeks to promote the series of networks, either local or extend Medicaid eligibility to persons development of regional service statewide, to tailor its Medicaid delivery with incomes below 200 percent of the delivery networks or health plans, system to the needs of local urban Federal poverty level. As part of the particularly in rural areas of the State, neighborhoods or large rural areas. program, Missouri would create a fully that would be responsible for the Date Received: September 15, 1994. capitated managed care pilot program to management, coordination and State Contact: Tom Toberman, serve non-institutionalized persons with integration of services, including multi- Manager, Federal/State Monitoring, 201 permanent disabilities on a voluntary disciplinary approaches to care South Grand Avenue East, Springfield, basis. planning and service delivery. The Illinois 62763, (217) 782–2570. Date Received: June 30, 1994. demonstration will provide a Federal Project Officer: Gina Clemons, State Contact: Donna Checkett, comprehensive package of primary, Health Care Financing Administration, Director, Division of Medical Services, acute, and long term care (institutional Office of Research and Demonstrations, Missouri Department of Social Services, and noninstitutional) services as part of 2302 Oak Meadows, 6325 Security P.O. Box 6500, Jefferson City, Missouri a prepaid capitated health plan for the Boulevard, Baltimore, Maryland 21207. 65102–6500, (314) 751–6922. target populations. The project is in the Demonstration Title/State: Federal Project Officer: Suzanne early developmental stage. MassHealth—Massachusetts. Rotwein, Health Care Financing Date Received: March 25, 1994. Description: Massachusetts proposes a Administration, Office of Research and State Contact: Carreen Wright, State range of strategies that would extend Demonstrations, 2302 Oak Meadows, of Maine Department of Human Medicaid coverage to its low-income 6325 Security Boulevard, Baltimore, Services, State House Station #11, and uninsured citizens, including the Maryland 21207. Augusta, Maine 04333. employed, the short-term unemployed, Demonstration Title/State: The Federal Project Office: Kay and the long-term unemployed. The Granite State Partnership for Access and Lewandowski, Health Care Financing proposed program would employ direct Affordability in Health Care—New Administration, Office of Research and provision of health services as well as Hampshire. Demonstrations, 2302 Oak Meadows, indirect strategies that would promote Description: New Hampshire proposes Baltimore, Maryland 21207. market forces to address the needs of the to extend Medicaid eligibility to adults Demonstration Title/State: Project uninsured, by providing subsidies to with incomes below the AFDC cash Demonstrating and Evaluating employers and low-income employees standard and to create a public Alternative Methods to Assure and with incomes up to 200 percent of the insurance product for low income Enhance the Quality of Long Term Care Federal poverty level. workers. The State also seeks to Services for Persons with Date Received: April 15, 1994. implement a number of pilot initiatives Developmental Disabilities through State Contact: Laurie Burgess, to help redesign its health care delivery Performance-Based Contracts with Director, Managed Care Program system. Service Providers—Minnesota Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16483 Description: The purpose of this 6. Disapproved Proposals Lafayette Road North, St. Paul, project is to determine whether and how No comprehensive health reform Minnesota 55155, (612) 296–2140. Federal Project Officer: Melissa well the implementation of new proposals have been disapproved since McNiff, Health Care Financing approaches to quality assurance, with January 1, 1993. outcome-based definitions and Administration, Office of Research and measures of quality, will replace the B. Other Section 1115 Demonstration Demonstrations, 2302 Oak Meadows, input and process measures of quality, Proposals 6325 Security Boulevard, Baltimore, Maryland 21207. and in the process contribute to 1. New Proposals improving quality of life for persons Demonstration Title/State: Family with developmental disabilities. The No new proposals were received Planning Proposal—New Mexico. Minnesota Department of Human during the month of January. Description: New Mexico proposes to Services will seek Federal authority to 2. Pending Proposals extend Medicaid eligibility for family waive necessary provisions of planning services to all women of intermediate care facilities for the Demonstration Title/State: Georgia’s childbearing age with incomes at or mentally retarded (ICFs/MR) regulations Children’s Benefit Plan. below 185 percent of the Federal to permit alternative quality assurance Description: The State of Georgia poverty level. mechanisms in selected demonstration, submitted a Section 1115 proposal Date Received: November 1, 1994. residential, and support service entitled ‘‘Georgia Children’s Benefit State Contact: Bruce Weydemeyer, programs. The Department will enter Plan’’ that provides preventive and Director, Division of Medical into performance-based contracts with primary care services for children 1 Assistance, P.O. Box 2348, Santa Fe, counties, and participating ICF/MR through 5 years of age who are between New Mexico 87504–2348, (505) 827– providers. Desirable outcomes include, 133 and 185 percent of the Federal 3106. among others, the enhancement of poverty level. The duration of the Federal Project Officer: Alisa Adamo, consumer choice and autonomy, waiver is 5 years with proposed project Health Care Financing Administration, employment, and integration into the dates of July 1, 1995 to June 30, 2000. Office of Research and Demonstrations, community. This project is in the Date Received: December 12, 1994. 2302 Oak Meadows, 6325 Security developmental stage. State Contact: Jacquelyn Foster-Rice, Boulevard, Baltimore, Maryland 21207. Georgia Department of Medical Demonstration Title/State: Pay-in Date Received: March 25, 1994. Assistance, 2 Peachtree Street NW, 201 Spenddown Pilot—Ohio. State Contact: Helen M. Yates, South Grand Avenue East, Atlanta, Description: Ohio proposes to Minnesota Department of Human Georgia 30303–3159, (404) 651–5785. implement a one-county pilot program Services, Health Care Administration, Federal Project Officer: Maria to simplify Medicaid eligibility 44 Lafayette Road, St. Paul, Minnesota Boulmetis, Health Care Financing administration. It would allow the 55155–3853. Administration, Office of Research and medically needy to pay in spenddown Federal Project Officer: Samuel M. Demonstrations, 2302 Oak Meadows, amounts in order to qualify for Brown, Health Care Financing 6325 Security Boulevard, Baltimore, Medicaid. Administration, Office of Research and Maryland 21207. Date Received: April 28, 1994. State Contact: Jeanne Carroll, Ohio Demonstrations, 2302 Oak Meadows, Demonstration Title/State: High Cost Department of Human Services, 30 East 6325 Security Boulevard, Baltimore, User Initiative—Maryland. Broad Street, Columbus, Ohio 43266, Maryland 21207. Description: Maryland proposes to (614) 466–6024. 5. Approved Proposals implement an integrated case Federal Project Officer: David Walsh, management system for high-cost, high- Health Care Financing Administration, Demonstration Title/State: risk Medicaid recipients. OhioCare—Ohio. Office of Research and Demonstrations, Date Received: July 8, 1994. 2302 Oak Meadows, 6325 Security Description: Ohio will expand State Contact: John Folkemer, Boulevard, Baltimore, Maryland 21207. Medicaid eligibility to include Maryland Department of Health and Demonstration Title/State: uninsured persons with incomes up to Mental Hygiene, Office of Medical CHOICES—Citizenship, Health, 100 percent of the Federal poverty level. Assistance Policy, 201 West Preston Opportunities, Interdependence, New and current eligibles in this Street, Baltimore, Maryland 21201, (410) Choices and Supports—Rhode Island. statewide program will receive services 225–5206. Description: Rhode Island proposes to through managed care. Certain special Federal Project Officer: Rosana consolidate all current State and Federal health related services, such as mental Hernandez, Health Care Financing funding streams for adults with health and drug and alcohol addiction Administration, Office of Research and developmental disabilities under one services, will also be provided through Demonstrations, 2302 Oak Meadows, program using managed care/managed managed care. 6325 Security Boulevard, Baltimore, competition. Date Received: March 2, 1994. Maryland 21207. Date Received: April 5, 1994. Date Awarded: January 17, 1995. Demonstration Title/State: Minnesota State Contact: Susan Babin, Long-Term Care Options Project— Department of Mental Health, Implementation Date: (Proposed) Minnesota. Retardation, and Hospitals, Division of January 1, 1996. Description: The State proposes to Developmental Disabilities, 600 New State Contact: Kathi Glynn, Director, integrate long-term care and acute care London Avenue, Cranston, Rhode Island Ohio Medicaid, 30 East Broad Street, services under combined Medicare and 02920, (401) 464–3234. Columbus, Ohio 43266, (614) 644–0140. Medicaid capitation payments for Federal Project Officer: Melissa Federal Project Officer: David Walsh, elderly dual eligibles. McNiff, Health Care Financing Health Care Financing Administration, Date Received: April 18, 1994. Administration, Office of Research and Office of Research and Demonstrations, State Contact: Pamela Parker, Demonstrations, 2302 Oak Meadows, 2302 Oak Meadows, 6325 Security Minnesota Department of Human 6325 Security Boulevard, Baltimore, Boulevard, Baltimore, Maryland 21207. Services, Human Services Building, 444 Maryland 21207. 16484 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Demonstration Title/State: Virginia. Demonstration Title/State: The benchmark their own performance and Description: Virginia proposes to Multistate Nursing Home Case-Mix and help Medicare and Medicaid target expand Medicaid eligibility to children Quality Demonstration—Kansas. nursing home surveys. in the State-funded KIDS CARE Description: This demonstration tests Date Received: Winter 1989. program, and provide them with a a combined Medicare and Medicaid Date Awarded: January 1995. limited Medicaid benefit restricted to nursing home payment and quality Implementation Date: (Proposed) ambulatory services. monitoring system. The system Summer 1995. Date Received: May 18, 1994. significantly enhances the quality State Contact: Alison Moore, R.N., State Contact: Janet Kennedy, Suite assurance process in SNFs. Data for M.B.A., Case Mix Demonstration Project 1300, 600 East Broad Street, Richmond, measuring quality of care will come Director, Bureau of Medical Services, Virginia 23219, (804) 371–8855. from an expanded version of the Maine Department of Human Services, Federal Project Officer: Maria standardized resident assessment State House Station 11, Augusta, Maine Boulmetis, Health Care Financing instrument currently used by States for 04333, (207) 287–3838. Administration, Office of Research and all nursing home residents. The same Federal Project Officer: Elizabeth Demonstrations, 2302 Oak Meadows, tool that is used in care planning, which Cornelius, Health Care Financing 6325 Security Boulevard, Baltimore, measures residents’ needs, strengths, Administration, Office of Research and Maryland 21207. and preferences, will be used to Demonstrations, 2302 Oak Meadows, Demonstration Title/State: Family determine Medicare and Medicaid 6325 Security Boulevard, Baltimore, Planning Demonstration—Washington. payment. In the developmental phase of Maryland 21207. Description: The State proposes to the demonstration, data from the Demonstration Title/State: The provide family planning services to low- assessment instruments were used to Multistate Nursing Home Case-Mix and income women for an additional 10 create 30 facility-level quality Quality Demonstration—Mississippi. months postpartum, which will extend indicators. Under the demonstration, Description: This demonstration tests total coverage for such services to one these indicators will help facilities a combined Medicare and Medicaid year. benchmark their own performance and nursing home payment and quality Date Received: April 21, 1994. help Medicare and Medicaid target monitoring system. The system State Contact: Claudia Lewis, Medical nursing home surveys. significantly enhances the quality Assistance Administration, Division of Date Received: Winter 1989. assurance process in SNFs. Data for Client Services, P.O. Box 45530, Date Awarded: January 1995. measuring quality of care will come Olympia, Washington 98504–5530, Implementation Date: (Proposed) from an expanded version of the (206) 586–2751. Summer 1995. standardized resident assessment Federal Project Officer: Maria State Contact: Evelyn McCormick, instrument currently used by States for Boulmetis, Health Care Financing R.N., Case Mix Demonstration Project all nursing home residents. The same Administration, Office of Research and Director, Department of Social And tool that is used in care planning, which Demonstrations, 2302 Oak Meadows, Rehabilitation Services Docking State measures residents’ needs, strengths, 6325 Security Boulevard, Baltimore, Office Building, Room 628 South, 915 and preferences, will be used to Maryland 21207. Southwest Harrison, Topeka, Kansas determine Medicare and Medicaid Demonstration Title/State: Wisconsin. 66612–1570, (913) 296–4752. payment. In the developmental phase of Description: The State proposes to Federal Project Officer: Elizabeth the demonstration, data from the limit the amount of exempt funds that Cornelius, Health Care Financing assessment instruments were used to may be set aside as burial and related Administration, Office of Research and create 30 facility-level quality expenses for SSI-related Medicaid Demonstrations, 2302 Oak Meadows, indicators. Under the demonstration, recipients. 6325 Security Boulevard, Baltimore, these indicators will help facilities Date Received: March 9, 1994. Maryland 21207. benchmark their own performance and State Contact: Jean Sheil, Division of Demonstration Title/State: The help Medicare and Medicaid target Economic Support, Wisconsin Multistate Nursing Home Case-Mix and nursing home surveys. Department of Health and Social Quality Demonstration—Maine. Date Received: Winter 1989. Services, 1 West Wilson Street, Room Description: This demonstration tests Date Awarded: January 1995. 650, P.O. Box 7850, Madison, Wisconsin a combined Medicare and Medicaid Implementation Date: (Proposed) 53707, (608) 266–0613. nursing home payment and quality Summer 1995. Federal Project Officer: J. Donald monitoring system. The system State Contact: Jamie Collier, Case Mix Sherwood, Health Care Financing significantly enhances the quality Demonstration Project Director Division Administration, Office of Research and assurance process in SNFs. Data for of Medicaid, Robert E. Lee Building, Demonstrations, 2302 Oak Meadows, measuring quality of care will come Suite 801, 239 North Lamar Street, 6325 Security Boulevard, Baltimore, from an expanded version of the Jackson, Mississippi, (601) 359–6081. Maryland 21207. standardized resident assessment Federal Project Officer: Elizabeth instrument currently used by States for Cornelius, Health Care Financing 3. Approved Conceptual Proposals all nursing home residents. The same Administration, Office of Research and (Award of Waivers Pending) tool that is used in care planning, which Demonstrations, 2302 Oak Meadows, No conceptual proposals were measures residents’ needs, strengths, 6325 Security Boulevard, Baltimore, approved during the month of January. and preferences, will be used to Maryland 21207. determine Medicare and Medicaid Demonstration Title/State: The 4. Approved Proposals payment. In the developmental phase of Multistate Nursing Home Case-Mix and The following projects were the demonstration, data from the Quality Demonstration—New York. inadvertently omitted from the list of assessment instruments were used to Description: This demonstration tests pending proposals published in the create 30 facility-level quality a combined Medicare and Medicaid Federal Register on January 23, 1995 indicators. Under the demonstration, nursing home payment and quality (60 FR 4418). these indicators will help facilities monitoring system. The system Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16485 significantly enhances the quality Department of Social Services and Implementation Date: Not yet assurance process in SNFs. Data for Aging, 700 Governors Drive, Pierre, determined measuring quality of care will come South Dakota 57501–2291, (605) 773– State Contact: Jane Forman, from an expanded version of the 3656. Department of Health and Mental standardized resident assessment Federal Project Officer: Elizabeth Hygiene Room 137, 201 West Preston instrument currently used by States for Cornelius, Health Care Financing Street, Baltimore, Maryland 21201, (410) all nursing home residents. The same Administration, Office of Research and 225–6538 tool that is used in care planning, which Demonstrations, 2302 Oak Meadows, Federal Project Officer: Alisa Adamo, measures residents’ needs, strengths, 6325 Security Boulevard, Baltimore, Health Care Financing Administration, and preferences, will be used to Maryland 21207. Office of Research and Demonstrations, determine Medicare and Medicaid Demonstration Title/State: The 2302 Oak Meadows, 6325 Security payment. In the developmental phase of Multistate Nursing Home Case-Mix and Boulevard, Baltimore, Maryland 21207. the demonstration, data from the Quality Demonstration—Texas. The following are projects approved assessment instruments were used to Description: This demonstration tests since January 1, 1993, in addition to create 30 facility-level quality a combined Medicare and Medicaid those published in the Federal Register indicators. Under the demonstration, nursing home payment and quality on January 23, 1995 (60 FR 4418). these indicators will help facilities monitoring system. The system Demonstration Title/State: Medicaid benchmark their own performance and significantly enhances the quality Direct Purchase Vaccine Program help Medicare and Medicaid target assurance process in SNFs. Data for (MDPVP)—Arkansas. nursing home surveys. measuring quality of care will come Description: The MDPVP streamlines Date Received: Winter 1989. from an expanded version of the the reimbursement process for vaccines, Date Awarded: January 1995. standardized resident assessment by allowing States to directly reimburse Implementation Date: (Proposed) instrument currently used by States for manufacturers for vaccines. Vaccine Summer 1995. manufacturers send a shipment of State Contact: David H. Wilcox, CPA, all nursing home residents. The same vaccines on consignment at no cost to Case Mix Demonstration Project tool that is used in care planning, which each private physician who treats Director, Bureau of Health Economics, measures residents’ needs, strengths, children on Medicaid. Physicians then 1143 Corning Tower, Empire State and preferences, will be used to bill Medicaid for the office visit when Plaza, Albany, New York 12237–0722, determine Medicare and Medicaid they inoculate children, but not for the (518) 474–2881. payment. In the developmental phase of Federal Project Officer: Elizabeth the demonstration, data from the cost of the vaccine. The Medicaid Cornelius, Health Care Financing assessment instruments were used to program will reimburse the Administration, Office of Research and create 30 facility-level quality manufacturer directly at a discounted Demonstrations, 2302 Oak Meadows, indicators. Under the demonstration, rate, according to the number of 6325 Security Boulevard, Baltimore, these indicators will help facilities vaccines administered. The Maryland 21207. benchmark their own performance and manufacturer will then send help Medicare and Medicaid target replacement quantities of the vaccines Demonstration Title/State: The nursing home surveys. to the private physicians. Multistate Nursing Home Case-Mix and Date Received: Winter 1989. Date Received: March 1993. Quality Demonstration—South Dakota. Description: This demonstration tests Date Awarded: January 1995. Date Awarded: June 1993. a combined Medicare and Medicaid Implementation Date: (Proposed) Implementation Date: Not Yet nursing home payment and quality Summer 1995. Determined. State Contact: Sue Wilson, Case Mix State Contact: Judy Kerr, Arkansas monitoring system. The system Demonstration Project Director Rate Department of Human Services, significantly enhances the quality Analysis Department, Texas Department Division of Economic and Medical assurance process in SNFs. Data for of Human Services P.O. Box 149030, Services, Donaghey Plaza South, P.O. measuring quality of care will come Mailcode W–425, Austin, Texas 78714– Box 1437 Little Rock, Arkansas 72203– from an expanded version of the 9030 (512) 450–3744 1437, (501) 682–8360. standardized resident assessment Federal Project Officer: Elizabeth Federal Project Officer: Alisa Adamo, instrument currently used by States for Cornelius, Health Care Financing Health Care Financing Administration, all nursing home residents. The same Administration, Office of Research and Office of Research and Demonstrations, tool that is used in care planning, which Demonstrations, 2302 Oak Meadows, 2302 Oak Meadows, 6325 Security measures residents’ needs, strengths, 6325 Security Boulevard, Baltimore, Boulevard, Baltimore, Maryland 21207. and preferences, will be used to Maryland 21207. determine Medicare and Medicaid Demonstration Title/State: Improving payment. In the developmental phase of The following proposal was approved Access to Care for Pregnant Substance the demonstration, data from the in January 1995. Abusers—Massachusetts. assessment instruments were used to Demonstration Title/State: Description: This demonstration seeks create 30 facility-level quality Demonstration Project for Family to increase the number of Medicaid- indicators. Under the demonstration, Planning and Reproductive Services— eligible pregnant substance abusers who these indicators will help facilities Maryland. receive coordinated perinatal care benchmark their own performance and Description: Maryland will extend services, substance abuse treatment, and help Medicare and Medicaid target Medicaid eligibility for family planning other relevant services to promote better nursing home surveys. and preventive reproductive services for health outcomes for themselves and Date Received: Winter 1989. a 5-year period to women who are their offspring. Date Awarded: January 1995. Medicaid eligible due to their pregnancy Date Received: 1991. Implementation Date: (Proposed) and remain Medicaid eligible 60-days Date Awarded: July 1, 1993. Summer 1995. post-partum. Implementation Date: July 1993. State Contact: Carol Job, R.N., Case Date Received: June 11, 1994. State Contact: Milton Argeriou, Ph.D. Mix Demonstration Project Director, Date Awarded: January 18, 1995. Project Director, MOTHERS Project, 200 16486 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Lincoln Street, Suite 303, Boston, Implementation Date: July 1993. III. Requests for Copies of a Proposal Massachusetts 02111, (617) 426–5997. State Contact: Bunny W. Jones, State Requests for copies of a specific Federal Project Officer: Debbie Van Health and Human Services Finance Medicaid proposal should be made to Hoven, Health Care Financing Commission, Department of High Risk the State contact listed for the specific Administration, Office of Research and and Maternal Care, P.O. Box 8206, proposal. If further help or information Demonstrations, 2302 Oak Meadows, Columbia, South Carolina 29202–8206, is needed, inquiries should be directed 6325 Security Boulevard, Baltimore, (803) 253–6374. to HCFA at the address above. Maryland 21207. Federal Project Officer: Debbie Van Demonstration Title/State: Improving (Catalog of Federal Domestic Assistance Hoven, Health Care Financing Program, No. 93.779; Health Financing Access to Care for Pregnant Substance Administration, Office of Research and Research, Demonstrations, and Experiments.) Abusers—New York. Demonstrations, 2302 Oak Meadows, Dated: March 21, 1995. Description: This demonstration seeks 6325 Security Boulevard, Baltimore, Bruce C. Vladeck, to increase the number of Medicaid- Maryland 21207. eligible pregnant substance abusers who Administrator, Health Care Financing Demonstration Title/State: Health Administration. receive coordinated perinatal care Access Plan—Washington. services, substance abuse treatment, and [FR Doc. 95–7848 Filed 3–29–95; 8:45 am] Description: This project tests the other relevant services to promote better BILLING CODE 4120±01±P effects of eliminating categorical health outcomes for themselves and eligibility requirements and raising the their offspring. Date Received: 1991. financial eligibility limits to 200 percent National Institutes of Health Date Awarded: July 1, 1993. of the Federal poverty level on individuals’ access to and cost of health Division of Research Grants; Closed Implementation Date: July 1993. Meetings State Contact: Mr. Stuart Lefkowich, care. Assistant Commissioner, Bureau of Date Received: Spring 1991. Pursuant to Section 10(d) of the Primary Care, Division of Health and Date Awarded: February 1993. Federal Advisory Committee Act, as Long Term Care, New York State Implementation Date: March 1993. amended (5 U.S.C. Appendix 2), notice Department of Social Services, 40 North State Contact: Rochelle Salsman, is hereby given of the following Division Pearl Street, Albany, New York 12243– Department of Health and Social of Research Grants Special Emphasis 0001, (518) 473–5875 Services, Medical Assistance Panel (SEP) meetings: Federal Project Officer: Sherrie Fried, Administration, Office of Recipient Purpose/Agenda: To review individual Health Care Financing Administration, Services, 617 8th Avenue, SE., 4th grant applications. Office of Research and Demonstrations, Floor, P.O. Box 45530, Olympia, Name of SEP: Chemistry and Related 2302 Oak Meadows, 6325 Security Washington 98504, (206) 753–7463. Sciences. Boulevard, Baltimore, Maryland 21207. Federal Project Officer: Jamie Hadley, Date: April 7, 1995. Demonstration Title/State: Health Health Care Financing Administration, Time: 1:00 p.m. Access Plan—South Carolina. Office of Research and Demonstrations, Place: NIH, Westwood Building, Room 322, Telephone Conference. Description: This project tests the 2302 Oak Meadows, 6325 Security Contact Person: Dr. Edmund Copeland, effects on individuals’ access to and cost Boulevard, Baltimore, Maryland 21207. Scientific Review Admin., 5333 Westbard of health care of eliminating categorical Demonstration Title/State: Improving Ave., Room 322, Bethesda, MD 20892, (301) eligibility requirements and of raising Access to Care for Pregnant Substance 594–7154. the financial eligibility limits to 150 Abusers—Washington. Name of SEP: Chemistry and Related percent of the Federal poverty level. Sciences. Description: This demonstration seeks Date Received: Spring 1991. Date: April 14, 1995. to increase the number of Medicaid- Date Awarded: February 1993. Time: 1:00 p.m. eligible pregnant substance abusers who Implementation Date: March 1993. Place: NIH, Westwood Building, Room receive coordinated perinatal care State Contact: Bruce Bondo, Health 322, Telephone Conference. services, substance abuse treatment, and Contact Person: Dr. Edmund Copeland, and Human Services Finance other relevant services to promote better Scientific Review Admin., 5333 Westbard Commission, 1801 Main Street, health outcomes for themselves and Ave., Room 322, Bethesda, MD 20892, (301) Columbia, South Carolina 29201, (803) their offspring. 594–7154. 253–6177. Name of SEP: Behavioral and Federal Project Officer: Jamie Hadley, Date Received: 1991. Neurosciences. Health Care Financing Administration, Date Awarded: July 1, 1993. Date: April 21, 1995. Office of Research and Demonstrations, Implementation Date: July 1993. Time: 9:00 a.m. 2302 Oak Meadows, 6325 Security State Contact: Kathy L. Apodaca, First Place: Rockefeller University, New York, Boulevard, Baltimore, Maryland 21207. Steps Plus Project, Medical Assistance NY. Contact Person: Dr. Kenneth Newrock, Demonstration Title/State: Improving Administration, Washington State Scientific Review Admin., 5333 Westbard Access to Care for Pregnant Substance Department of Health, P.O. Box 45730, Ave., Room 232, Bethesda, MD 20892, (301) Abusers—South Carolina. Olympia, Washington 98504, (509) 575– 594–7123. Description: This demonstration seeks 2227. Name of SEP: Clinical Sciences. to increase the number of Medicaid- Federal Project Officer: Alisa Adamo, Date: May 1, 1995. eligible pregnant substance abusers who Health Care Financing Administration, Time: 2:00 p.m. receive coordinated perinatal care Office of Research and Demonstrations, Place: NIH, Westwood Building, Room services, substance abuse treatment, and 2302 Oak Meadows, 6325 Security 349, Telephone Conference. Contact Person: Ms. Jo Pelham, Scientific other relevant services to promote better Boulevard, Baltimore, Maryland 21207. Review Administrator, 5333 Westbard Ave., health outcomes for themselves and 5. Disapproved Proposals Room 349, Bethesda, MD 20892, (301) 594– their offspring. 7254. Date Received: 1991. No proposals were disapproved The meetings will be closed in accordance Date Awarded: July 1, 1993. during the month of January. with the provisions set forth in section Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16487 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. term ‘‘eligible spouse’’ in supplemental breeding or research activities. In the Applications and/or proposals and the security income cases. other alternative, the Service proposes discussions could reveal confidential trade Section 8012 of Public Law (Pub. L.) to retain short-term exhibition loans secrets or commercial property such as 101–239 (the Omnibus Budget under certain limited circumstances. patentable material and personal information Reconciliation Act of 1989) changed the concerning individuals associated with the The basis for findings required by the applications and/or proposals, the disclosure definition of the term ‘‘eligible spouse’’ CITES on ‘‘primarily commercial of which would constitute a clearly by eliminating the 6-month waiting purposes’’ and the Act on unwarranted invasion of personal privacy. period for ending couple status after a ‘‘enhancement of propagation or This notice is being published less than 15 separation. The definition of the term survival of the species’’ are outlined in days prior to the meeting due to the urgent ‘‘eligible spouse’’ as used in these this proposed policy. The suspension of need to meet timing limitations imposed by Rulings is no longer applicable because the review and processing of permit the grant review cycle. of the revised statutory definition. We applications to import live giant pandas (Catalog of Federal Domestic Assistance are publishing final regulations to continues until a decision is made on Program Nos. 93.306, 93.333, 93.337, 93.393– reflect section 8012 of Pub. L. 101–239 this proposed policy. 93.396, 93.837–93.844, 93.846–93.878, on this date. 93.892, 93.893, National Institutes of Health, DATES: The Service will consider HHS) (Catalog of Federal Domestic Assistance comments received by May 30, 1995. Program No. 93.807 Supplemental Security Dated: March 24, 1995. Income.) ADDRESSES: Comments may be submitted to the Office of Management Susan K. Feldman, Dated: February 1, 1995. Committee Management Officer, NIH. Authority, U.S. Fish and Wildlife Shirley S. Chater, Service, 4401 N. Fairfax Drive, Room [FR Doc. 95–7759 Filed 3–29–95; 8:45 am] Commissioner of Social Security. BILLING CODE 4140±01±M 420(c), Arlington, Virginia 22203. [FR Doc. 95–7887 Filed 3–29–95; 8:45 am] Materials received will be available for BILLING CODE 4190±29±M public inspection by appointment from Social Security Administration 7:45 a.m. to 4:15 p.m., Monday through Friday, at the Office of Management Rescission of Social Security Rulings DEPARTMENT OF THE INTERIOR Authority, Room 434. on the Definition of ``Eligible Spouse'' Fish and Wildlife Service FOR FURTHER INFORMATION CONTACT: as it is Used in the Supplemental Management Authority: Kenneth B. Security Income (SSI) Program Proposed Policy on Giant Panda Stansell, Office of Management AGENCY: Social Security Administration, Permits Authority, at the above address, HHS. telephone (703) 358–2093; fax number AGENCY: Fish and Wildlife Service, (703) 358–2280. ACTION: Notice of rescission of Social Interior. Scientific Authority: Dr. Charles W. Security Rulings (SSR) 76–28, 76–41, ACTION: Notice of proposed policy for and 88–11c. Dane, Office of Scientific Authority, issuance of permits for giant panda U.S. Fish and Wildlife Service, SUMMARY: The Commissioner of Social imports; request for comments. telephone (703) 358–1708; fax number Security gives notice of the rescission of SUMMARY: The U.S. Fish and Wildlife (703) 358–2276. SSR 76–28, SSR 76–41, and SSR 88– Service (Service) announces a proposed SUPPLEMENTARY INFORMATION: 11c. policy for issuance of permits for the Background EFFECTIVE DATE: March 30, 1995. import of giant pandas under the FOR FURTHER INFORMATION CONTACT: Convention on International Trade in The survival and ultimately the Joanne K. Castello, Division of Endangered Species (CITES) and the increase in the population of the giant Regulations and Rulings, Social Security U.S. Endangered Species Act (Act). panda (Ailuropoda melanoleuca) in its Administration, 6401 Security Current policy regarding giant panda natural habitat is the strong desire of the Boulevard, Baltimore, MD 21235, (410) imports would be superseded by this United States, the People’s Republic of 965–1711. policy, if adopted. Specifically, no China (China), and the international SUPPLEMENTARY INFORMATION: Social import permits would typically be conservation community. As such, the Security Rulings make available to the issued for animals intentionally panda is subject to strict protection by public precedential decisions relating to removed from the wild. All imports its listing as an endangered species the Federal old-age, survivors, would have to be part of a coordinated under the Act and its inclusion in disability, supplemental security international panda conservation effort, Appendix I of CITES. income, and black lung benefits and activities would need to benefit The Service is responsible for programs. Social Security Rulings may panda conservation by supplementing, regulating panda loans in the United be based on case decisions made at all and not interfering with, China’s States by deciding whether to grant administrative levels of adjudication, breeding and research programs. Any import, export, and re-export permits Federal court decisions, Commissioner’s net profits raised as a result of a panda required by the Act and CITES, and decisions, opinions of the Office of the loan would need to primarily fund interstate and foreign commerce permits General Counsel, and other policy conservation projects, educational under the Act. In making these interpretations of the law and programs, and/or breeding efforts in decisions the Service, under the Act, regulations. China. The Service proposes two must determine whether the proposed SSR 76–28 and SSR 76–41 were alternatives concerning exhibition. One activities are not likely to jeopardize the published in the 1976–1980 Cumulative alternative would allow for import of continued existence of the giant panda Edition of the Rulings, and SSR 88–11c pandas for short-term exhibition loans and would enhance its existence in the was published in the 1988 Cumulative only as an ancillary component of a wild, and under CITES, would be for Edition of the Rulings. These Rulings captive-breeding and/or scientific purposes that are not detrimental to the concern the definition the Social research program, when the display survival of the species and that are not Security Administration used for the would not interfere with the captive- primarily commercial. 16488 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices In the late 1980’s the proposals for are agreed to by conservation efforts outside of China; whether there short-term exhibition loans of giant organizations and China; and (3) is adequate genetic diversity within the pandas became an increasingly agreements can be developed with IUCN captive population to maintain controversial issue. During one period to meet international conservation sufficient heterozygosity in future in 1988, the Service received reports concerns, including increased efforts to generations; whether there is a need for that as many as 30 institutions may have stop poaching and preserve habitat. additional genetic material from the been negotiating, or planning to Verbal comments were made by the wild; the status of reintroduction; and negotiate, with various entities in China World Wildlife Fund (WWF) within the the need for research priorities. The to arrange panda loans, potentially comment period, expressing concern Service also sought information on the posing additional threats to the wild about commercial aspects of exhibition status of all existing or proposed and captive populations of pandas. As loans and the distinction that had been conservation programs and management a result the Service, through the public made by the Service in this regard, and plans for the giant panda. Comments review process, published a policy on that income to the parent city of a zoo were sought on the current panda loan should also be considered. They were March 14, 1991 (56 FR 10809), for the policy and on specific elements of the concerned that exhibition loans could issuance of import permits for short- findings necessary for permit issuance, reduce breeding and induce taking from term exhibition loans. including ‘‘primarily commercial In 1992, after the Service had issued the wild. They thought the Service a permit to the Columbus Zoo to import should provide a clear indication of purposes’’ and ‘‘enhancement’’. a pair of giant pandas for a short-term how it will examine the educational As a result of the public comment exhibition loan, the CITES Secretariat aspect of any exhibits. period in 1994, written information and requested the Service to reevaluate its Before evaluation of the existing comments were received from the AZA, policy on panda imports. The Service policy on short-term exhibition loans Busch Gardens, the Humane Society of published a notice in the Federal was completed, the Service received an the United States (HSUS), WWF, and Register on June 29, 1992 (57 FR 28825), application from the Zoological Society the ZSSD. The AZA commented that: (1) requesting public comment on existing of San Diego (ZSSD) to import a pair of All importers of giant pandas must be policy. Three written comments were giant pandas for a long-term, captive- required to participate in the giant received. The International Union of breeding loan. On April 20, 1993, the panda studbook; (2) most of the funds Directors of Zoological Gardens AZA announced the development of a contributed to China must be used for suggested that an international Giant Panda Conservation Action Plan, giant panda field conservation projects; management program be developed, which has since been formalized. The (3) there must be a project selection and especially for the captive population, plan outlines a captive-breeding monitoring system established in China which should include: (1) The program with support from 29 and overseen in North America for the development of a comprehensive, zoological institutions in North use of funds generated by panda loans; accurate inventory of captive pandas; America. In addition, in July 1993 (4) the permittee must show that the and (2) a carefully designed breeding China’s Ministry of Construction (MOC) importation will not detract from the program, engaging as many founders published the second giant panda current panda captive-breeding program and contributors to the gene pool as studbook, listing all pandas currently in in China; (5) genetic and demographic possible. Although accepting that there captivity. criteria should be used to determine With the possibility of receiving an may be pandas incapable of breeding selection of pandas to be imported; (6) increasing number of import permit that could be used for exhibition, they there should be no lower age limit for applications for giant pandas for public recommended a complete ban on animals to be imported, and pre- exhibit loans until a panda management exhibition, scientific research, and/or captive breeding purposes, the Service reproductive animals should be allowed plan is in place. if the permittee can demonstrate their The World Conservation Union felt that a re-examination of the long- value within a holistic panda (IUCN) stated there should be a range implications of panda imports moratorium on short-term non-breeding was necessary to ensure that such conservation program; (7) loans should loans of pandas until there is sufficient imports best serve the conservation be longer than 3 years; (8) animals to be evidence that such loans would needs of the species. Thus, on December imported must be individually contribute to a long-term conservation 20, 1993, the Service announced in a identified; (9) importing facilities must strategy in captivity and in the wild. news release the temporary suspension follow recommended minimum housing They believed there is need for a of the processing of any new permit guidelines, and facilities should be strategy defining priority conservation applications for the import of live giant approved by the Chinese; (10) the activities for the species. pandas during a reassessment of the permittee must show that the The New York Zoological Society current policy. On May 4, 1994, the importation is part of the AZA Giant viewed short-term exhibition loans as Service requested public comments and Panda Conservation Action Plan, or a money-making commercial ventures announced a working public meeting to similar plan; (11) all permittees must that should not be considered as ‘‘not assist the Service in formulating the support research aimed at resolving for commercial purposes’’, stating that draft revised policy (59 FR 23077). The husbandry and management problems any policy should meet the mandatory suspension of review and processing of of giant pandas and at increasing standards that the American Zoo and any new live giant panda import reproductive success; (12) import must Aquarium Association (AZA) has permits remains in effect. be for a scientific purpose or survival of proposed. In their view, poaching Public meetings were held by the the species and not likely to jeopardize continues as a major problem, yet little Service on May 26 and August 23, 1994. the continued existence of the species; is being done to stop it. They For its review, the Service sought (13) no animals are to be used in animal maintained there should be a complete information on: Giant panda status and acts while in the United States; (14) moratorium on loans until: (1) There is population trends; current information there must be an education component; an adequate and complete register and on habitat availability and continuing and (15) part of the program must be to studbook of captive pandas; (2) a loss; the status of current breeding assist the Chinese in technology transfer complete series of priorities and projects efforts; the need to augment breeding and training and collaborative efforts in Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16489 panda husbandry, management, and institution can result in the benefit to received and gives a brief description of health care. the local economy in the same manner elements in this proposed policy. Busch Gardens commented that: (1) that for-profit institutions operate to Population Status The Service should lift its moratorium generate a profit, all institutions should on the importation of giant pandas and be held to the same stringent standards; Precise data on the size of the wild establish a new policy promptly; (2) (4) the standards for ‘‘primarily population of giant pandas are not since the current policy establishes commercial’’ need to be defined to available. The most recent survey, guidelines for only short-term consider the motivation for a giant performed from 1985 to 1988, exhibition loans, the new policy should panda loan; (5) the requirements on concluded there were between 872 and set specific guidelines for long-term accounting and allowable expenses 1,352 pandas in the wild. The most captive-breeding loans; (3) the new need to be strengthened—the Service common current estimate is that there policy should recognize that long-term should consider setting a ceiling on the are fewer than 1,000 giant pandas left in breeding loans sponsored by the AZA associated expense that an exhibitor can the wild and that the population is under its conservation plan are deduct from revenues generated by the continuing to decline. In less than 15 inherently non-commercial and, loan; (6) it should be clarified that years, from 1975 to 1989, the total area therefore, meet the CITES requirement education of the American public is not of panda habitat declined by 53 percent. of being ‘‘not for primarily commercial a criterion in making permit decisions, This decline was primarily due to purposes’’, and ‘‘for-profit’’ institutions and education in China related to in-situ logging, grazing, and conversion of that participate in the AZA program panda conservation should be forest habitat to agriculture and other should be treated in the same way as considered as a component of an uses, resulting in the fragmentation of ‘‘not-for-profits’’; (4) accounting or integrated conservation program; (7) habitat into small islands. The 1985–88 reporting obligations should not be better documentation should be survey found the wild panda population imposed on the importer as a result of required on the specific conservation to be fragmented into 24 isolated groups a long-term breeding loan as they are projects in China that are to receive separated by mountain ranges, rivers, unnecessary, impracticable, and funding from an exhibitor, and China’s roads, forest clearings, and human unprecedented; and (5) neither CITES approved and complete National settlements. Some of these groups nor the Act requires an ‘‘in fact’’ finding Conservation Project Plan for the Giant contain fewer than 10 pandas, making by the Service that a proposed activity Panda and its Habitat (National Plan) for them vulnerable demographically and will enhance propagation or survival of pandas should be used as a guide; and genetically. Without genetic exchange the panda, and participants in the AZA (8) the Service must monitor among these populations, the plan should automatically meet the performance of exhibitors on an annual persistence of such small islands of enhancement standard of the Act. basis to ensure they are complying with The HSUS indicated that: (1) The pandas over time is questionable. In the provisions of the permit. addition, poaching continues to take its previous exhibition of pandas in zoos in The ZSSD commented that: (1) There toll, despite the imposition of harsh the United States has not resulted in the is a need to clarify existing regulations penalties, including execution. improvement of the status of pandas in and guidelines; (2) there needs to be a captivity or in the wild, and experience framework that includes agreement on Status of Captive Breeding in China and has shown that large populations of the role for captive breeding, the Need for Breeding Efforts Outside of animals in captivity are not an effective coordinated and effective research with China conservation tool; (2) they oppose the agreed-upon, but flexible, research removal of an endangered animal from objectives, effective habitat preservation The continued decline of the wild the wild for confinement and breeding and restoration with emphasis on population of giant pandas and the in zoos unless preservation of the management of human conflicts, increasing fragmentation of its habitat species’ ecosystem is assured; (3) it sufficient funding to accomplish these make it increasingly important to would be desirable to duplicate the tasks, with agreed-upon monitoring and establish a self-sustaining captive experience in Chinese breeding centers sufficient accountability for revenues population. The existence of a robust of maintaining a number of pandas and expenditures, and agreement on the captive population could provide clustered at one location for breeding; role of display; and (3) they feel strongly insurance against increasing threats to (4) the import of pandas to zoos will that captive breeding is central. They the wild population. The current always serve a commercial purpose, and suggested an approach to the policy that captive population represents about 10 there has been little control or guarantee includes a framework agreement percent of the total panda population, of what happens to funds going to China between AZA and the Chinese captive and wild. As of June 1993, there for panda conservation; and (5) funds, government that would identify priority were 113 giant pandas in captivity in 35 technical assistance, and other efforts conservation projects and research institutions—98 animals were in should be directed toward protecting priorities with integrated participation institutions in China and 15 pandas habitat and reintroductions. The WWF by U.S. institutions. Permits could be were in 8 institutions located outside of commented that: (1) Long-term breeding issued to institutions based on this China. Three institutions had 14 to 21 and research loans must be part of an agreement, and a monitoring and pandas and 4 had 4 to 6 animals. The integrated, international program implementation process could be remaining 28 institutions had 1 or 2 designed to complement conservation established involving key parties, such animals. The Chinese recognize that efforts for the wild panda population; as the AZA, the permittee, the Service, these captive pandas need to be moved (2) research loans must be for research and the WWF. for better breeding opportunities and to that is of high priority, is best conducted The Service considered these ensure that all mature individuals outside China, and will produce results comments and comments given at the participate in breeding. Of the 15 that will contribute to the pool of two public meetings, plus the pandas currently held in 8 institutions knowledge about giant pandas; (3) experience it has gained since 1991 in outside China, 5 institutions hold only standards for commercial vs. not-for- applying the current policy, to draft a 1 panda. These data demonstrate the profit institutions need to be clarified— new proposed policy. The following great need to coordinate the movement if import of a panda by a city-owned summarizes information the Service of captive-held pandas internationally. 16490 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices The captive-breeding program in improvement; (2) captive- breeding; (3) will be responsible for assuring that China is not currently self-sustaining. ecology, population status, and specific funds will be used in specific Between 1936 and 1988, 345 pandas monitoring; (4) rearing and nutrition; (5) areas. After deductions for some held in captivity produced 67 litters of prevention of illness; and (6) overhead costs, funds will be used 106 cubs, with only 32 surviving more reintroduction of captive pandas to the entirely for projects in the National than a year. In recent years, wild. The ‘‘Giant Panda Breeding Plan’’ Plan, allocated on a priority basis and improvement in management and joint developed in China (see following the Project Office is responsible for efforts within China have enhanced section) lists the following areas that announcing the allocation and breeding and survival rates and reduced need basic research: (1) artificial expenditure of funds generated for the the infant mortality rate of the captive insemination biology and techniques; National Plan. population. However, a review of the (2) breeding behavior; (3) disease Advances have been made in the International Studbook of the Giant prevention; (4) reproductive physiology; captive-breeding efforts as well. In 1993, Panda suggests that the current number (5) diet; (6) mating ability; (7) the second international studbook of of founders that have contributed to the reproductive longevity; and (8) fertility. giant pandas was published, listing all captive population is inadequate. Because of the precarious level of the births, deaths, capture locations, and According to the studbook, the current panda population, it is important that other valuable data. In September 1993 captive population is descended from research findings are shared quickly and at the International Giant Panda 30 founders. However, recent research that information and methodologies are Conference in Chengdu a document suggests that fewer than 30 founders transferred to China for use in the field entitled, ‘‘Giant Panda Captive Breeding may exist because the paternity of some and in the captive-breeding program. Plan’’ was presented. It references the of the captive-born pandas is uncertain. Giant Panda Breeding Technical Giant Panda Conservation Plans The current captive population includes Committee, which coordinates captive- 57 wild-caught pandas that have not In the past decade, there appear to breeding. Although the Service does not reproduced, but only 31 of these are have been advances in panda know whether this document will currently of reproductive age. If these conservation as a result of international become official, it is a clear indication pandas could be encouraged to breed cooperation with the Chinese ministries. of the increased cooperation between before their deaths, the captive The WWF worked closely with the Chinese zoos and MOF panda-breeding population might not need additional Ministry of Forestry (MOF) to develop a facilities. genetic material from the wild panda conservation plan, which was Recent events suggest that China is population for several generations. If submitted to the Chinese government in interested in working with entities immediate action is not taken to 1989. China’s National Plan evolved outside of China in an integrated enhance captive propagation efforts, from this plan, and in 1993 it was conservation effort that includes additional genetic material might have approved by China’s State Council, with conservation in the wild and captive to be taken from the wild to ensure the subsequent development of a propagation. On January 14, 1994, an sufficient genetic diversity in the priority list of the projects included in agreement was signed between AZA and captive population. the plan. The National Plan proposes Chinese officials, in which the Chinese establishing 14 new panda reserves, support the long-term giant panda Reintroduction improving 13 existing giant panda captive-breeding cooperative plan in In view of the information on the nature reserves, constructing 18 panda North America as presented by AZA. status of the panda in the wild and in migration corridors, and setting up 32 The Chinese also indicated that giant captivity, the Service recognizes that habitat management stations. It would pandas removed from the wild before reintroductions cannot occur until a cover most of the currently occupied March 1993 and captive-born specimens self-sustaining population of captive- panda habitat, protecting 95 percent of that do not detract from the breeding born animals is achieved and sufficient pandas in the wild. With the adoption efforts in China would be made areas of panda habitat are available and of the plan, the Chinese government available for the North American secure. The reintroduction of giant made a major commitment to the captive population. As part of this pandas is a long-term goal that needs to conservation of pandas and the plan by agreement, AZA is developing be incorporated into coordinated appropriating $13 million for its procedures for verifying expenditures international conservation efforts. implementation. However, the total within China and for monitoring the Protocols for reintroduction must be required for completion is estimated at progress of conservation projects. developed so that they are available $77 million, leaving more than $64 Furthermore, China has already agreed when opportunities for reintroduction million that must come from outside to allow AZA personnel to visit China arise. As used in this notice, a sources over the next 10 years. to monitor projects. coordinated international panda To carry out the fund-raising activities The Giant Panda Conservation Action conservation effort means an organized effectively and to ensure that the funds Plan developed by AZA is intended to plan through which all panda imports raised would be used entirely for the supplement and support China’s support high priority projects in China’s conservation projects, China issued National Plan. It calls for 14 priority National Plan and are coordinated with guidelines, ‘‘Utilization and actions to be implemented by China’s captive-breeding plan and the Management of Funds Generated for signatories in full collaboration with AZA Species Survival Plan (SSP) for the China’s National Conservation Project Chinese colleagues and other panda or other applicable multi-national for the Giant Panda and Its Habitat,’’ conservation organizations. One of the breeding plans. which have also been approved by priority actions is to establish a giant China’s State Council. The guidelines panda SSP. The goals of the SSP would Research Priorities indicate that the MOF is responsible for include preservation of the species’ There needs to be a coordinated coordinating and organizing the raising genetic diversity; research contributing global effort to set priorities for panda of funds under the National Plan and to the survival of both wild and captive research. China’s National Plan (see any funds generated must be submitted populations; public education and following section) provides the to the China Protecting Giant Panda professional training, including following research priorities: (1) habitat Project Office (Project Office), which technology transfer; and direct support Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16491 of habitat conservation, including In recent years, the Chinese Age and Other Parameters of Animals financial support. government has taken a firm position on Available for Loans captures from the wild and the number Purposes No post-breeding age pandas would of animals brought into captivity has be considered for import. Since data The primary function of any import of declined. The August 1989 joint report now indicate that the reproductive age of the MOF and WWF titled, The giant pandas must be to enhance the is higher than originally thought, the National Conservation Management ultimate conservation of the species in Service proposes that post-breeding Plan for the Giant Panda and its Habitat the wild. This will require a variety of pandas would be over 20 years of age. (WWF Plan), includes Guidelines for activities and actions in China, The Service feels that the risks from Rescue Operations in Section 3.8. These including habitat protection, habitat transport to animals over this age would recommendations were apparently restoration, creation of corridors linking not be acceptable. developed with the bamboo die-off of isolated populations, elimination of For Alternative 1 in the ‘‘Exhibition’’ the early 1980’s in mind, and they poaching, development of compatible section, the Service proposes that pre- recommend, among other things, that: resource uses in giant panda habitat, breeding age pandas will not be (1) No further panda emergency educational programs in China that considered for an import permit, except operations should be mounted until stress the importance of preserving giant for female pandas within an estimated pandas and their habitat, development another major wave of bamboo flowering affects the panda range; (2) 6 months of their first estrus. For of a self-sustaining captive population, Alternative 2, for short-term exhibition, and, eventually, reintroduction of villagers should not receive any financial incentive to rescue pandas; (3) only the import of pre-breeding male captive-bred animals. This proposed pandas would be considered. policy would allow for the issuance of villagers who encounter starving pandas permits to import pandas for captive- should report immediately to the local Length of Loans forestry officials or designated rangers, breeding, scientific research, and/or The Service believes that the length of who must visit the site to decide exhibition purposes, when the activity giant panda loans should be determined is part of a coordinated international whether rescue is necessary; and (4) rescue should only be attempted in by the purpose(s) of the loan and the panda conservation effort. It proposes length of time necessary to accomplish two alternatives for exhibition. In terminal cases. It further states that ‘‘some of these regulations are already the goals of the import. The Service alternative 1, exhibition would only be feels that internationally coordinated allowed as an ancillary component to accepted,’’ we assume, by the MOF. The National Plan evolved from this 1989 giant panda conservation efforts could captive-breeding or scientific research, incorporate various types of loan and such exhibition would be plan. A Sichuan Forestry Department arrangements requiring varying lengths contingent on the absence of conflict document, with a February 20, 1993, of time. between public display and the primary date, titled, ‘‘Procedure for the research or captive-breeding activities. Conservation Benefits of Specific Conservation and Rescue of the Giant Alternative 2 would allow the import of Projects Panda’’ (Rescue Procedures), outlines pre-breeding age male pandas for short- procedures for reporting the occurrence The Service continues to emphasize term exhibition under certain of ill or injured pandas, authorities the need to relate giant panda imports circumstances. The proposed policy responsible for rescue decisions, and to the enhancement of the species in the emphasizes that, in addition to the options to be considered in a rescue. It wild, especially through funding of in specific purpose(s) of a loan, the also refers to a national protocol on situ projects. It is expected that most permittee must typically fund panda rescue, and indicates that imports would be for multiple purposes conservation projects and/or captive- Sichuan had taken actions regarding and funds would be generated. breeding in China, as well as the possible panda rescues following the The Service proposes that the transfer of scientific and captive- lead of the State Council and the MOF. allocation of net profits derived by the breeding methodologies or conservation Therefore, it would appear that national applicant during a loan period that can education programs to China. Since panda rescue regulations or policy be attributed to the loan should be based there are a number of pandas owned by similar to those used in Sichuan were in on ownership of the panda, and should entities outside of China, this proposed effect at least by February 20, 1993. be used for specific areas of policy includes references not only to This policy proposes that pandas conservation. If the panda is owned by China but also to lending institutions in removed from the wild prior to China, at least 80 percent of net profits other countries. The proposed policy December 31, 1986, would be must be used to fund in-situ would continue to prohibit the use of considered for an import loan. This date conservation projects in China’s pandas in animal acts or shows. approximately follows the peak of National Plan. Remaining funds would Wild-Taken Pandas bamboo die-off in about 1983 by 3 years, be used for panda conservation, allowing a period during which pandas including additional in-situ In the past it has been suggested that might still have been affected by that conservation projects, education, and/or giant pandas have been recovered (i.e., event. It appears the Chinese have captive-breeding efforts in China. If the ‘‘rescued’’) from the wild without established even greater restrictions on panda is owned by an entity other than sufficient justification, and that such the rescue of pandas since then. China, at least 50 percent of the funds removals were necessary for survival of Therefore, the Service generally would must be used to fund in-situ the species in the wild. The increased not consider any import of pandas conservation projects in China’s international demand for captive giant removed from the wild after December National Plan. Remaining funds would pandas may have provided incentives 31, 1986, unless the circumstances of be used for panda conservation, that were misdirected in some the removal clearly indicate that the including additional in-situ instances. The bamboo die-offs of the removal conformed to Chinese conservation projects, education, and/or early 1980’s perhaps stimulated regulations and was in the best interest captive-breeding efforts inside China, misguided and unnecessary removals of of the individual animal and the and/or captive-breeding efforts outside pandas from the wild. species. of China. Specific conservation projects 16492 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices and/or activities to be funded must be Captive Breeding breeding or research activities. Even high-priority projects included in The proposed policy would require temporary loans of pandas to another China’s National Plan or otherwise permittees who import pandas for institution during the non-breeding specifically and thoroughly justified. captive-breeding purposes to participate season would not be allowed, as this The applicant would be required to actively in a coordinated international could be disruptive to behavioral provide a complete monitoring plan to panda conservation effort. Breeding interactions, endocrine monitoring, and track disbursement of funds and loans need to benefit panda research designed to maximize breeding success. progress of projects. Instead of outlining conservation by supplementing the exact requirements, the Service With advances in coordinated breeding program in China to achieve a proposes that monitoring plans contain international conservation efforts for the self-sustaining captive population. components that would clearly show giant panda, the Service proposes that Since many of the pandas to be that the projects to be funded will be institutions in the United States focus imported into the United States for completed. This should include their energies on activities with captive breeding would have a history of not identification of specific projects with pandas that best ensure their recovery. reproducing, it is anticipated that there timeframes given for tasks to be The Service recognizes that the use of will be a research component to the completed, and a plan outlining how any of these animals for short-term captive-breeding activities. progress would be documented and how exhibition could detract from the overall If the panda would also be on public some site inspection would occur. captive conservation efforts by display, the applicant must have a China has recently agreed to these stimulating institutions to use resources monitoring plan to ensure that the components when working with several for short-term exhibition, rather than groups in the United States. The Service display does not interfere with the committing resources to needed captive would monitor the progress by requiring breeding program. breeding or research. Furthermore, the the permittee to submit at least an Exhibition use of breeding age pandas for short- annual report of funds transferred and term exhibition loans could increase the To date, almost all of the loans of status of projects funded and stress and reduce acclimation of pandas giant pandas to the United States have implemented. to breeding surroundings while The Service also proposes that a been solely for short-term exhibition minimizing the opportunities for summary of projects to be funded would purposes and the generation of funds for important research and captive-breeding be published in the Federal Register as conservation and captive-breeding activities. Thus, in this alternative the part of the public review process when activities in China. Funds from the loan Service proposes to discontinue the an application is received for a permit of one captive panda from the United issuance of permits for the import of to import a giant panda. Kingdom were used to improve facilities pandas for solely exhibition purposes for that animal while at Chapultepec (even though such exhibits might raise Scientific Research Park Zoo in Mexico City. substantial funds to go back to China); The Service proposes that import The Service anticipates import every panda loan would be required to applications for scientific research applications that include public display have intrinsic conservation benefits in outline how the research would would contain a component to educate its own right, in addition to financial contribute to the conservation of the the public in the United States about the contributions to China. panda in the wild and in captivity. The ecological roles and conservation needs Alternative 2—Short-term Exhibition. proposed policy requires that the of the giant panda, but this in and of In this alternative, the Service would applicant provide a research proposal itself would not be considered to meet issue permits for the import of giant that demonstrates that the research is the requirement under the Act of pandas not only for activities as properly designed and can be enhancing the survival of the giant described in alternative 1, but also accomplished with the available panda in the wild. If the applicant solely for short-term exhibitions under expertise and resources. The Service proposes to develop panda conservation specific conditions designed to raise will not categorize or identify education programs that would be funds to be returned to China. acceptable kinds of research but will transferred to China, the Service would Exhibition loans could provide retain the option of judging the validity consider this component as possibly significant funding in support of and/or current need of the proposal meeting part of the enhancement conservation projects for pandas in the based on priorities given in a requirement. The Service emphasizes wild, but the Service is still considering coordinated international panda support for education in China because whether such loans would in any way conservation effort and in China’s there appears to be a need for have a detrimental affect on pandas in National Plan. educational programs in areas near giant the wild, or would detract from captive- If the panda would also be on panda habitat and reserves to enhance breeding or research efforts. exhibition, the applicant must have a panda conservation. Greater revenues for panda monitoring plan to ensure that the The Service proposes two alternatives conservation might be likely from display does not interfere with the on exhibition and invites public exhibition loans because of higher research or bias the data. comment. visitation rates for shorter periods of To the extent possible, the Service Alternative 1—Exhibition Solely as an time, and because viewing opportunities would expedite permit applications for Ancillary Component. Under this might occur at facilities that might biological samples under certain alternative, which would be consistent otherwise not be able to qualify for conditions. The researcher needs to with the AZA moratorium on short-term scientific research or captive-breeding keep in mind that under CITES export panda loans, import of pandas solely for purposes. Some concerns expressed in permits are only valid for 6 months and exhibition loans would not be allowed. the past about exhibition loans, such as import permits for 1 year. Authorization Educational display would only be the lack of a studbook and the lack of under the Act may be granted for 4 allowed as an ancillary component of a project priorities, have been addressed, years, but then would need to be captive-breeding and/or scientific and other concerns about accountability published in the Federal Register for research program, when the display and the lack of a master breeding plan public comment before renewal. would not interfere with the captive- are being addressed. Nevertheless, there Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16493 remain concerns that short-term loans expenses that could be deducted to Public Comments Solicited could in some way affect breeding, calculate net profit, and items that The Service requests comments on stimulate take of additional pandas from would not be considered reasonable this proposed policy. The final decision the wild, and/or detract from efforts to expenses. Another is that the applicant on this proposal will take into support overall captive-breeding efforts. would need to submit a certified consideration the comments and any Such loans emphasize the purely statement from a reputable, independent additional information received, and financial benefits that may be gained accounting firm that the internal such consideration might lead to a final from exhibition, rather than any accounting system meets the policy that differs from this proposal. intrinsic benefit from the loan itself. requirements of Service policy for While there is no available evidence tracking funds. Required Determination that the import of pandas of pre- This document was not subject to breeding ages, as allowed by the Suitability of Facilities Office of Management and Budget previous policy, had subsequently had a CITES and the regulations under the review under Executive Order 12866. detrimental effect on their breeding, Act require that the evaluation of an The information collection requirements AZA has suggested that the loan of only application for an import permit identified in this policy as part of the male pandas would further minimize includes consideration of whether the permit application have been approved the effects of loans on breeding. The applicant is suitably equipped to house by the Office of Management and Service agrees with the AZA suggestion and care for the animals to be imported. Budget under the Paperwork Reduction and proposes that if the final policy The proposed policy continues to allows any short-term exhibition loans, Act, 44 U.S.C. 3501 et seq. and assigned require the applicant to demonstrate it clearance number 1018–0022. they would be limited to young, pre- has acquired available information on reproductive age male pandas. The Service has determined that this giant panda care and facilities, and proposed policy is categorically With regard to the possible removal of training for involved keepers, as well as pandas from the wild, projections have excluded under Departmental approval by the Chinese of the quality procedures from complying with the changed in that: (1) China in recent of the facilities. Although these years has taken a firm position on National Environmental Policy Act requirements would enable an capture of pandas from the wild, (2) the (NEPA) (516 Departmental Manual, Ch. evaluation of the applicant’s initial Service’s proposed policy continues not 2, Appx. 1, paragraph 1.10). An abilities to house and care for giant to allow the import of any pandas that Environmental Action Memorandum is pandas, the Service now feels that were removed from the wild after 1986, on file at the Service’s Office of additional assurances are needed except in unusual yet justifiable Management Authority in Arlington, regarding the long-term care and health circumstances, and (3) the studbook Virginia. of the animals. Therefore, under this allows for a check on parentage of any proposed policy applicants would be Proposed Revised Policy on Giant captive-bred pandas. Panda Loans Finally, with regard to possible required to develop a protocol for disruption of efforts to maximize the monitoring the continued health and Before any import permit will be breeding potential of the captive behavior of giant pandas throughout the issued, the application must be population, the Service notes: (1) That loan period, or to describe an existing reviewed in terms of the applicable the Chinese have been developing a protocol that will be used for this requirements of CITES and the Act by captive-breeding plan, (2) the Chinese purpose. the Service’s Offices of Management and are supportive of AZA’s efforts to Transfer of Pandas to Other Entities Scientific Authority. Issuance of an augment captive-breeding efforts within the United States import permit under CITES requires through research and emphasis on non- prior findings that: (1) The proposed reproductive pandas, and (3) the zoo Before a giant panda is transferred import would not be for purposes community has shown increasing between facilities within the United detrimental to the survival of the interest in supporting long-term captive- States, the recipient must obtain an species; (2) the import would not be for breeding efforts, although the expense of interstate commerce permit under the primarily commercial purposes; and (3) constructing suitable facilities might Act. The Service would, to the extent the permit applicant is suitably exclude some zoos from participating in possible, facilitate the transfer of equipped to house and care for the such long-term loans. animals when it is part of a coordinated animals. Issuance of a permit under the If after reviewing the comments and breeding program. The transfer of Act requires prior determinations that, information received from this notice, animals must also have the prior among other things: (1) The import the Service concludes that short-term approval of China or the entity that would be for scientific purposes or to exhibition loans would not be allowed, owns the panda. The number of times enhance the propagation or survival of the Service would likely review this an individual panda is transferred the species, in a manner consistent with aspect of the panda policy again after within the United States would be the purposes and policies of the Act; accumulating or four or five years’ closely monitored to protect the overall and (2) issuance of the import permit experience and data under the new health of the animal. would not be likely to jeopardize the policy. Response to the CITES Secretariat’s continued existence of the species. Views on Giant Panda Loans These requirements are further Primarily Commercial Purposes implemented by application Giant panda loans must be for The text of the 1991 policy is not requirements and issuance criteria purposes that are not primarily significantly changed in the proposed found in 50 CFR 13.12, 17.22, 23.14, commercial. This proposed policy does revised policy. The requirement of and 23.15. In addition, Section 9(d) of not reflect a significant change from the permits under the Act is clarified as the the Lacey Act, with regulations at 50 previous policy since the requirements pre-Act exemption (Section 9(b) of the CFR 14, Subpart J, requires that of CITES have not changed, but there Act) does not apply to animals to be shipments of live wild mammals being are a few additions. One of the proposed transferred under a lease-hold shipped to the United States are done changes is a description of reasonable agreement. under humane and healthful conditions 16494 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices such that the animals arrive alive, of habitat conditions, of population 1. Whenever funding is associated healthy, and uninjured. The policy density, or other reasons provided with the import of giant pandas, the requires the applicant to demonstrate clearly precluded reintroduction of the following must be satisfied: that the animals will be shipped so as animal(s). (a) Net profits are to be allocated as to satisfy this requirement. follows: Age and Other Parameters of Animals • Purposes Available for Loans If the animals are owned by China, at least 80 percent of the funds are to be The primary goal of the policy is to 1. Pandas over 20 years of age will not used for in-situ conservation projects for ensure that all imports of giant pandas be considered for an import permit the giant panda and its habitat in China contribute toward the survival, and because they are probably beyond as listed in China’s National Plan. The ultimately the increase to a self- breeding age, and the risks from the remaining funds must be used to sustaining level, of panda populations stresses of travel are not biologically support conservation, including in the wild. All imports must be part of acceptable. additional in-situ projects, education a coordinated international panda 2. For alternative 1 in the and/or breeding efforts for the giant conservation effort, a term used in this ‘‘Exhibition’’ Section, pre-breeding age panda in China. In the event that profits policy to mean an organized plan pandas will not be considered for an generated exceed the ability of the through which all giant panda imports import loan. This would include Chinese to apply the monies to priority support high priority projects in China’s females under 4 years of age, and males projects or captive-breeding in China at National Plan and are coordinated with under 5 years. Even though it is any one point in time, then funds may China’s captive-breeding plan and expected that captive-breeding loans be used to support breeding efforts for AZA’s SSP or other applicable multi- will concentrate on the use of pandas the giant panda outside China with national breeding plans. The Service that have not been successfully bred in approval from the Service. anticipates that most import permit China (or elsewhere), there may be • If the animals are owned by an applications will be for multiple situations in which females within 6 entity other than China, at least 50 purposes. Applicants must identify the months of their first estrus would be percent of the funds are to be used for primary purpose for the proposed considered to allow a pre-breeding in-situ conservation projects for the import and all other intended purposes. period of acclimation of a pair. giant panda and its habitat in China as No activities for additional purposes 3. In alternative 2, only pre-breeding listed in China’s National Plan. The may be undertaken during the course of age male pandas from the age of 2 to 5 remaining funds must be used for panda the loan without approval from the will be allowed for short-term conservation, including additional in- Service. exhibition loans. situ conservation projects, education, or The ultimate objective of managing • Only male pandas that are captive-breeding efforts in China, and/or captive pandas should be for breeding independent of maternal care but are captive-breeding efforts outside of China and research purposes, and any training not yet of breeding age or approaching as part of a coordinated international or use of pandas in animal acts would breeding age will be allowed to be panda conservation effort. be considered as detracting from this imported. Specifically, this include (b) Conservation projects to be funded objective. Therefore, use of pandas in males at least 2 years of age at the must meet the following conditions: animal acts or shows during the loan beginning of a loan period and under 5 • They must be included in a period would be prohibited by years at the end of a loan period. coordinated international panda condition of the permit. • No pre-reproductive female pandas conservation effort, or compelling Wild-Taken Pandas or breeding age giant pandas of either reasons must be given for funding other The following guidelines will be used sex will be considered for short-term projects. Preferably, any conservation or to evaluate import applications loans, even during the non-breeding breeding plan cited as including involving pandas removed from the season. projects to be funded should be formally approved by China’s Project Office of wild. These time constraints are based Length of Loans on information available to the Service MOF or the appropriate entity in suggesting that the removal of pandas The Service will evaluate the length another country, but plans or programs from the wild has increasingly come of time requested for the proposed loan that have not been officially approved under control by the Chinese, starting to ensure it is appropriate to the will be considered. • prior to the WWF Plan of August 1989. proposed activity. For example, if the They must be considered to be of In all cases, the Service will continue primary purpose of the import would be high priority in the most recent its policy of approving import permit for captive breeding and/or research, the coordinated international panda applications only when it is sure that length of the loan should be of sufficient conservation effort. the loan did not, or will not, contribute duration to accomplish the stated goals. • They must be described as to the removal of pandas from the wild. Generally it is anticipated that such specifically as possible, with funding 1. Pandas removed from the wild activities may require 3 to 5 years, or allocations to specific tasks given in prior to December 31, 1986, will be perhaps a longer time for the maximum foreign currency (e.g., yuan) and in U.S. considered for an import permit. benefit to captive-breeding activities in dollars, and projected timeframes given 2. The importation of pandas removed the United States. for use of the funds to initiate and from the wild after December 31, 1986, complete specific projects or activities. Conservation Benefits of Specific will not be considered, unless (c) The applicant must provide a plan Projects information describing the to monitor the disbursement of funds for circumstances of their removal clearly All of the net profits resulting from selected conservation projects or indicates that the Rescue Procedures the import are to be used for activities. The plan needs to be were followed, that the animal(s) was conservation of the giant panda and its sufficiently complete so that the Service malnourished, ill, or injured to a degree habitat. Emphasis is on in-situ is satisfied of its effectiveness and that that justified its removal, and that conservation projects as listed in the projects to be funded will be circumstances of the animal’s recovery, China’s National Plan. completed. Such a monitoring plan Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16495 should include provisions equivalent to • Estimated timeframes need to be (3) If live pandas are going to be on the following: given. exhibition at any time during the term • Before funds are transferred to the • Research must not be duplicative of the research loan, the following must appropriate office in China or the unless it is a collaborative effort, or if be satisfied: lending entity, the permittee and the repetition can be justified. • The applicant must provide appropriate foreign entity should agree • The results of the research would be protocols outlining how the research on a detailed budget, work plan, and expected to identify, evaluate, or resolve and exhibition will be monitored to timetable for project completion. panda conservation problems or ensure that having the pandas on Specific, measurable objectives and a contribute to the basic knowledge of exhibit is not interfering with the schedule for progress reporting should panda biology and ecology deemed research or biasing data. The applicant important to the survival of the panda. must also provide the name, position, be identified for each project. • • Payments should be made in The results would likely be and qualifications of the individual who installments. Each payment needs to be published in a scientific journal. will be responsible for making the (2) For research with live pandas, the linked to actions taken toward decision to take the pandas off of exhibit applicant must have the expertise and completion of the project(s). if the display is interfering with the resources to accomplish the stated • Subsequent payments should be research. objectives. • contingent on approval of progress The applicant must have adequate • Enhancement may be satisfied facilities to conduct the research and reports by the permittee. solely through scientific research if it • An independent audit should be house the pandas separate and apart can be convincingly shown that results from the public exhibition areas in case conducted annually to verify will be used to study and/or manage it is found that exhibition interferes disbursement of funds. • giant pandas in a way that would with the research. The permittee, its authorized contribute to their conservation in the • The funds generated by the representative, and the Service must wild. It is expected that requests to exhibition must be used for have permission from the implementing import live pandas for scientific conservation projects. agency to examine records and to make research will also include other, (4) For research involving biological site visits to funded projects at least additional enhancement activities, such samples, the applicant must have the annually. as the generation of funds for panda expertise and resources to accomplish 2. Annual reports to the Service will conservation in the wild. the stated objectives. be required, which should give an • Research must be recognized as a • Salvaged specimens (i.e., those accounting and report of funds high priority activity by a coordinated obtained from animals that have died of transferred and portions of the project international panda conservation effort. natural causes; naturally shed hair) completed (see section under ‘‘Primarily • Proposals must describe how the must be obtained without harassing any Commercial Purposes’’ for further study may contribute to the live animals, and collection must be reporting requirements). Copies of conservation of the giant panda in the authorized by the MOF, MOC, or the reports received by the applicant from wild. If in situ, the research must be a Project Office. the recipient of funding should be collaborative effort with Chinese • The collection of samples from live included, with English translations if scientists. If the research is ex situ, the captive giant pandas must be done by reports are not in English. applicant must describe why it is best qualified personnel, preferably 3. As part of the notice of receipt of conducted outside China, and how any veterinarians, with appropriate training a permit application published in the information gained or methodologies and experience in capture, restraint, and Federal Register for public comment, developed will be transferred for use in sample collection, so as not to result in the Service will describe the specific China, including estimated timeframes death or injury of animals. Sampling projects the applicant is proposing to of transfers, training, or collaborative must also be done in a manner that fund. efforts. would not be disruptive to breeding • Scientific Research Any physically invasive procedures activities. The collection and to be used or any behavioral subsequent export of such samples to There is a great need for scientific modifications anticipated as part of the United States must be done in research on the giant panda, both in the research activities must be described, cooperation with the authority wild and in captivity. The research must together with a detailed plan describing responsible for managing the animals contribute to the conservation of the how the applicant would respond to (e.g., MOC). panda and typically, when part of an and minimize complications that might • Any collection of biological import loan, must provide a source of arise. Any subsequent procedural samples from live giant pandas in the funds for panda conservation in the changes and/or additions must be pre- wild must be authorized by the MOF. wild, as described below. approved by the Service. Generally, only samples that were (1) The applicant must provide • The permittee must provide an collected incidental to the capture of information to show that the research is annual report summarizing research animals for other purposes by MOF bona fide, meaning research that is activities associated with the purposes biologists will be considered for import. properly designed and can be of the permit, including a brief However, the import of samples taken accomplished with the expertise and description of each project, a copy of from animals captured for the sole resources available: protocols developed and methodologies purpose of collecting samples for import • Objectives and goals must be clearly used, a summary of data collected with will be considered if the samples are to defined. Hypotheses and experimental a discussion of results and copies of be used in research that is expected to designs, when applicable, intended to published papers resulting from the have a substantial benefit to giant panda test them must be described. research. The report should also conservation. In this case, import • Investigative procedures and indicate any transfer of research permits must be obtained prior to the research protocols must be described in protocols or methodologies to the collection of the samples. Samples from detail or referenced as published in a Chinese and their use in China, in the live wild giant pandas may only be recognized journal. wild or in captivity. collected by qualified personnel, 16496 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices preferably veterinarians, who have • Enhancement may be satisfied procedural changes and/or additions appropriate training and experience in through captive-breeding if it can be must be pre-approved by the Service. capture, restraint, and sampling convincingly shown that results will be • The permittee must provide at least methodologies appropriate to giant used to study and/or manage giant an annual report summarizing breeding pandas, so that sampling is unlikely to pandas in a way that has promise of activities, and research activities, if expose live giant pandas to risk of death contributing to panda conservation. It pertinent, including a copy of protocols or injury, or to disrupt mating or will be expected to include a research developed and methodologies used, a parental care of young. component aimed at increasing summary of data collected with a • The results of research conducted reproductive success if the animals discussion of results, and copies of any with imported specimens must be involved have a history of being non- published papers. The report should reported to the Service at least annually; breeding animals. It is expected that also indicate any transfer of protocols or a report should include copies of any requests to import live giant pandas for methodologies to the Chinese and their scientific publications produced. The captive breeding will also include other, use in China in the wild or in captivity. report must contain information on the additional enhancement activities, such (3) If pandas are going to be on number and type (e.g., blood, hair, skin as the generation of funds for panda exhibition at any time during the biopsy) of samples imported, specific conservation in the wild. captive-breeding loan: source/location from which each sample • If research is a component, the • The applicant must provide was collected (if more than one was applicant must provide information to protocols outlining how the captive authorized), and observations on the show that the research satisfies the breeding, its research component, when effects of sampling on the animals. The requirements of this policy concerning applicable, and exhibition will be report must also state whether the scientific research. The research must be monitored to ensure that having the research resulted in the development recognized as a high priority activity by pandas on exhibit does not interfere and transfer of research protocols or a coordinated international panda with captive breeding and/or its other methodologies to the Chinese and conservation effort. research component. The applicant how these products have been/will be • The proposed captive-breeding must also provide the name, position, used in China for the conservation of must be part of a coordinated and qualifications of the individual who giant pandas. international panda conservation effort will be responsible for making the • The Service will consider the designed to complement conservation decision to take the pandas off of exhibit issuance of general permits for the efforts for the wild panda population, if the display is interfering with the import and export of biological samples with the applicant actively participating captive-breeding or its research. when the applicant provides sufficient in the plan. • The applicant must have adequate information to show the conditions • The breeding loan must facilities to conduct the captive outlined in this policy are met and as demonstrate how it will contribute to breeding and its research component, long as complete annual reports are the preservation of the panda’s gene when applicable, and to house the submitted in a timely manner. pool (i.e., retention of maximum genetic pandas separate and apart from public • The import or export of urine, feces, diversity). The choice of individuals to exhibition areas, in case it is found that and synthetic DNA, when collected in a be imported should be based on the exhibition interferes with the manner that does not involve the scientific management of the captive captive breeding or its research. capture, detention, or killing of populations with genetic and • The funds generated by the protected wildlife, does not require a demographic criteria used to determine exhibition must be used for permit from the Service. The CITES mating pairs. conservation projects as previously Management Authority of any exporting • Proposals must describe how the described. or importing country should be study would contribute to the • The applicant must consent to the contacted to meet any requirements it conservation of the giant panda in the movement, substitution, or transfer of may have. wild or in captivity, and how any any panda to another approved institution if, in the judgment and at the Captive Breeding information gained or methodologies developed will be transferred for use in request of China, such action is needed Breeding loans need to benefit panda China, including estimated timeframes to maximize successful captive-breeding conservation by supplementing the of transfers, training, or collaborative opportunities. breeding program in China to achieve a efforts. Exhibition self-sustaining captive population, and (2) The applicant must provide typically also to provide a source of information to show that he/she has the 1. The import of giant pandas for the funds for panda conservation in the expertise and resources to accomplish purpose of educational exhibition alone wild. There is a need to maximize the the stated objectives: would not be sufficient to satisfy use of pandas currently held in captivity • The applicant must submit a enhancement requirements. The Service that are not essential to China’s breeding detailed breeding protocol that outlines encourages institutions importing giant program. It is anticipated many of the when male and females will be paired pandas to educate the U.S. public about animals that may be requested to be for breeding, how females and males the ecological role and conservation imported into the United States will be will be visually and physically needs of the giant panda, but will not ones that have not successfully bred in separated and/or managed together, consider this in reviewing applications. China, and the policy emphasizes the with layout of facilities and protocols However, if an applicant is developing need to have a research component to for rearing potential young. a panda conservation education identify how these individuals may best • Imports of frozen sperm for use in program that would be transferable to contribute to the breeding component in captive breeding must be done in China, or is developing a program China. accordance with a coordinated specifically for use in China, (1) The applicant must provide international panda conservation effort. particularly in localities near giant sufficient information to demonstrate • Artificial insemination or any other panda habitat and reserves, the Service the importance and necessity of physically invasive procedures must be will consider this project as part of a importing pandas for captive-breeding: described, and any subsequent coordinated international conservation Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16497 effort in making its enhancement • There may be some commercial conservation projects in China and, as finding. aspects of that use, but the non- such, costs associated with ordinary • Educational programs in China commercial uses must predominate in operations, such as advertising, general should be aimed at local people, school order to be deemed primarily non- personnel costs, general legal expenses children, panda researchers (field and commercial. (not directly related to the panda loan), captive), reserve biologists, and 2. Public, non-profit institutions, will not be considered reasonable managers. organizations and agencies will receive expenses. • Educational activities or projects consideration for panda loans. The • Collection of revenues generated by must be described in detail, including Service’s general regulations at 50 CFR the panda loan by the importing samples of the kinds of educational 10.12 define ‘‘public’’ institutions as institution (e.g., gate receipts, food and materials to be used, and a description those that ‘‘* * * are open to the drink sales, tourist souvenirs), either for of evaluation methods. general public and are either its own use or for the use of other • The messages conveyed through the established, maintained, and operated organizations, for purposes other than educational program should stress as a government service, or are privately those previously described, would be historical and contemporary impacts on endowed and organized but not judged to be a primarily commercial the status of the giant panda in the wild, operated for profit.’’ Although activity, as would the use of revenues and conservation efforts that might be commercial (profit-making) for profit-making purposes. required to halt the species’ decline and organizations may also choose to apply 4. Each applicant for a panda loan, in degradation of its habitat. for such loans, the profit-making satisfying the applicable requirements of 50 CFR subchapter B, should submit a 2. Alternative 1—Exhibition Solely as characteristics of such organizations detailed plan for the allocation of all an Ancillary Component. Educational will make it more difficult for the funds raised in excess of expenses, as a displays would only be allowed as an Service to find that the specimen(s) result of the panda loan. The ancillary component of a captive- proposed for import is not to be used application must also include a breeding and/or research program. primarily for commercial purposes. As certification statement from a reputable, Specifically, the import of pandas solely in all cases, the burden rests with the independent accounting firm stating for exhibition loans of any length would applicant to show that this CITES requirement is satisfied. Of necessity, that the applicant’s internal accounting not be allowed. the burden of proof will be higher for system is sufficient to account for and 3. Alternative 2—Short-term commercial enterprises than for non- track funds generated directly or Exhibition. For purposes of this policy, profit entities. indirectly by the panda loan, and for the the import of pandas for short-term 3. It is the Service’s policy that all subsequent disbursement of funds. exhibition loans would be allowed funds or other valuable considerations 5. Each recipient of a permit to obtain under certain conditions: a panda loan shall be required, in • raised directly or indirectly by a public A panda can only be on loan for institution or other organization that are accordance with 50 CFR 13.45, to short-term exhibition for a maximum of obtained by the organization(s) or submit an annual report to the Service 1 year. institution(s) involved (or any for-profit as a condition of the permit. The annual • During a single 1-year loan period parent organization of the applicant, but report must contain a full accounting of in the United States, up to 3 different not including unrelated private entities, all funds raised directly or indirectly by institutions may receive and display the such as hotels, not associated with the the institution or organization, the pandas for periods of at least 3 months, applicant) as a result of the panda loan portion of those funds that is in excess unless health considerations dictate are, to the extent that such funds or of expenses, and what portion of these otherwise. other valuable considerations exceed funds are to be disbursed for giant • Each institution following the first the reasonable expenses that are panda conservation projects or activities in the sequence of exhibitions must properly attributable to the exhibitions, as outlined in the prior section, have submitted complete application to be used entirely for the non- ‘‘Conservation Benefits of Specific materials as well as written commercial purposes outlined in the Projects’’. authorization from the exporting prior section, ‘‘Conservation Benefits of • The report must include names of country’s Management Authority and, if Specific Projects’’. people involved, location of the from China, from the Protecting Giant • Reasonable expenses include the activities, a brief description of each Panda Project Office. following: Facility construction if project, and the amount and use of amortized for the entire proposed length Primarily Commercial Purposes money being provided the project. The of the loan (but not for short-term report must also identify specific costs With regard to the determination of exhibition loans), facility maintenance, that were deducted as reasonable whether a loan of giant pandas is not to direct labor and operating supplies expenses. be used for primarily commercial needed for the care of the pandas • Conservation projects other than purposes, the Service will utilize the (includes keeper and veterinary those projects presented in the following policy. support), administrative support application must receive approval from 1. Resolution Conf. 5.10 of CITES directly associated with the the Service’s Office of Management provides that: maintenance of the animals, security Authority prior to allocating funds. • The nature of the transfer of needed for the pandas, development of These policy considerations will be specimens between the owner in the educational materials for use in China, used by the Service only for country of export and the recipient in development of educational signs for determining whether panda imports are the country of import may be exhibits in the United States, and primarily commercial in nature. They commercial. It is the intended use of the supplies or materials necessary to are not intended to apply to Appendix specimens in the country of import that conduct research or captive-breeding I import permit applications for other must not be for primarily commercial activities that have been identified in species. All such applications must purposes, and it is the responsibility of the application. continue to demonstrate that the the recipient country’s Management • It is the intent of the policy to proposed import meets the general Authority to make this determination. maximize funds going back to requirements of resolution Conf. 5.10 to 16498 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices satisfy the ‘‘not to be used for primarily to another entity within the United addition, even if a valid pre-Convention commercial purposes’’ test. States should indicate this in the initial certificate is issued by the exporting import application. The proposed country, an import permit would be Suitability of Facilities and Care recipient of the panda will need to required under the Act for all panda Under CITES, the Service must be apply for and receive an interstate loans (and an export permit, if the ‘‘satisfied that the proposed recipient of commerce permit under the Act prior to pandas are to leave the United States), a living specimen (to be imported) is the transfer since the pandas are being even for pandas acquired prior to suitably equipped to house and care for held under a loan (e.g., lease-hold January 23, 1984 (the date of the final it’’. Under the regulations implementing agreement) from China or other lending Federal Register notice listing the giant the Act, the Service must determine that entity. The proposed recipient of the panda under the Act), as the pre-Act the applicant has ‘‘* * *the expertise, panda needs to provide all the exemption (Section 9(b)(1) of the Act) facilities, or other resources* * *to information required by the Act, its does not apply to animals that are successfully accomplish the regulations, and this policy. The Service subsequently held in the course of a objectives* * *’’ To aid in satisfying will facilitate, to the extent possible, the commercial activity (e.g., lease-hold these requirements, applicants must transfer of animals within the United agreement). provide the following information in States when part of a coordinated The Service will also continue its addition to the information required in breeding program. If the receiving policy of approving applications only if 50 CFR 17.22: institution has a panda permit on file it is sure that the proposed loan did not, • Copies of protocols for monitoring with the Service, it can reference the or will not, contribute to removal of general health and behavior. In lieu of permit number and information in this pandas from the wild, and that the non- new protocols, an applicant may submit file, and provide any new information commercial purposes for the proposed copies of protocols recommended by a for the Service to review in loan predominate. coordinated international panda consideration of an interstate commerce This notice was prepared under the conservation effort. permit. These applications will be authority of the Endangered Species Act • Diagrams and photographs clearly published in the Federal Register, and of 1973, as amended (16 U.S.C. 1531 et depicting all enclosures where the so the applicant will need to allow at seq.). panda may be housed, including any least 90 days for processing. Such Dated: February 21, 1995. off-exhibit areas and panda holding transfers must also have the prior area(s) in relation to other facilities, approval of China or the entity that George T. Frampton, Jr., including roads adjacent to such areas. owns the animals. The number of times Assistant Secretary for Fish and Wildlife and • Information to demonstrate the an individual panda is transferred Parks. applicant has consulted with at least within the United States will be closely [FR Doc. 95–7851 Filed 3–29–95; 8:45 am] two other facilities that have monitored to protect the overall health BILLING CODE 4310±55±P successfully held pandas in recent and well-being of the animal. years, that the applicant has facility Response to the CITES Secretariat’s features that address the National Views on Giant Panda Loans DEPARTMENT OF INTERIOR Zoological Park’s recommended measures for giant panda care and The Service notes with approval the Fish and Wildlife Service facilities, and that zoo staff, especially recommendation of the Secretariat that keepers and veterinarians, have had no exemptions be granted to the Letters of Authorization to Take Marine proper training and experience to care requirements of Article III of the Mammals for pandas. Convention for the shipment of giant • Approval of facilities by the pandas, even for animals that might AGENCY: Notice of issuance of Letters of Chinese or appropriate authority in the otherwise qualify for an exemption as Authorization to take marine mammals lending country, if such a stipulation ‘‘pre-Convention’’ animals under Article incidental to oil and gas industry has been made in a contractual VII. However, the Service does not have activities. agreement. If approval has not been authority under U.S. law to refuse to SUMMARY: In accordance with Section given prior to applying for the permit, accept a valid pre-Convention 101(a)(5) of the Marine Mammal there must be a statement from the certificate. If the Management Authority Protection Act of 1972, as amended, and applicant certifying that the agreement of the country of origin or of the country the U.S. Fish and Wildlife Service stipulation will be satisfied before of re-export does not issue a pre- implementing regulations (50 CFR animals are imported. Convention certification, the Service 18.27), notice is hereby given that will require a U.S. import permit and Letters of Authorization to take polar Transfer of Pandas to Other Entities export permit or re-export certificate, as bears and Pacific walrus incidental to Within the United States appropriate, from the exporting or re- oil and gas industry exploration Applicants proposing to import giant exporting country in accordance with activities have been issued to the pandas and subsequently transfer them Article III of the Convention. In following companies: Company Activity Date issued Western Geophysical ...... Exploration ...... Jan. 3, 1995. Schlumberger GecoÐ Exploration ...... Jan. 3, 1995. Prakla. ARCO Alaska, Inc...... Exploration ...... Feb. 1, 1995. BP Exploration (Alaska) Inc., (BPX) Authorization to incidentially take polar receipt of an annual monitoring report. and ARCO Alaska, Inc., (ARCO) were re- bears and walrus during development BPX is authorized to incidentally take issued reoccurring Letters of and production activities based upon polar bear and walrus in the Prudhoe Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16499 Bay, Endicott and Milne Units. ARCO is $100,000 and/or imprisonment not to entry under the United States mining authorized to incidentially take polar exceed 12 months. laws. Appropriation under the general bear and walrus in the Kuparuk River Dated: March 24, 1995. mining laws prior to the date and time Oilfield. Monitoring reports have been Maureen A. Merrell, of restoration is unauthorized. Any such received and are on file at the Marine attempted appropriation, including Assistant District Manager, Administration/ Mammals Management Office. Acting District Manager. attempted adverse possession under 30 U.S.C. 38, shall vest no rights against FOR FURTHER INFORMATION CONTACT: Mr. [FR Doc. 95–7810 Filed 3–29–95; 8:45 am] the United States. Acts required to David McGillivary or Mr. John W. BILLING CODE 4310±32±P Bridges at the U.S. Fish and Wildlife establish a location and to initiate a Service, Marine Mammal Management right of possession are governed by State Office, 1011 East Tudor Road, [USFS, R±6, 595053; GP5±089; OR±51080] law where not in conflict with Federal Anchorage, Alaska 99503, (800) 362– law. The Bureau of Land Management 5148 or (907) 786–3810. Order Providing for Opening of Land; will not intervene in disputes between Oregon SUPPLEMENTARY INFORMATION: All Letters rival locators over possessory rights of Authorization were issued in AGENCY: Bureau of Land Management, since Congress has provided for such accordance with U.S. Fish and Wildlife Interior. determinations in local courts. At 8:30 a.m., on April 28, 1995, the Service Federal Rules and Regulations ACTION: Notice. land will be opened to applications and ‘‘Marine Mammals; Incidental Take offers under the mineral leasing laws During Specified Activities’’ (58 FR SUMMARY: This action will open 106.70 and the Geothermal Steam Act. 60402; November 16, 1993). acres of Federal land within the Winema National Forest to surface Dated: March 15, 1995. Dated: March 16, 1995. entry, mining, mineral leasing and Robert D. DeViney, Jr., Rowan W. Gould, geothermal, subject to the laws, rules, Acting Chief, Branch of Realty and Records Acting Regional Director. and regulations applicable to National Services. [FR Doc. 95–7807 Filed 3–29–95; 8:45 am] Forest System lands. The land has been [FR Doc. 95–7758 Filed 3–29–95; 8:45 am] BILLING CODE 4310±55±M eliminated from a Forest Service BILLING CODE 4310±33±P exchange proposal. EFFECTIVE DATE: April 28, 1995. [CA±010±05±1430±01: CA±35288] DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Pamela Chappel, BLM Oregon/ Bureau of Land Management Notice of Realty Action; Land Use Washington State Office, P.O. Box 2965, Lease of Public Lands, Amador (AZ-050±05±1230±00; AZA 23275) Portland, Oregon 97208, 503–952–6170. County, California SUPPLEMENTARY INFORMATION: Arizona; Recreation Area Closure Notice is hereby given that pursuant to the AGENCY: Dept. of the Interior, Bureau of AGENCY: Bureau of Land Management, Land Management. Interior. General Exchange Act of March 20, 1922, (16 U.S.C. 485, 486), the Federal REALTY ACTION: Land Use Lease, Amador ACTION: Notice of closure. Land Policy and Management Act of County, CA 35288. 1976, (43 U.S.C. 1716), and the Federal SUMMARY: Notice is hereby given that SUMMARY: The following described the Bureau of Land Management is Land Exchange Facilitation Act of August 20, 1988, (43 U.S.C. 751), the public land is being considered for a closing an area, until further notice, of non-competitive, 20-year, residential, public land known as the Paradise Cove following described Federal land has been eliminated from the initial land use lease pursuant to Section 302 Boat Ramp Recreation Area, or Joe of the Federal Land Policy and Henry Boat Ramp, located on the exchange proposal between the Winema National Forest, 2819 Dahlia Street, Management Act of October 21, 1976 Colorado River in Yuma County, (43 U.S.C. 1713): Arizona. The area affected by this Klamath Falls, Oregon 97601–7119, and closure contains 35 acres, more or less. the G Bar W Land & Cattle Company, Amador County, California Medford, Oregon: San Bernardino Meridian, Arizona T. 6N., R. 12E., M.D.M. Willamette Meridian Sec. 9: Portion of lot 35. T. 16 S., R. 22 E., Comprising .011 acre, more or less. Sec. 28, lots 2, 5, and 6, portion of S1⁄2S1⁄2. T. 38 S., R. 5 E., Sec. 11, lots 3 and 4, NW1⁄4SW1⁄4, and The above parcel of public land EFFECTIVE DATE: Upon first printing in 1 1 1 E ⁄2SW ⁄4SW ⁄4. would be leased to Roy and Karen Federal Register. The area described contains 106.70 acres in Rhoades to resolve a trespass situation. FOR FURTHER INFORMATION CONTACT: Ed Klamath County. The lease would be issued for a term of Perault, Supervisory Outdoor Recreation At 8:30 a.m., on April 28, 1995, the 20 years. The land will be leased at fair Planner, Yuma Resource Area, 3150 land will be opened to operation of the market value. Winsor Avenue, Yuma, Arizona 85365, public land laws generally, subject to The parcel would be subject to any (602) 726–6300. valid existing rights, the provisions of prior existing rights. The lease area will SUPPLEMENTARY INFORMATION: The existing withdrawals, and the include only that area of public land closure is in response to concerns of requirements of applicable law. All which is occupied by a portion of the public health and safety, excessive valid existing applications received at or lessees’ residence. The occupancy to be illegal dumping, and uncontrollable prior to 8:30 a.m., on April 28, 1995, authorized by the proposed land use resource degradation. Future public will be considered as simultaneously lease was formerly authorized by Small access at Paradise Cove Boat Ramp filed at that time. Those received Tract Lease Sac 055095, issued in 1965. Recreation Area will be considered in thereafter will be considered in the The proposal is consistent with the comprehensive planning efforts at a order of filing. Bureau’s land use plans that support the later date. Violations to this closure are At 8:30 a.m., on April 28, 1995, the settlement of trespass by lease when an punishable by a fine not to exceed land will be opened to location and undue hardship case is present. 16500 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices ADDRESSES: Interested parties may resources; and parcel 2 is prospectively 3. Parcel 2, the oil and gas mineral submit comments to the District valuable for oil and gas; therefore, the estate would be reserved to the United Manager, c/o Folsom Resource Area mineral estate of parcel 1, excluding oil States with the right to prospect for, Manager, 63 Natoma Street, Folsom, and gas and geothermal resources; and mine, and remove the same under California 95630. Comments must be the mineral estate of parcel 2, excluding applicable law and such regulations as received by May 15, 1995, which is 45 oil and gas, will be conveyed the Secretary of the Interior may days from date of publication of this simultaneously with the surface estate prescribe, in accordance with public notice in the FEDERAL REGISTER. in accordance with Section 209 of law 94–579, Section 209 of FLPMA (43 FOR ADDITIONAL INFORMATION: Contact FLPMA. Millard County filed an U.S.C. 1719). And will be subject to all Dean Decker at (916) 985–4474 or at the application along with the required valid existing rights and privileges of address above. $50.00 nonrefundable fee for the record and title restrictions including, D.K. Swickard, conveyance of the mineral interest but not limited to: 4. The issuance of these patents Area Manager. specified above. The respective oil and would be subject to the following [FR Doc. 95–7819 Filed 3–29–95; 8:45 am] gas and geothermal resource minerals will be reserved to the United States. indemnification statement signed by the BILLING CODE 4310±40±M Parcel 1 is subject to the existing Millard County Commission: grazing use of Blaine Christensen, ‘‘Millard County, its successors or [UT±050±05±1430±01; U±68990] Dwain J. Finlinson, Reese E. Finlinson, assigns, assumes all liability for and Rich Finlinson, Joseph T. Finlinson, shall defend, indemnify, and save Notice of Realty Action Clark B. Cox, Burton Lovell & Son, harmless the United States and its officers, agents, representatives, and AGENCY: Bureau of Land Management, Sinks Land Company, Monte C. Nielson, Spence Butler, Oak City Ward, and employees (hereinafter referred to in Richfield District. this clause as the United States), from ACTION: Notice of realty action; direct Vance Finlinson, holders of grazing preference on the Oak City Allotment. all claims, loss, damage, actions, causes sale of public lands in Millard County, of action, expense, and liability Utah. The 80 acres proposed for sale produce 4 AUMs or less of the 1,207 AUMs (hereinafter referred to in this clause as claims) resulting from, brought for, or SUMMARY: The following described presently produced on the allotment. on account of, any personal injury, public lands have been examined, and Therefore, approximately 4 AUMs of threat of personal injury, or property through the development of local use the 1,207 AUM grazing preference damage received or sustained by any planning decisions based upon public would be removed from grazing as a person or persons (including the input, resource considerations, result of this sale. patentee’s employees) or property regulations and Bureau policies, have Parcel 2 is subject to the existing growing out of, occurring, or attributable been found suitable for disposal by sale grazing use of Wm. Earl and Sidney directly or indirectly, to the disposal of under Section 203 of the Federal Land Hayward, and Mt. Moriah Ranches Inc solid waste on, or in the release of Policy and Management Act of 1976 (90 c/o David Eldridge, holders of grazing hazardous substances from T. 17 S., R. Stat. 2750, 43 U.S.C. 1713), and direct preference on the Clay Springs 6 W., Sec. 24, N1⁄2SE1⁄4, or from T. 22 sale procedures (43 CFR 2711.3–3(a)(1). Allotment. The 21.13 acres proposed for S., R. 19 W., Sec. 5, Lot 5 ALL, Salt Lake The sale will be at no less than the sale produce 2 AUMs or less of the Meridian, Utah, regardless of whether appraised fair market value of $3,540. 2,635 AUMs presently produced on the such claims shall be attributable to: (1) The lands will not be offered for sale for allotment. Therefore, approximately 2 the concurrent, contributory, or partial at least 60 days after the date of AUMs of the 2,635 AUM grazing fault, failure, or negligence of the United publication of this notice. preference would be removed from States, or (2) the sole fault, failure, or Salt Lake Meridian, Utah grazing as a result of this sale. A negligence of the United States.’’ certified letter was sent to each Parcel 1 Failure of Millard County to submit permittee which served as the 2-year the full purchase price within the time T. 17 S., R. 6 W., notification of the reduction of their Sec. 24, N1/2SE1/4 (Contains 80 acres). allowed will result in cancellation of the respective grazing privilege, pursuant to sale and forfeiture of any deposits. The Parcel 2 43 CFR 2711.1–3. All grazing privileges public lands would be withdrawn from T. 22 S., R. 19 W., on parcel 1 and parcel 2 will expire on sale and Millard County would be Sec. 5, Lot 5 ALL (Contains 21.13 acres). May 4, 1995. The patent will not be required to bring the existing 80 acre Combined, parcels 1 and 2 contain 101.13 issued on or before this date. and 21.13 acre landfill sites into acres. The patent, when issued, will contain compliance with Environmental Publication of this notice segregates the following reservations to the United Protection Agency (EPA) landfill the public lands described above from States: regulations. Otherwise, R&PP lease appropriation under the public land 1. Parcel 1 and 2, a right-of-way UTU–51862 may be terminated. If the laws and the mining laws. The reservation to the United States for lease is terminated the existing landfill segregation will end upon disposition of ditches and canals constructed under site would be closed and Millard this action, or 270 days from the date of the authority of the Act of August 30, County would then be required to publication of this notice, whichever 1890 (26 stat. 391; 43 U.S.C. 945 (1970)). remove all facilities and rehabilitate the occurs first. 2. Parcel 1, the oil and gas and disturbed public lands in accordance This land is being offered by direct geothermal resources mineral estate with EPA and BLM rules and sale to Millard County, Utah, for two would be reserved to the United States regulations. The R&PP classification solid waste disposal sites. Parcel 1 with the right to prospect for, mine, and would terminate. The public lands describes the Delta site and parcel 2 remove the same under applicable law would then continue under the describes the Garrison site. and such regulations as the Secretary of jurisdiction and management of the It has been determined that the the Interior may prescribe, in Bureau of Land Management and subject parcel 1 is prospectively accordance with public law 94–579, become subject to the public land laws valuable for oil and gas and geothermal Section 209 of FLPMA (43 U.S.C. 1719). and general mining laws. Detailed Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16501 information concerning these $50.00 nonrefundable fee for the all claims, loss, damage, actions, causes reservations as well as specific conveyance of the mineral interest of action, expense, and liability conditions of the sale are available for specified above. The oil and gas (hereinafter referred to in this clause as review at the House Range and Warm minerals in the lands shall be reserved claims) resulting from, brought for, or Springs Resource Areas, Bureau of Land to the United States. The described 300 on account of, any personal injury, Management, 35 East 500 North, acres are subject to the existing grazing threat of personal injury, or property Fillmore, Utah 84631. use of Phillip E. Allred, holder of the damage received or sustained by any For a period of 45 days from the date grazing preference on the Stone Quarry person or persons (including the of publication of this notice in the Allotment. A certified letter was sent to patentee’s employees) or property Federal Register, interested parties may the permittee which served as the 2-year growing out of, occurring, or attributable submit comments to the Area Manager, notification of a reduction of his grazing directly or indirectly, to the disposal of House Range and Warm Springs privilege, pursuant to 43 CFR 2711.1–3. solid waste on, or in the release of Resource Areas, at the above address. In This grazing privilege will expire on hazardous substances from T. 13 S., R. the absence of timely objections, this May 4, 1995. The patent will not be 1 W., Sec. 15, W1⁄2NE1⁄4NW1⁄4, proposal shall become the final issued on or before this date and will NW1⁄4NW1⁄4, S1⁄2NW1⁄4, SW1⁄4, determination of the Department of the result in the loss of 17 of the 225 AUMs regardless of whether such claims shall Interior. presently produced on this allotment. be attributable to: (1) the concurrent, This will constitute an 8% downward contributory, or partial fault, failure, or Dated: March 20, 1995. adjustment in the grazing preference. negligence of the United States, or (2) Samuel R. Rowley, The patent, when issued, will contain the sole fault, failure, or negligence of Associate District Manager. the following reservations to the United the United States.’’ [FR Doc. 95–7828 Filed 3–29–95; 8:45 am] States: Failure of Nephi City Corporation to BILLING CODE 4310±DQ-P 1. A right-of-way thereon for ditches submit the full purchase price within or canals constructed by the authority of the time allowed will result in [UT±050±05±1430±01; U±68991] the United States. Act of August 30, cancellation of the sale and forfeiture of 1890, (26 Stat. 391; 43 U.S.C. 945 any deposits. The public lands would be Realty Action (1970)). withdrawn from sale and the City of 2. All oil and gas resources would be Nephi would be required to bring the AGENCY: Bureau of Land Management, reserved to the United States with the existing 20 acre landfill site into Richfield District. right to prospect for, mine, and remove compliance with Environmental ACTION: Notice of realty action; direct the same under applicable law and such Protection Agency (EPA) landfill sale of public lands in Juab County, regulations as the Secretary of the regulations. Otherwise, R&PP lease Utah. Interior may prescribe, in accordance UTU–51861 may be terminated. If the with public law 94–579, Section 209 of lease is terminated the existing landfill SUMMARY: The following described the Federal Land Policy and site would be closed and the City of public lands have been found suitable Management Act of 1976 (43 U.S.C. Nephi would then be required to for sale under Section 203 of the Federal 1719). remove all facilities and rehabilitate the Land Policy and Management Act And will be subject to all valid disturbed public land in accordance (FLPMA) of 1976 (90 Stat. 2750, 43 existing rights and privileges of record with EPA and BLM rules and U.S.C. 1713), at no less than the and title restrictions including, but not regulations. The R&PP classification appraised fair market value $27,000. limited to: would terminate. The public lands The lands will not be offered for sale for 1. The subject lands are located would then continue under the at least 60 days after the date of within the Hall Creek drainage and the jurisdiction and management of the publication of this notice. Spring Canyon drainage and both Bureau of Land Management and Salt Lake Meridian, Utah involve base floodplains. Nephi City become subject to the public land laws Corporation must demonstrate their and general mining laws. T. 13 S., R. 1 W. ability to maintain, restore and protect Sec. 15, W1⁄2NE1⁄4NW1⁄4, NW1⁄4NW1⁄4, Detailed information concerning these the floodplains on a continuous basis in S1⁄2NW1/4, SW1/4. reservations as well as specific terms accordance with Section 3(d) Executive Contains 300 acres in Juab County. and conditions of the sale are available Order 11988 of May 24, 1977 (42 F.R. for review at the House Range and Publication of this notice segregates 26951) (Floodplain Management) and Warm Springs Resource Areas, Bureau the public lands described above from BLM Manual 7221.06D1. The of Land Management, 35 East 500 North, appropriation under the public land conveyance document will (1) reference Fillmore, Utah 84631. laws and the mining laws. The those uses that are restricted under For a period of 45 days from the date segregation will end upon disposition of Federal, State or local floodplain of publication of this notice in the this action, or 270 days from the date of regulations; and (2) shall include other Federal Register, interested parties may publication of this notice, whichever appropriate restrictions to the uses of submit comments to the Area Manager, occurs first. properties by Nephi City Corporation House Range and Warm Springs This land is being offered by direct and any successors. Resource Areas, at the above address. In sale to Nephi City Corporation of Nephi, 2. The follwing indemnification the absence of timely objections, this Utah, for a regional sanitary landfill. It statement signed by the Nephi City proposal shall become the final has been determined that the subject Mayor: determination of the Department of the parcel is prospectively valuable for oil ‘‘The City of Nephi, its successors or Interior. and gas; therefore, the mineral estate, assigns, assumes all liability for and excluding oil and gas, will be conveyed shall defend, indemnify, and save Dated: March 20, 1995. simultaneously with the surface estate harmless the United States and its Samuel R. Rowley, in accordance with Section 209 of officers, agents, representatives, and Associate District Manager. FLPMA. Nephi City Corporation filed an employees (hereinafter referred to in [FR Doc. 95–7829 Filed 3–29–95; 8:45 am] application along with the required this clause as the United States), from BILLING CODE 4310±DQ±P 16502 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices [OR±942±00±1420±00: G5±092] Dated: March 22, 1995. mining laws, subject to valid existing Robert D. DeViney, Jr., rights: Filing of Plats of Survey: Oregon/ Acting Chief, Branch of Realty and Records Sixth Principal Meridian, Nebraska Washington Services. T. 22 N., R. 47 W., [FR Doc. 95–7818 Filed 3–29–95; 8:45 am] AGENCY: Bureau of Land Management. Sec. 1, lots 10–13, and 16; BILLING CODE 4310±33±M Sec 12, lot 1. ACTION: Notice. The area described contains approximately 145.87 acres in Morrill County. SUMMARY: The plats of survey of the [NM±930±1430±01; KSNM 94549] following described lands are scheduled Notice of Proposed Modification of The purpose of the proposed to be officially filed in the Oregon State Public Land Order 5605; Correction withdrawal is to reserve the land as an Office, Portland, Oregon, thirty (30) addition to the Crescent Lake National calendar days from the date of this AGENCY: Bureau of Land Management, Wildlife Refuge. publication. Interior. For a period of 90 days from the date Willamette Meridian ACTION: Correction. of publication of this notice, all persons who wish to submit comments, Oregon SUMMARY: In notice document 95–3171 suggestions, or objections in connection T. 25 S., R. 3 W., accepted March 3, 1995 on page 7785 in the issue of Thursday, with the proposed withdrawal may T. 29 S., R. 3 W., accepted March 1, 1995 February 9, 1995, make the following T. 21 S., R. 7 W., accepted March 3, 1995 present their views in writing to the correction: Under the heading Wyoming State Director of the Bureau of Washington Supplementary Information, the legal Land Management. T. 23 N., R. 10 W., accepted February 22, description which reads T. 8 S., R. 23 E., should be changed to read T. 8 S., Notice is hereby given that an 1995 opportunity for a public meeting is T. 23 N., R. 11 W., accepted February 22, R. 22 E. afforded in connection with the 1995 Dated: March 22, 1995. T. 23 N., R. 12 W., accepted February 22, proposed withdrawal. All interested Deputy State Director, 1995 persons who desire a public meeting for T. 24 N., R. 12 W., accepted February 22, Resource Planning, Use, and Protection. the purpose of being heard on the 1995 [FR Doc. 95–7811 Filed 3–29–95; 8:45 am] proposed withdrawal must submit a T. 24 N., R. 13 W., accepted February 22, BILLING CODE 4310±FB±M written request to the Wyoming State 1995 Director within 90 days from the date of publication of this notice. Upon If protests against a survey, as shown (WY±930±1430±01; NEW 135267) on any of the above plat(s), are received determination by the authorized officer prior to the date of official filing, the Notice of Proposed Withdrawal and that a public meeting will be held, a filing will be stayed pending Opportunity for Public Meeting; notice of the time and place will be consideration of the protest(s). A plat Nebraska published in the Federal Register at will not be officially filed until the day least 30 days before the scheduled date AGENCY: Bureau of Land Management, after all protests have been dismissed of the meeting. Interior. and become final or appeals from the The application will be processed in dismissal affirmed. ACTION: Notice. accordance with the regulations set forth in 43 CFR part 2300. The plat(s) will be placed in the open SUMMARY: The Fish and Wildlife Service files of the Oregon State Office, Bureau proposes to withdraw approximately For a period of 2 years from the date of Land Management, 1515 S.W. 5th 145.87 acres of public land as an of publication of this notice in the Avenue, Portland, Oregon 97201, and addition to the Crescent Lake National Federal Register, the land will be will be available to the public as a Wildlife Refuge, near Alliance, segregated as specified above unless the matter of information only. Copies of Nebraska. This notice closes the land for application is denied or canceled or the the plat(s) may be obtained from the up to 2 years from surface entry and withdrawal is approved prior to that above office upon required payment. A mining. The land will remain open to date. The temporary uses which may be person or party who wishes to protest mineral leasing. permitted during this segregative period are licenses, permits, rights-of-way, against a survey must file with the State DATES: Comments and requests for a Director, Bureau of Land Management, public meeting must be received by June cooperative agreements, or discretionary Portland, Oregon, a notice that they 28, 1995. land use authorizations of a temporary wish to protest prior to the proposed nature which do not significantly ADDRESSES: Comments and meeting official filing date given above. A disturb the surface of the land or impair requests should be sent to the Wyoming statement of reasons for a protest may be the existing values of the area. State Director, BLM, P.O. Box 1828, filed with the notice of protest to the Cheyenne, Wyoming 82003. The temporary segregation of the land State Director, or the statement of in connection with a withdrawal FOR FURTHER INFORMATION CONTACT: reasons must be filed with the State application or proposal shall not affect Tamara Gertsch, BLM Wyoming State Director within thirty (30) days after the administrative jurisdiction over the Office, 307–775–6115. proposed official filing date. land, and the segregation shall not have The above-listed plats represent SUPPLEMENTARY INFORMATION: On the effect of authorizing any use of the dependent resurveys, survey and February 24, 1995, a petition was land by the Fish and Wildlife Service. subdivision. approved allowing the Fish and Wildlife Service to file an application to Dated: March 23, 1995. FOR FURTHER INFORMATION CONTACT: withdraw the following described Alan R. Pierson, Bureau of Land Management (1515 SW public land for a period of 50 years, State Director, Wyoming. 5th Avenue), P.O. Box 2965, Portland, from settlement, location, or entry under [FR Doc. 95–7809 Filed 3–29–95; 8:45 am] Oregon 97208. the general land laws, including the BILLING CODE 4310±22±P Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16503 National Park Service Bureau of Reclamation Sacramento Metropolitan Water Authority, telephone (916) 967–7692. Bid Sale of Property; Cuyahoga Valley Environmental Impact Statement/ Letters of inquiry may be sent to the National Recreation Area Environmental Impact Report on addresses above. Sutter, Placer, El Dorado, Sacramento, SUPPLEMENTARY INFORMATION: The AGENCY: National Park Service, Interior. and San Joaquin Counties, American American River Water Resources River Water Resources Investigation ACTION: Correction to notice. Investigation began in 1992 and AGENCY: Bureau of Reclamation, potential alternative solutions were developed. Three alternatives are being SUMMARY: This notice contains Interior. presented for further consideration: (1) corrections to the notice published ACTION: Notice of intent to prepare an Conjunctive use (between ground water Friday, March 3, 1995. The notice environmental impact statement/ and surface water sources); (2) environmental impact report. announced the request for sealed bids conjunctive use with new storage for the sale of Cuyahoga Valley NRA SUMMARY: (possible reservoir sites include Clay tract 109–38, aka 1509 Boston Mills Pursuant to the National Environmental Policy Act of 1969, as Station, Deer Creek, Duck Creek, Small Road, Peninsula, Ohio. amended, and the California Alder, South Gulch, Texas Hill, and the EFFECTIVE DATE: March 24, 1995. Environmental Quality Act, the Bureau possible enlargement of the existing of Reclamation (Reclamation) and the Farmington Reservoir); and (3) the FOR FURTHER INFORMATION CONTACT: Sacramento Metropolitan Water construction of a full-size Auburn Superintendent John P. Debo, Cuyahoga Authority (SMWA) propose to prepare a Reservoir. The investigation is now at Valley National Recreation Area, 15610 joint environmental impact statement/ the point where the preparation of the Vaughn Road, Brecksville, OH 44141 environmental impact report (EIS/EIR) EIS/EIR is ready to begin. (216–526–5256). on potential alternative solutions to Oral comments regarding the proposed alternatives are welcome at SUPPLEMENTARY INFORMATION: meeting water-related needs in portions of Sutter, Placer, El Dorado, Sacramento, the public meetings. Written comments Background and San Joaquin Counties as identified must be received at the above address by May 8, 1995, to ensure consideration On March 3, 1995 the National Park through the American River Water Resources Investigation (ARWRI). in the development of the EIS/EIR. Service (NPS) published in the Federal Reclamation and SMWA will propose Dated: March 24, 1995. Register (60 FR 11994) a notice possible alternatives representing announcing the request for sealed bids Dan M. Fults, themes ranging from demand Acting Regional Director. for the sale of Cuyahoga Valley NRA management to all new construction. tract 109–38, aka 1509 Boston Mills [FR Doc. 95–7788 Filed 3–29–95; 8:45 am] DATES: Four public scoping meetings Road, Peninsula, Ohio. The correction BILLING CODE 4310±94±P will be held: to the notice advises potential bidders that the successful bidder shall have Tuesday, April 11, 1995, 7:00 p.m., possession of property and title within Stockton, California DEPARTMENT OF JUSTICE Wednesday, April 12, 1995, 1:00 p.m., sixty (60) days of the sealed bid opening Placerville, California Notice of Lodging of Settlement date. Wednesday, April 12, 1995, 7:00 p.m., Agreement Need for Correction Auburn, California Thursday, April 13, 1995, 7:00 p.m., Notice is hereby given that a proposed As published, the notice did not Sacramento, California Settlement Agreement in In re Shenango inform potential bidders that possession Inc., et al., Case No. 92–25379/JLC ADDRESSES: Meeting locations are: (W.D. Pa.), entered into by the United of the property and title shall take place Stockton Hilton, 2323 Grand Canal within sixty (60) days of the bid opening States on behalf of U.S. EPA, the State Boulevard, Stockton, California of Ohio, and debtors Shenango Inc., date. Best Western Placerville Inn, 6850 Shenango Group, Inc., and The Correction of Publication Greenleaf Drive, Placerville, Hockensmith Corporation was lodged California on March 16, 1994 with the United Accordingly, the publication on Auburn Inn, 1875 Auburn Ravine Road, States Bankruptcy Court for the Western March 3, 1995 of the notice announcing Auburn, California District of Pennsylvania. The proposed the request for sealed bids for the sale Expo Inn, 1413 Howe Avenue, Settlement Agreement resolves certain of Cuyahoga Valley NRA tract 109–38, Sacramento, California claims of the United States and the State aka 1509 Boston Mills Road, Peninsula, Poster session to begin one half hour of Ohio under the Comprehensive Ohio is corrected as follows: earlier. Environmental Response Compensation Written comments should be sent to Add the following sentence to the end and Liability Act, 42 U.S.C. 9601 et seq. Mr. Alan R. Candlish, Study Manager, of the SUMMARY section: The successful and state law relating to the Buckeye Bureau of Reclamation, North-Central Reclamation Landfill Site in Belmont high bidder shall have possession of California Area Office, 7794 Folsom property and title within sixty (60) days County, Ohio, and certain claims of the Dam Road, Folsom, CA 95630; or Mr. United States for pre-petition penalties of the sealed bid opening. Gene Robinson, Sacramento under the Clean Water Act, 33 U.S.C. Dated: March 20, 1995. Metropolitan Water Authority, 5620 §§ 1251 et seq., and the Clean Air Act, John P. Debo, Birdcage Street, Suite 180, Citrus 42 U.S.C. 7401 et seq. Under the Superintendent, Cuyahoga Valley NRA. Heights, CA 95610–7632. Settlement Agreement, inter alia, the [FR Doc. 95–7511 Filed 3–29–95; 8:45 am] FOR FURTHER INFORMATION CONTACT: Mr. U.S. EPA will have an allowed general Alan R. Candlish, Study Manager, unsecured claim of $1,252,846. BILLING CODE 4310±70±P Bureau of Reclamation, telephone (916) The Department of Justice will receive 989–7255; or Mr. Gene Robinson, comments relating to the proposed 16504 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Settlement Agreement for 30 days ALABC intends to file additional Notice Pursuant to the National following the publication of this Notice. written notification disclosing all Cooperative Research and Production Comments should be addressed to the changes in membership. Act of 1993ÐPERF Project 93±16, Assistant Attorney General of the On June 15, 1992, the ALABC filed its Dispersion Modeling Project Environment and Natural Resources original notification pursuant to section Division, Department of Justice, 6(a) of the Act. The Department of Notice is hereby given that, on Washington, D.C. 20530, and should Justice published a notice in the Federal December 8, 1994, pursuant to Section refer to In re Shenango Inc., et al., D.J. Register pursuant to Section 6(b) of the 6(a) of the National Cooperative Ref. No. 90–5–2–3–1099D. The Act on July 29, 1992, 57 Fr 33522. The Research and Production Act of 1993, proposed Settlement Agreement may be last notification was filed with the 15 U.S.C. 4301 et seq. (‘‘the Act’’), examined at the Office of the United Department on August 26, 1994. Petroleum Environmental Research States Attorney for the Western District This notice has not yet been Forum (‘‘PERF’’) Project 93–16, titled of Pennsylvania, 633 U.S. Post Office published in the Federal Register ‘‘Dispersion Modeling Project’’ has filed and Courthouse, Pittsburgh, PA 15222; pursuant to Section 6(b) of the Act. written notifications simultaneously the Region V Office of the United States Constance K. Robinson, with the Attorney General and the Environmental Protection Agency, 77 Director of Operations, Antitrust Division. Federal Trade Commission disclosing West Jackson Street, Chicago, Illinois [FR Doc. 95–7805 Filed 3–29–95; 8:45 am] (1) the identities of the parties and (2) 60604; and at the Consent Decree BILLING CODE 4410±01±M Library, 1120 G Street, N.W., 4th Floor, the nature and objectives of the project. Washington, D.C. 20005 (202–624– The notifications were filed for the purpose of invoking the Act’s provisions 0892). A copy of the proposed Notice Pursuant to the National Settlement Agreement may be obtained Cooperative Research and production limiting the recovery of antitrust in person or by mail from the Consent Act of 1993ÐHigh Performance plaintiffs to actual damages under Decree Library, 1120 G Street, N.W., 4th Composites Cooperative Arrangement specified circumstances. Pursuant to Floor, Washington, D.C. 20005. In Section 6(b) of the Act, the identities of requesting a copy, please enclose a Notice is hereby given that, on the parties are: Exxon Research and check in the amount of $3.00 (25 cents December 20, 1994, pursuant to Section Engineering Company, Florham Park, per page for reproduction costs), 6(a) of the National Cooperative NJ; Phillips Petroleum Company, payable to the Consent Decree Library. Research and Production Act of 1993, Bartlesville, OK; Clark Oil & Refining Joel M. Gross, 15 U.S.C. 4301 et seq. (‘‘the Act’’), BDM Corporation, Blue Island, IL; CITGO Acting Section Chief, Environmental Federal, Inc., acting on behalf of the Petroleum Corporation, Tulsa, OK; Enforcement Section, Environment and High Performance Composites Allied-Signal, Inc., Morristown, NJ; Natural Resources Division. Cooperative Arrangement (‘‘HPC’’), has Amoco Corporation, Chicago, IL; [FR Doc. 95–7806 Filed 3–29–95; 8:45 am] filed written notifications Chevron Research & Technology simultaneously with the Attorney BILLING CODE 4410±01±M Company, Richmond, CA; Mobil General and the Federal Trade Research & Development Company, Commission disclosing additions to its Paulsboro, NJ; Shell Development Antitrust Division membership. The notifications were filed for the purpose of extending the Company, Houston, TX; Marathon Oil Notice Pursuant to the National Act’s provisions limiting the recovery of Company, Littleton, CO; Atmosphere Cooperative Research and Production antitrust plaintiffs to actual damages Research and Exposure Assessment Act of 1993ÐAdvanced Lead-Acid under specified circumstances. Laboratory (AREAL), Research Triangle Battery Consortium Specifically, the additional members are Park, NC; and Western Research Hexcel Corporation, Pleasanton, CA; Institute, Laramie, NY. Notice is hereby given that, on and the University of Virginia, February 17, 1995, pursuant to Section The nature and objectives of the Charlottesville, VA. 6(a) of the National Cooperative research program performed in No other changes have been made in Research and Production Act of 1993, accordance with Project 93–16 are to either the membership or planned 15 U.S.C. 4301 et seq. (‘‘the Act’’), the use more realistic modeling techniques activity of the HPC. Membership Advanced Lead-Acid Battery in hazard assessments for hypothetical, remains open, and the HPC intends to Consortium (‘‘ALABC’’), a discrete accidental releases from industrial file additional written notification program of the International Lead Zinc applications by demonstrating improved disclosing all changes in membership. Research Organization, Inc. (‘‘ILZRO’’), model performance using actual field On April 6, 1994, BDM Federal, Inc., has filed written notifications scale data. Achievement of this acting on behalf of the HPC, filed its simultaneously with the Attorney objective will include the following original notification pursuant to Section General and the Federal Trade activities: Data Analysis of previous 6(a) of the Act. The Department of Commission disclosing changes in its experiments including data from the Justice published a notice in the Federal membership. The notifications were Register pursuant to Section 6(b) of the CHARR and the CEC major hazards filed for the purpose of extending the Act on June 3, 1994 (59 FR 28899). programs; Laboratory scale wind tunnel Act’s provisions limiting the recovery of The last notification was filed with experiments and performance antitrust plaintiffs to actual damages the Department on November 17, 1995. evaluation; Field experiments and under specified circumstances. This notice has not yet been published analysis; and Model modifications and Specifically, Whatman Paper, Ltd., has in the Federal Register pursuant to performance evaluation. withdrawn its membership with the Section 6(b) of the Act. Constance K. Robinson, ALABC. No other changes have been made in Constance K. Robinson, Director of Operations, Antitrust Division. either the membership or planned Director of Operations, Antitrust Division. [FR Doc. 95–7803 Filed 3–29–95; 8:45 am] activity of the group research project. [FR Doc. 95–7804 Filed 3–29–95; 8:45 am] BILLING CODE 4410±01±7 Membership remains open and the BILLING CODE 4410±01±M Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16505 DEPARTMENT OF LABOR Frequency of Response: Annual certain delinquent filers from Number of Respondents: 10,000 (year 1); voluntarily complying with the annual Office of the Secretary 7,000 in following years reporting requirements under Title I of Total Annual Burden Hours: 3,500 ERISA. In an effort to encourage annual Delinquent Filer Voluntary Compliance Total Annual Responses: 10,000 reporting compliance, therefore, the Program Affected Public: Business and other for- Department has decided to implement AGENCY: Office of the Secretary, Labor. profit; Not-for-profit institutions the Delinquent Filer Voluntary Compliance (DFVC) Program, under ACTION: Expedited review of the Respondents Obligation to Reply: information collected pursuant to the Voluntary. which administrators otherwise subject Delinquent Filer Voluntary Compliance Signed at Washington, D.C. this 24th day to the assessment of higher civil Program under the Paperwork of March 1995. penalties will be permitted to pay reduced civil penalties for voluntarily Reduction Act. Kenneth A. Mills, complying with the annual reporting Departmental Clearance Officer. SUMMARY: The Pension and Welfare requirements under Title I of ERISA, Benefits Administration, Department of Supporting Statement For Paperwork referred to as the ‘‘Program.’’ Labor, in carrying out its responsibilities Reduction Act Submissions 2. Indicate how, by whom, how under the Paperwork Reduction Act (44 frequently, and for what purpose the Delinquent Filer Voluntary Compliance information is to be used. For revisions, U.S.C. Chapter 35, 5 CFR 1320 (53 FR Program 1210–AA49 16618, May 10, 1988)), is submitting the extensions, and reinstatements of a information collection required under A. Justification currently approved collection, indicate the actual use the agency has made of the Delinquent Filer Voluntary 1. Explain the circumstances that the information received from the Compliance Program (Program) for make the collection of information current collection. review. The information collected is necessary. Identify any legal or required to be reported by pension and Under Title I of ERISA, the administrative requirements that administrator of each welfare and each welfare benefit plan administrators necessitate the collection. under Title I of the Employee pension plan, unless otherwise exempt, Attach a copy of the appropriate is required to file an annual report with Retirement Income Security Act of 1974. section of each statute and of each Plan administrators who choose to the Secretary containing the information regulation mandating or authorizing the set forth in Section 103 of ERISA. The participate in this Program, which offers collection of information. a substantial reduction in penalties, are statutory annual reporting requirements The Secretary of Labor has the under Title I of ERISA, Title IV of required to submit minimal authority, under section 502(c)(2) of documentation along with payment to ERISA, and the Internal Revenue Code ERISA, to assess civil penalties of up to are satisfied generally by filing, in verify plan information and facilitate $1,000 a day against plan administrators accordance with the instructions to the Federal record keeping. who fail or refuse to file complete and forms and related regulations, the DATES: Pension and Welfare Benefits timely annual reports (Form 5500 Series appropriate annual return/report (the Administration has requested an Annual Return/Reports) as required Form 5500 Series). The Form 5500 expedited review of this submission under section 101(b)(4) of ERISA and Series collection has been given OMB under the Paperwork Reduction Act due the Secretary’s regulations codified in control number 1210–AA16. The Form to the time-sensitive nature of the 29 CFR part 2520. Pursuant to 29 CFR 5500 Series collection has been collection and the penalties that 2560.502c-2 and 2570.60 et seq. PWBA approved under the Paperwork accumulate daily due to late filing or has maintained a program for the Reduction Act on October 28, 1994. failure to file annual reports; this Office assessment of civil penalties for The DFVC Program is intended to of Management and Budget (OMB) noncompliance with the annual afford eligible plan administrators the review has been requested to be reporting requirements. Under this opportunity to avoid the assessment of completed by April 14, 1995. program, plan administrators filing civil penalties otherwise applicable to FOR FURTHER INFORMATION CONTACT: annual reports after the date on which administrators who fail to file timely Comments and questions regarding the the report was required to be filed may annual reports for plan years beginning Delinquent Filer Voluntary Compliance be assessed $40 per day for each day an on or after January 1, 1988. Eligible Program should be directed to Mr. annual report is filed after the date on administrators may avail themselves of Kenneth A. Mills, Departmental which the annual report(s) was required the DFVC Program by complying with Clearance Officer, Office of Information to be filed, without regard to any the filing requirements and paying the Resource Management Policy, U.S. extensions for filing. Plan specified civil penalties, set out in the Department of Labor, 200 Constitution administrators who fail to file an annual Federal Register Notice. Avenue, N.W., Room N–1301, report may be assessed a penalty of $300 The DFVC Program is available only Washington, D.C. 20210, 202 219–5095. per day, up to $30,000 per year, until a to a plan administrator who complies Comments should also be sent to OMB, compete annual report is filed. Penalties with each of the requirements the Office of Information and Regulatory are applicable to each annual report Notice prior to the date on which the Affairs, Attn: OMB Desk Officer for required to be filed under Title I of administrator: PWBA, NEOB Room 10235, ERISA. The Department may, in its (a) is notified in writing, pursuant to Washington, D.C. 20503, 202 395–7316. discretion, waive all or part of a civil 29 CFR 2560.502c-2, of the Any member of the public who wants penalty assessed under section 502(c)(2) Department’s intention to assess a civil to comment on the information upon a showing by the administrator penalty under section 502(c)(2) of collection request which has been that there was reasonable cause for the ERISA for failure to file a timely annual submitted to OMB should advise Mr. failure to file a complete and timely report; or Mills of this intent at the earliest annual report. (b) is otherwise notified in writing by possible date. The Department has determined that the Department of a failure to file a Average Burden Hours/Minutes Per the possible assessment of the above timely annual report under Title I of Response: 21 minutes described civil penalties may deter ERISA. 16506 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices It is anticipated that the administrator Therefore, the minimal information These circumstances should be of an employee welfare or benefit plan collection requirements of this Program explained. would make use of the DFVC Program were deemed necessary. The employee benefit plan no more than once per year, and would There is no similar information community is aware that the avoid use of the Program entirely if the gathered by any state or Federal agency Department has been considering statutory filing obligation were met in a or other sources that would enable the institution of a reduced penalty program timely manner. Department of effectively monitor for persons who voluntary file The only information collection participation in the Program. delinquent reports, and is generally requirement in the Notice is the 5. If the collection of information has supportive of the Program. The minimal requirement of providing data necessary a significant impact on a substantial information collection associated with to identify the plan along with the number of small businesses or other the Program will not dissuade penalty payment. This data is the only small entities (item 15 of the Paperwork participation by delinquent play means by which each penalty payment Reduction Act Submission form), administrators. will be associated with the relevant describe the methods used to minimize The Form 5500 Series was developed plan. With respect to most pension burden. in coordination with the IRS and PBGC, plans and welfare plans, the Not Applicable. and the DFVC Program has been requirement is satisfied by sending, 6. Describe the consequence to reviewed by these agencies as well. In along with the penalty payment, a copy Federal program or policy activities if addition, PWBA regularly requests of the first page of the delinquent the collection is not conducted or is comments from the ERISA Advisory annual report, which under current conducted less frequently. Council with respect to suggestions for procedures is sent to the IRS. If the collection is not conducted, it reducing paperwork. Under current procedures, certain may not be possible to institute the 9. Describe any assurance of pension plans for highly compensated Program because the Department would confidentiality provided to respondents employees, commonly ‘‘top hat’’ plans, be unable to determine whether persons and the basis for the assurance in and apprenticeship plans may file a seeking to take advantage of the reduced statute, regulation, or agency policy. one-time statement in lieu of annual penalties offered under the Program had The annual reports are required by reports. With respect to such plans the in fact complied with its conditions. law to be made available for inspection information collection requirements of The purpose of the Program is to at the Department and at the offices of the Notice are satisfied by sending a encourage delinquent plan the plan administrators. Accordingly, completed first page of an annual report administrators to come forward and file since this collection is merely one page form along with the penalty payment. delinquent reports. Lack of compliance of the annual report, the Department The one-time statements are required to with existing filing requirements provides no assurance of confidentiality be sent to a different address within the impairs the administration and to respondents. Department. The Program is designed to enforcement of the statute by the 10. Provide additional justification for allow the processing of all penalty Department, as well as the IRS and the any questions of a sensitive nature, such payments at a single location within the PBGC. The collection used in the as sexual behavior and attitudes, Department. Program creates a minimal burden on religious beliefs, and other matters that 3. Describe any consideration of plan administrators who are already in are commonly considered private. This information technology used to reduce breach of ERISA’s filing requirements justification should include the reasons burden, as well as any technical or legal while giving them access to reduced why the agency considers the questions obstacles to reducing burden. penalties. necessary, the specific uses to be made The Department, in conjunction with 7. Explain any special circumstances of the information, the explanation to be the IRS, PBGC, and OMB, is currently that require the collection to be given to persons from whom the exploring means by which to enhance conducted in a manner inconsistent information is requested, and any steps the Form 5500 filing review, processing, with the general information collection to be taken to obtain their consent. and data system. Until that time when guidelines in 5 CFR 1320.6 (e.g., There are no questions of a sensitive an electronic filing alternative is payment to respondents, disclosure of nature pertaining to sexual behavior and available, the Department has chosen proprietary information, etc.). attitudes, religious beliefs, or other the least burdensome collection method There are no special circumstances matters that are commonly considered for receiving notification of that require the collection to be private. participation in the Program and conducted in a manner inconsistent 11. Provide estimates of annualized correctly accounting for payment of with the guidelines in 5 CFR 1320.6. cost to the Federal Government and to penalties. 8. Describe efforts to consult with the respondents. Also, provide a 4. Describe efforts to identify persons outside the agency to obtain description of the method used to duplication. Show specifically why any their views on the availability of data, estimate cost, which should include similar information already available frequency of collection, the clarity of quantification of hours, operational cannot be used or modified for use for instructions and recordkeeping, expenses (such as equipment, overhead, the purpose(s) described in 2 above. disclosure, or reporting format (if any), printing, and support staff), any other The Department, IRS, and PBGC and on the data elements to be recorded, expense that would not have been utilize a consolidation annual report disclosed, or reported. incurred without this collection of (Form 5500 Series) which eliminates the Consultation with representatives of information. duplicative reporting that would those from whom information is to Based on expense estimates, the otherwise result from the separate obtained or those who must compile annual cost to the Department reporting to each agency. However, the records should occur at least once every attributable to the receipt and consolidated report does not 3 years—even if the collection of maintenance of the Program is estimated accommodate specific notification of the information activity is the same as in to be approximately $150,000. This Department of participation in the prior periods. There may be figure includes estimated costs to the Program, nor does it accommodate circumstances that mitigate against Department for lockbox maintenance, recording of payment of penalties. consultation in a specific situation. computer services, and other Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16507 operational expenses such as analytical techniques that will be used. Frequency of Response: One time equipment, overhead, and support staff. Provide the time schedule for the entire Number of Respondents: 9,115 As reflected in item 12 below, the project, including beginning and ending burden hours attributable to the dates of the collection of information, Total Annual Burden Hours: 17,167 collection by the universe of completion of report, publication dates, hours respondents is estimated to be 3,500 and other actions. Total Annual Responses: 9,115 hours. It is estimated that the cost to The Form 5500 Series collection, and Affected Public: Individuals or plans to complete the collection will by extension, this DFVC Program households; Non-for-profit range from $20 to $25 per hour. collection, are not a collection of institutions; State, Local or Tribal Therefore, the estimated aggregate cost information for statistical use. Once Government to respondents is approximately $70,000 collected, however, the information is to $87,500 in the first year, and $49,000 available to the Department and the Respondents Obligation to Reply: to $61,250 in succeeding years. public, and it is used for purposes other Voluntary 12. Provide estimates of the burden of than enforcement and disclosure. Signed at Washington, DC, this 24th day of the collection of information including March 1995. [FR Doc. 95–7742 Filed 3–29–95; 8:45 am] both recordkeeping and reporting Kenneth A. Mills, BILLING CODE 4510±22±M requirements. The statement should: Departmental Clearance Officer. • Provide number of respondents, I. Introduction frequency of response, annual burden, Evaluation of the Summer Youth and an explanation of how the burden Employment and Training Program This document represents a request was estimated. Unless directed to do so, for approval of the data collection AGENCY: agencies should not make special Office of the Secretary, Labor. protocols to be used in the Evaluation surveys to obtain information on which ACTION: Expedited review under the of the Summer Youth Employment and to base burden estimates. Consultation Paperwork Reduction Act. Training Program, being conducted by with a sample of potential respondents SUMMARY: The Employment and Social Policy Research Associates (SPR) is desirable. If the burden on and Brandeis University’s Center for respondents is expected to vary widely Training Administration, Department of Labor, in carrying out its responsibilities Human Resources, under contract to the because of differences in activity, size or U.S. Department of Labor (DOL). The complexity, show the range of estimated under the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5 CFR 1320 (53 FR study uses qualitative (case study) and burden and explain the reasons for the quantitative data collection and analysis variance. 16618, May 10, 1988)), is submitting a study to examine the range of practices methods to examine training practices An estimated 10,000 delinquent being used in the Summer Youth employee benefit plan administrators currently being used in the Summer Youth Employment and Training Employment and Training Program are expected to file under the Program (SYETP), Title II–B of JTPA. The in the first year, and an estimated 7,000 Administration (SYETP) to deliver educational services. It will assess the Introduction to this document provides filings are expected in subsequent years. a brief overview of the study and its Participation in the Program is quality of training and evaluate contributions to the educational purposes, and it discusses the data voluntary, and filing under the Program collection procedures and analysis would not be necessary more often than deficiencies of participants. DATES: The Employment and Training plans. Subsequent sections respond to annually, and most participants would the Office of Management and Budget’s probably participate one time only. The Administration has requested an expedited review of this submission (OMB) specific instructions for annual burden per filing is estimated to justification and address issues related be approximately 21 minutes, based on under the Paperwork Reduction Act; this Office of Management and Budget to the collection of information using a pilot pretest of not more than nine statistical methods. people from both Federal employment (OMB) review has been requested to be and the private sector. The burden on completed by April 14, 1995. Background respondents is not expected to vary FOR FURTHER INFORMATION CONTACT: widely because of differences in Comments and questions regarding the Funded under Title II–B of the Job activity, size or complexity. Evaluation of the SYETP should be Training Partnership Act, SYETP has its • If the request for approval is for directed to Mr. Kenneth A. Mills, origins in a thirty-year federal more than one form, provide separate Departmental Clearance Officer, Office commitment to create summer jobs for burden estimates for each form for of Information Resource Management disadvantaged youth. However, which approval is sought and aggregate Policy, U.S. Department of Labor, 200 developments in recent years have as the burdens on the Paperwork Constitution Avenue NW., Room N– well affirmed an emphasis on providing Reduction Act Submission form. If only 1301, Washington, DC 20210, (202) 219– educational services. For example, one form is submitted, you need not 5095. amendments to Title II–B enacted in duplicate the information entered on the Comments should also be sent to 1986 enumerated the enhancement of Paperwork Reduction Act Submission OMB, Office of Information and basic educational skills and form. Regulatory Affairs, Attn: OMB Desk encouragement of school completion as Not applicable. Officer for ETA, NEOB Room 10235, explicit goals of the program. Further, 13. For amendments to existing Washington, DC 20503, (202) 395–7316. SDAs were required to assess the collections, explain reasons for changes Any member of the public who wants reading and mathematics skill levels of in burden, including the need for any to comment on the information SYETP participants and to provide increase. collection request which has been remedial and basic education services Not applicable. submitted to OMB should advise Mr. where appropriate. Subsequent DOL 14. For collections of information Mills of this intent at the earliest issuances reinforced the educational whose results are planned to be possible date. emphasis of the Summer Youth program published, outline plans for tabulation Average Burden Hours/Minutes Per and encouraged efforts to link work and and publication. Address any complex Response: 113 minutes learning. 16508 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Purposes of the Study style of instruction promotes active —How are other services, including The changing focus of SYETP raises learning that is adaptive to the needs of supportive services and stipends, individual participants. used in the summer youth program? questions about the proper role of the • program’s educational component and Providing linkages with continuing How are these services used to the feasibility of diagnosing and educational activities, to sustain and support educational and other goals meaningfully redressing the basic skills build on learning gains. for the program? —What linkages has the SDA deficiencies of large numbers of youth In contrast to the client-level model, established between its Titles II–B within the compressed time frame of the the system-level model, shown in Exhibit II, is intended as a casual (rather and II–C programs? summer program. Thus, the objectives —What ‘‘front-end’’ and ‘‘back-end’’ of the evaluation are to examine the than a temporal) model and identifies factors that influence service delivery, linkages has the SDA established with range of practices currently being used public schools? Who instigated these to deliver educational services, explain including those that facilitate or impede the development of high-quality linkages and who maintains them? variation in service designs, assess the Are the linkages formal or informal? quality of training being provided, and educational services. The far right box of this model contains the elements of —What role have federal and state evaluate its ability to meet the needs of policies and local influences played participants and make significant high-quality SYETP educational services that were described in the in the SDA’s design decisions? How contributions to their educational have these policies been perceived deficiencies. Ultimately the study will client-level model. The exhibit schematically identifies aspects of and implemented? enable DOL to gauge the adequacy of • Federal and State policies and the local The design of SYETP at the services currently being provided, provider level identify areas of weakness and, environment that can affect an SDA’s —What types of organizations provide conversely, service designs that appear program design, and it shows how educational instruction? What especially efficacious, and provide design decisions and educational provider characteristics, in turn, affect objectives have been established for leadership and technical assistance to their programs? improve training practices. the quality of educational services provided. Specifically, it identifies: —Why did the provider decide to Conceptual Framework • Federal, State, and local influences participate in the summer youth on programs’ designs, including federal program and how was it selected? Guiding the data collection and —What objectives has the provider analysis efforts are a client-level model Title II–B policies, other Federal initiatives and policies, State JTPA and established for its educational of high quality educational services and program? What skills (e.g., basic a system-level model of factors that educational policies, and characteristics of local youth and of the local area. skills, SCANS skills) is it endeavoring determine training practices. The client- to teach? Is it attempting to link • SDA design factors, including level model of training quality, learning and work? program goals, target groups, and presented in Exhibit I, depicts how —What service design is it using to meet clients flow through the SYETP service delivery arrangements. • these objectives? Who developed the program, the quality indicators for each Attributes of the service providers design and why? Was the design type of service that the program who deliver educational services to established explicitly for the summer provides, and the intended participants, including the types of youth educational program? consequences of high-quality services institutions, their history, objectives, —How are educational services for youth. Steps identified in this model and funding sources. sequenced? How was the curriculum are: Questions for the Evaluation developed? • Recruitment, assessment, and —How did it recruit and train its staff? service planning practices. Quality The preceding conceptual frameworks —How have the SDA’s objectives for the indicators associated with this phase of give rise to a number of specific summer youth educational program service delivery include whether questions to be investigated in the been communicated to the service programs have a clear strategy for which project. These include issues relating to provider and how have they been youth should be targeted and effective the design of services at the SDA level, acted upon? procedures to recruit them, whether the design of services at the level of the —What role has the SDA played in they conduct a comprehensive educational provider, and the quality designing the provider’s educational assessment of youths’ skills and and impact of educational services. services, including its content and • interests, and whether the assessment The design of SYETP at the SDA method of delivery? How does the results are used to develop an level. SDA monitor the services that are individualized service strategy tailored —What general objectives have SDAs being provided and how does it to the skills and interests of each established for their Title II–B suggest changes? participant. programs? What specific objectives (in —How does the provider’s design reflect • Providing effective educational terms of skills to be conveyed, other elements of the local context, services, either through classroom or benchmarks to be achieved) have been including the needs of the work-based instruction. Quality established for the Title II–B community, the characteristics of indicators for both training content and educational components? youth in the area, and the instructional methods are identified in —Do programs identify priority client characteristics of the school district? the exhibit, including whether the groups? If so, what target groups have • The quality and impact of training objectives are well-specified, they established? Who makes those educational services whether they promote the educational decisions, and how and why were —What procedures are used by SDAs to skills needed in the workplace, whether they made? recruit youth for the summer training is provided in a functional —What types of providers are used by program? Do recruitment methods context, whether participants’ progress the SDA for educational instruction? correspond to their targeting goals? is documented, whether there are ample How were these providers selected —How is the participant’s initial opportunities to learn, and whether the and why were they selected? assessment conducted and how is Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16509 subsequent progress assessed and provider visited and review case files • Targeted participants (e.g., 14–15 documented? for 2 youths at each provider. Follow-up year olds, 16–18 year olds, other target —How are individual service plans telephone discussions also will be groups). developed? Are the service plans truly conducted with youths selected for the Providers are being selected to ensure individualized to the needs, skills, case file reviews and with their parents the diversity of the sample (both within and interests of each participant? and school counselors to learn of the SDA and across all 30 SDAs) with Does the youth play an active role in retrospective impressions of and respect to these dimensions. formulating the service plan? Are the satisfaction with the SYETP experience Data Collection resulting goals clear and ambitious and perceived impacts on subsequent (without being unrealistic)? achievements and behaviors in school. The field protocols, or topic guides, —Does the educational instruction that developed for this process study are Selecting the Sample is being provided have well-specified designed to guide the data collection objectives? Do the objectives indicate As part of the study, samples are activities. These protocols will permit skills to be acquired (rather than being drawn of 30 SDAs and up to 3 site visitors to tailor discussions and knowledge to be learned)? educational activities in each SDA (or observations on a standardized set of —Does the instruction emphasize skills 90 total). To ensure that the resulting issues to the particular context of each needed in the workplace? Are the sample will be nationally case study SDA and sampled skills taught in a functional context? representative, the 30 SDAs are being educational activity. The following —Does the instruction promote active selected using stratified random topic guides have been developed and learning and training for transfer? sampling. In selecting the sample, all are submitted for OMB’s review: —Is instruction adaptive and provided SDAs nationwide are being assigned to • SDA Guide #1 includes the topics to by capable and caring adults who one of 4 strata. The first 3 of these be covered in discussions with SDA view their role as a ‘‘facilitator’’? groups are defined according to the policy, planning, and administrative —Have linkages been established to percent of their Summer Youth staff, including those relating to the provide feedback to schools or other participants who receive educational goals, design, and management of the programs serving the youth? instruction, with the first stratum Summer Program. • # —What implications do service provider consisting of those SDAs with percents SDA Guide 2 includes the characteristics and design decisions between 1% and 41%, the second discussion topics to be used with SDA have for the quality of educational between 42% and 73%, and the third staff responsible for direct operation or services? between 73% and 100%. These cutoffs oversight of client recruitment, —What implications does participation were chosen so that approximately assessment, service planning, and case in SYETP, in general, have for equal numbers of youths receiving management services for Title II–B stabilizing or improving academic or participants. educational instruction are in each of • # other achievements, promoting school the three strata. The 4th stratum consists Program Guide 1 includes the completion, and increasing the of those SDAs for whom information on topics to be covered in discussions with motivation to learn? the number of participants in administrators of the selected —What implications do alternative educational instruction is not available. educational activity, staff that designs for delivering educational Within each strata, SDAs were participated in the planning and services (e.g., provider characteristics, sampled with the odds of selection development of the detailed curriculum, the locus on instruction) have for proportionate to the number of and supervisors responsible for hiring, these same youth outcomes? participants being served,1 so that the training, and overseeing instructors/ work site supervisors involved in Study Design resulting sample of SDAs is approximately self-weighting. educational activities. To address the research questions • # Because this study is intended to Program Guide 2 includes the identified above, this study uses two describe and compare the effectiveness topics to be used in discussions about evaluation components—a process of a wide variety of approaches to the classroom-based learning approach study and a client-level study of building the educational skills of SYETP with classroom instructors or other staff outcomes. participants, educational providers are whose primary responsibility is to The Process Study selected within each of the 30 SDAs support learning in a classroom or individual study setting (e.g., tutors, The process study uses a series of using purposive selection methods. Specifically, all educational providers educational resource staff). ‘‘nested’’ qualitative case studies to • Program Guide #3 includes the used by these SDAs are to be examine the design and operation of topics to be used in discussions with categorized according to their: SYETP services at 30 SDAs nationwide work project coordinators and worksite • Content emphasis (e.g., basic skills and approximately 3 educational supervisors who are involved in work- only; SCANS foundation skills and/or providers at each of these SDAs (up to based learning. This guide includes competencies; or other academic 90 providers total). The data collection topics for projects using the 100% work- subjects, such as science, history, or art). activities will consist of a review of based learning approach as well as • Locus of educational instruction plans for the Summer Program as well topics for staff involved in work (e.g., classroom-based, work-based, or as 4-day on-site visits to each selected activities that are closely coordinated SDA and its associated providers, both). • with classroom-based learning. during which time researchers will meet Type of provider (e.g., SDA; • Program Guide #4 is a guide for with SDA and provider administrators secondary school, other educational structured observations of educational and staff, classroom instructors, and institution such as community college activities. worksite supervisors, and they will or technical college, or other). • Program Guide #5 is a guide for observe educational instruction. While structured review of curriculum 1 on site, researchers also will conduct 1 Dollar allocations for the Summer Youth materials. program were used in the fourth stratum, because • # focus group with approximately 5–6 the number of participants receiving educational Client Guide 1 describes the topics youth participants at each educational instruction is not available for these SDAs. to be addressed in focus group 16510 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices discussions with approximately 5 youth Selecting Participants for the Study contractor electronically (e.g., on data participating in each selected diskette). A key element of the overall research • educational activity. design is to tie the results from the case SDA’s Client Files. Those SDAs • Client Guide #2 will be used to study observations of classroom able to provide pre-test/post-test scores extract relevant information for the case instruction and appraisals of training for youth served in the summer of 1994 history sample from the participants’ quality to the analysis of participants’ will forward those scores to the written case files at the SDA or outcomes. In this way, inferences can be contractor for data entry. All provider. drawn regarding the relationship participating SDAs will forward the • between the training practices observed hard-copy pre-test/post-tests and self- Client Follow-Up Guide describes esteem surveys of sampled participants the topics to be discussed with selected in the field to the consequences of those practices for the youth who receive served in 1995 to the contractor for youth participants (i.e., those selected scoring and keypunching. for the case file review) several months them. For this reason, participants • School Records. An important after their Summer Program’s selected for the client-level study of objective of the study is to learn how participation has ended. outcomes will be those whose SYETP participants (at least those who are • instruction was delivered by the service Parent/Guardian Guide will guide providers whose practices were students) fare in their subsequent the issues to be addressed with these observed on site. Specifically, schooling. Outcomes of interest include youths’ parent or guardian during the participants will be selected in the measures of academic achievement (e.g., follow-up period. following ways: grade-point-average), but also evidence • Counselor Guide describes the • Preliminary information received of behavioral problems (e.g., as topics to be addressed with the youths’ from the 30 SDAs has led us to evidenced by absenteeism, suspensions/ secondary school counselors during the determine that approximately 15 of expulsions). Thus, school record school year following the youths’ them require pre-tests and post-tests of information will be abstracted for summer participation. basic skills for all participants receiving sampled summer 1995 youths who sign academic instruction. All youth served and have their parents/guardians sign a Data Analysis in the summer of 1994 by the 3 selected consent form. The analysis of the case studies will providers in these SDAs will be Exhibit 3 summarizes the variables to begin with a within-site explanatory included in the study. This will yield an be measured from these sources. analysis. This task will consist of expected sample of approximately 1,800 Data Analysis bringing to bear the data that has been respondents. • A preliminary analysis will be collected to arrive at a comprehensive The service providers visited for the conducted using SDA MIS data and pre- picture of the practices in each of the case studies in the 30 SDAs included in test/post-test scores for the 1,800 youth SDAs and service providers that were the study will each be asked to who participated in the summer selected for the study and how they administer a common pre-test/post-test program in 1994, selected as described have contributed to the needs of the in the summer of 1995, as well as a brief above. A more comprehensive analysis participants. A particular objective will instrument measuring self-esteem. All for a larger sample will be conducted be to uncover especially innovative youth served by these providers will be when school record data are collected, practices, with an eye to understanding included in the study. This will yield for youths who participated in the how they were implemented and what approximately an additional 3,600 summer of 1995. Additional outcomes makes them work so well. respondents. • A randomly chosen sample of 400 to be examined with these data include: The next step will consist of cross-site youths not receiving educational self-esteem, school attendance, grade comparisons to synthesize the findings. instruction also will be included in the completion, grade-point average, and This analysis will clarify further the study as a comparison group. absenteeism. Two types of analysis will unique procedures that programs adopt be conducted: to deliver high quality training in a Data Collection • Descriptive analyses, which will variety of environments and arrive at an The plan for the client-level study of paint a picture of the characteristics of understanding of commonalities and outcomes is based on the analysis of persons receiving educational differences between programs and how information for the sampled participants instruction in the sampled programs, these are related to effective practices. drawn from a variety of sources and the types of services received, and the Client-Level Study of Outcomes that, to a large degree, already exists. outcomes obtained. Thus, the compilation of these data for • Explanatory analyses that will In addition to collecting and analysis purposes entails data gathering examine the efficacy of alternative analyzing information from the case at least as much as new data collection. service designs and delivery studies about program practices, this Specific data sources to be used are mechanisms for subsequent outcomes. study also will gather and analyze these: Reporting quantitative information for a sample of • The SDA’s MIS. Although the approximately 1,800 youths who specific types of information doubtless The project’s major deliverables participate in the Summer Program in will vary from one SDA to the next, include: 1994 and an additional 4,000 youths most SDAs’ MIS will include: • An Interim Report. This report will who participate in the 1995. By participant’s demographic and detail the results of the process analysis, compiling and analyzing information for background characteristics (e.g., race, describing results from the case studies a sample of participants on the services school status, gender), barriers to regarding how services are designed and that were received and the outcomes employment (e.g., whether the youth is delivered. It also will include the that were obtained, the study will draw a limited-English speaker or has a preliminary results from the study of inferences regarding the relative efficacy disability), and summary information outcomes based on the data collected for of various service design and delivery about services received. SDAs will be youth who participated in the summer methods. requested to transmit these data to the of 1994. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16511 • A Technical Assistance Guide procedures, specific skills being taught, Second, where feasible (and at least (TAG). The TAG will be a practitioner’s the locus of instruction, linkages with respect to the MIS data), guide describing effective practices in between work and learning, and information will be transferred to the the delivery of educational services, linkages with public schools and year- contractor electronically (i.e., via focusing especially on how educational around Title II–C JTPA services. modem or data diskette), greatly instruction can be delivered in a 2. Describe variation in the quality of facilitating the data transmission functional, work-related context. educational services, including whether process. • A Final Report. This report will assessments are comprehensive, Third, only data of direct relevance to represent a summation of the study’s whether service strategies are the goals of the study will be collected. findings and recommendations. As individualized to the needs and Fourth, much time on site will be such, it will include the content of the interests of participants, whether the devoted to the unobtrusive observation Interim Report, combined with the participants are actively involved in of educational instruction and the comprehensive results of the study of formulating the service plan, whether review of written documents and outcomes. educational instruction has well- participants’ case files, and this too specified objectives relating to skills to should be minimally burdensome to II. Supporting Statement be acquired, whether skills are taught in SDA and service provider staff or A. Justification a functional context and emphasize participants. skills needed in the workplace, and 1. Circumstances Making the Data 4. Efforts to Identify Duplication whether instruction is adaptive. Collection Necessary 3. Identify factors that explain A study conducted of SYETP during The Department of Labor (DOL) is variation in how educational services the summer of 1993 included 50 on-site considering ways of improving the are being designed and delivered, such visits and a mail survey of all SDAs educational component of the JTPA as federal policies, opportunities for (1205–0327, expired 12/93). However, Title II-B Summer Youth Employment technical assistance and training, state- this data collection focused on general and Training program (SYETP), in level partnerships between JTPA and operational issues, did not entail on-site keeping with Secretary Reich’s ‘‘First the school system, and other local observations of classroom instruction to Jobs/New Jobs/Better Jobs’’ initiative. Its influences. characterize its quality and did not objectives for SYETP are to improve the 4. Document consequences of attempt to study youth at any point program’s effectiveness in assisting participation in SYETP educational beyond their period of participation. young people acquire strong workplace services, especially high quality Additional information available foundation skills (including basic skills, services, for participants’ skill levels, about SYETP comes from the SDAS’s thinking skills, and interpersonal skills) subsequent academic achievement, and plans for their summer’s activities. and gain an appreciation of the school attendance and performance. However, these documents provide no inextricable connection between 5. Document participants’ satisfaction information about how or how well the learning and success in the workplace. with the program, including their plans are implemented, nor do they As part of its effort to foster program assessment of the helpfulness of the allow an assessment of the instruction’s improvements, DOL needs to obtain a services they received. quality or effectiveness, nor do they thorough understanding of educational If this information is not collected, speak to the participants’ satisfaction services currently being provided to DOL will not have the information it with the services they received. summer youth participants—including needs to evaluate how educational Finally, states are required to submit how participants are assessed, the services are being delivered or their annual reports providing aggregate curriculum being used, and how the effectiveness, and thus it will not have counts of participants served and their educational and work components of the necessary foundation for characteristics (1205–0200, expires 7/ SYETP are integrated—and identify implementing program improvements. 97). However, these simple summary reports are useful for little more than particularly efficacious practices. 3. Considerations to Reduce Burden As part of its response to Executive identifying the numbers of persons of Order No. 12862 requiring all Federal The data collection activities have different ages and education levels who agencies to develop customer service been designed to minimize the burden were served. standards, DOL also needs to know on respondents in four major ways. First, pre-existing information will be 5. Why Similar Information Cannot be participants’ views about the services Used they received in SYETP, including their utilized wherever possible to minimize service needs and how well the program the need for new data collection. These Information from the sources responded to those needs. This pre-existing sources will include SDAs’ described above will be used to the information is critical to implementing plans for their Title II–B programs, RFPs fullest extent possible in the study being changes that can improve program and contracts written by SDAs to secure planned. Indeed, these data provide a responsiveness. the services of the direct providers of strong foundation to support the study educational instruction, data collected by providing essential background and 2. Use of Information and Consequences as part of last summer’s study of SYETP, other information. However, DOL has if Not Collected test scores, information from school concluded, on the basis of the effort to The information being collected in records, and existing MIS data compiled identify duplication, that these pre- this study will be used to address these by SDAs about their participants’ existing sources are not adequate to objectives: characteristics, services, and outcomes. characterize the quality or education 1. Describe variation in the design of These data sources can be forwarded to services, support an analysis of the SYETP educational services across the contractor with minimal burden to factors associated with high quality service delivery areas (SDAs) and their SDA or school or provider staff and to services, describe the consequences of service providers, with respect to program participants. Where data participation in SYETP for subsequent general goals and objectives they have abstraction requires hand-coding (e.g., achievements, or document established for the program, their from school records), abstractors will be participants’ satisfaction with the targeting decisions, assessment compensated by the contractor. program. Nor are they adequate, 16512 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices consequently, to support DOL’s efforts Ms. Janice Hendrix, North Central However, for the most part these data to foster program improvements. Indiana PIC, 36 West Fifth St., Suite elements do not represent new data collection activities. JTPA currently 6. Burden on Small Businesses 102–B, Peru, Indiana 46970, (317) 473–5571 requires that all summer youth be Some activities associated with this Mr. Gill Ritt, Career Resource administered a test of basic skills to study will involve the collection of data determine their need for basic skills Associates, 2932 Sumac Drive, from the administrators or staff of remediation, and many SDAs also Atlanta, Georgia 30360, (404) 698– organizations providing educational administer post-tests to document instruction as part of SYETP, and some 8427 learning gains. of these entities may be small Mr. Kip Stottlemyer, Consultant, 1408 Similarly, information about school businesses. However, as described Milestone Drive, Collierville, performance will be abstracted from under #3, ‘‘Considerations to Reduce Tennessee 38017, (901) 854–1438 existing student files. Moreover, youths Burden,’’ only information of direct and their parents/guardians will be In addition, all the protocols guiding relevance to the study’s objectives will asked to sign a consent form before the be collected while on site. Secondly, the conversations with key respondents abstraction will be conducted. This form much on-site data collection to be have been pre-tested on not more than will outline the objectives of the study conducted at service providers will 9 respondents, and modifications to the and ask the youth and his/her parent to involve the unobtrusive observation of protocols were made on this basis where allow access to student records for classroom instruction and the review of it seemed appropriate. purposes of the evaluation. It will be client case files, and it will thus entail 10. Assurances of Confidentiality explained that participation in the study minimal burden on the providers’ is completely voluntary and that a administrators or staff. Finally, as part The information to be collected will refusal to participate will not jeopardize of the agreement allowing them to be held strictly confidential and will be the youth’s receiving SYETP services. deliver services under JTPA, providers used for research purposes only. To 12. Cost to the Federal Government and acknowledge DOL’s right to evaluate ensure confidentiality, DOL will require to Respondents and/or monitor their activities and that the study team take the following services. measures: The total estimate cost to the federal government for the collection and • 7. Consequences of Less Frequent Data Access to the data will be limited to analysis of these data is $849,543. Collection the contractor’s project team members Because the study will be conducted The data collection activities only. over 3 years,2 the average per annum associated with this study will be • Reports to DOL will focus on cost is approximately $283,000. This conducted one time only. describing and analyzing the range of amount includes the costs of designing service designs and training practices the field protocols, performing the on- 8. Collection Inconsistent With 5 CFR site visits and telephone follow-up, 1320.6 that were observed and will not associate a design or process with any recording observations from the site Data collection will be consistent with specific SDA or service provider, except visits, collecting the client-level data for 5 CFR 1320.6. by way of providing an example of the study of outcomes, analyzing the data, and preparing two reports on the 9. Efforts to Consult With Persons exemplary practices, and then only with the SDA’s approval. results (i.e., an Interim Report and a Outside the Agency Final Report) and a Technical • Responsibility for devising and Reports to DOL that contain Assistance Guide (to disseminate carrying out the data collection rests individual vignettes based on the information on effective practices). The with DOL’s contractor, Social Policy experiences of participants will not method used to derive this figure Research Associates (SPR), and its contain individual names or any other entailed a quantification of hours of subcontractor, Brandeis University’s identifying information. effort involved by each study team Center for Human Resources. Key • The contractor’s project team member and included expenses for personnel associated with these members will be trained in the materials and services (e.g., institutions are nationally known confidentiality requirements and photocopying expenses and expenses experts in evaluation research and have cautioned to use the data for research involved in binding the report). in-depth knowledge of employment and purposes only. The costs to respondents result only training programs in general and from the time spent answering the Summer Youth programs in particular. 11. Justification of Questions of a questions. Estimates of the time to Additionally, the study team has Sensitive Nature respond are presented below. enlisted the aid of additional experts, 13. Estimate of Burden who are serving as consultants on the Two sources of data are potentially project. Their advice was solicited sensitive. First, pre-tests and post-tests Below is the estimate of the regarding the usefulness of the data will be administered to youth included respondent burden. Time estimates are elements to be collected, the feasibility in the study. Second, school record based on the pretest of the instruments of the data collection plan, and the information will be abstracted for those (for the topic guides to be used in the clarity of instructions. These youth in the sample who participated in process study) or from the use of the consultants are: the summer program of 1995 and who instruments in previous studies (for the pre-test/post-test and self-esteem Ms. Nancy Bross, Public Policy Support, return to school in the fall. These data scales). It is anticipated that these will 1377 McLendon Ave., N.E., Atlanta, elements are imperative to examine be conducted within the next year and Georgia 30307, (404) 581–9895 learning gains for those who receive Ms. Lee Bruno, Consultant, 3106 Old educational services and to examine if SYETP participation is associated with 2 A separate PWR package will be submitted for Largo Road, Upper Marlborough, any burden associated with follow-up work done Maryland 20772, (301) 627–1415 improved school performance. after the first year. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16513 the burden hours represent the first year burden claimed. If follow-up activities extend beyond one year, an Inventory Correction Worksheet will be submitted. Number of Minutes per Instruments respondents respondent Total hours SDA Guides for Discussions With: 1. Policy, Planning, and Administrator Staff ...... 60 60 60 2. Recruitment, Service Planning, and Case Management Staff ...... 60 45 45 Program Guides for Discussions With: 1. Program Administrators ...... 90 90 135 2. Classroom Instructors ...... 85 20 28 3. Work Project Coodinators ...... 10 20 3 Client Guides for: 1. Focus Group with Participants ...... 450 15 112 2. Participants, at Follow-up ...... 120 15 30 Guide for Discussions with Parents ...... 120 5 10 Guide for Discussions with Regular School Counselors ...... 120 15 30 Pre-test and Post-test of Participant's Basic Skills (Workplace Literacy Test) ...... 4,000 240 16,000 Self-Esteem Instrument (Rosenberg Self-Esteem Scale) ...... 4,000 10 667 Additional data collection to be used instruction provided? With what The project’s major deliverables in the project represents the abstraction intensity? include: or review of existing information. There • How does the intensity and nature • An Interim Report. This report will are no respondents for these guides and of the training received relate to detail the results of the process analysis, thus they entail minimal burden on outcomes, including learning gains, describing results from the case studies SDA or provider personnel or program school attendance rates, grades in regarding how services are designed and participants beyond copying documents school, rates of absenteeism, and delivered. It also will include the or data files and shipping them to the suspensions and expulsions? How do preliminary results from the study of contractor. Where hand-extraction of the outcomes for youth who received outcomes based on the data collected for information is required (e.g., from educational instruction compare to youth who participated in the summer student records , abstractors (SDA or those in the compoarison group? of 1994. This report will be completed service provider personnel) will be • Data for this component of the at the end of the Summer of 1995. compensated. project will be compiled in various • A Technical Assistance Guide phases: (TAG). The TAG will be a practitioner’s 14. Reason for Change in Burden • Phase I: Collect MIS and pre-test/ guide describing effective practices in This is a new collection as reported in post-test data for sample members who the delivery of educational services, ETA’s ICB (Information Collection participated in the summer program in focusing especially on how educational Budget). The first year’s burden of 1994. Collection of this information will instruction can be delivered in a 17,120 hours is being submitted now. occur during the winter of 1995. functional, work-related context. An Inventory Correction Worksheet will • Phase II: Collect MIS, pre-test/post- The TAG will be prepared in the be submitted for any follow—up test, and self-esteem data for sample Spring of 1996. activities in the out years. members who participated in the • A Final Report. This report will summer program in 1995. Collection of represent a summation of the study’s 15. Plans for Statistical Analysis this information will occur during the findings and recommendations. As winter of 1996. such, it will include the content of the Data to be collected for this project for • the process study generally will not be Phase III: Collect school record Interim Report, combined with the analyzed using qualitative research information. These data will be comprehensive results of the study of methods, findings will be detailed in a collected during the summer of 1996, outcomes. This report will be prepared narrative, and their implications for after the conclusions of the 1995–96 in the Spring of 1997. school year, so that school outcomes improving program quality will be B. Collection of Information Employing detailed. measured for those who participated in the 1995 summer program will reflect a Statistical Methods Data collected for the study of full school year. This process study utilizes qualitative outcomes will be analyzed using Methods to be used in analyzing these case study data collection and analysis statistical methods to address these data will include univariate and methods. In terms of identifying research issues: multivariate statistics. Specifically, appropriate respondents in each local • What are the characteristics of univariate distributions will be site and analyzing case study data, persons receiving educational services calculated to describe the characteristics qualitative rather than statistical in the Summer Youth program? Are of participants, their services, and their methods will be used. Discussions of educational services targeted to those outcomes. Cross-tabulations will be estimation procedures and degree of who have a greater need for used to examine the relationship accuracy (power analysis) in remediation? between variables. Multivariate generalizing sample findings to the • What types of educational services analyses, primarily regression analysis, universe of all potential respondents are were provided? Specifically, in what will be used to examine how various not applicable to the process study, subject areas (e.g., math, reading, other participant characteristics and measures because findings will not be expressed academic subjects, SCANS skills) was of services received relate to outcomes. in quantitative terms. 16514 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices The study of outcomes will employ Because this study is intended to size must be sufficient to allow reliable statistical methods, however. These describe and compare the effectiveness estimation of relatively small methods are described in the rest of this of a wide variety of approaches to differences in outcomes across various section. building the educational skills of SYETP service strategies. Let us suppose that participants, educational providers are the outcome variable is a percentage 1. Potential Respondent Universe and selected within each of the 30 SDAs (e.g., the percentage of participants who Sampling Methods using purposive selection methods. complete their next grade level), that the Approximately 625,000 youths can be Specifically, all educational providers average of the outcome is 50%, that we expected to participate in the Title II– used by these SDAs are to be can explain 25% of the outcome’s B program during each of the summers categorized according to their: variation with all predictor variables of 1994 and 1995, if current levels of • Content emphasis (e.g., basic skills combined, and that 10% of the variance funding are maintained. Of these, about only; SCANS foundation skills and/or in the educational components can be 40%, or 250,000, will be receiving competencies; or other academic explained by other control variables. educational services. These youth are subjects, such as science, history, or art). Under these circumstances, the sample served by the nation’s approximately • Locus of educational instruction size to be used for this study would be 640 service delivery areas (SDAs). (e.g., classroom-based, work-based, or able to detect an approximately 3 The youths to be included in the both). percentage points difference in study will be served by approximately • Type of provider (e.g., SDA; outcomes across a dichotomous measure 90 service providers used for secondary school, other educational of service (e.g., instruction is provided educational instruction in 30 SDAs that institution such as community college in a functional context or not). Note that were selected for examination in the or technical college, or other). these are generally fairly conservative process study. To ensure that the • Targeted participants (e.g., 14–15 assumptions. For example, sample size sample of SDAs is nationally year olds, 16–18 year olds, other target requirements would be less stringent if representative, the 30 SDAs are selected groups). the average of the outcome were either using stratified random sampling. In Providers are being selected to ensure higher or lower than 50%. selecting the sample, all SDAs the diversity of the sample (both within Estimation Procedures. As described nationwide are assigned to one of 4 the SDA and across all 30 SDAs) with in Section A, Item 15, several estimation strata. The first 3 of these groups are respect to these dimensions. techniques will be used. First, means defined according to the percent of their Because most providers serve fairly and univariate distributions will be Summer Youth participants that receive few youths, all youths served by the calculated to describe the sample. educational instruction, with the first selected providers during the summer of Second, t-tests of means (for outcomes stratum consisting of those SDAs with 1995 will generally be selected for the measured on a continuous scale) and percents between 1 % and 41%, the study of outcomes. However, for large chi-square tests (for categorical second between 42% and 73%, and the providers (those serving more than variables) will be calculated to third between 74% and 100%. These approximately 70 participants), youths determine whether outcomes vary cutoffs were chosen so that will be selected who attended classes significantly for participants with approximately equal numbers of youths served by the instructors who were different characteristics (e.g., age) or receiving educational instruction are in observed by the site visitors, the 400 who received different services. Third, each of these three strata. The 4th youth to be selected for the comparison multivariate analysis methods will be stratum consists of those SDAs for group will be selected randomly, used, with various measures of whom information of the number of approximately 15 from each SDA. outcomes as the dependent variable. Following the above procedures, an participants in educational instruction Independent variables will include approximately equal number of youths is not available. participant characteristics (e.g., age, will be selected from each SDA. MIS Approximately an equal number of gender, pre-test scores) and measures of data for each of these youth, should be SDAs were drawn from each stratum the types of services received. available without exception, as will pre- Ordinary least squares (OLS) will be and, within each stratum, SDAs were test and post-test scores and the used as the estimation technique for sampled with the odds of selection measure of self-esteem. Similarly, most of these multivariate models, proportionate to the number of because SDAs typically require access to because of its desirable properties. participants being served,3 so that the school records as part of the assessment However, OLS is inefficient when the resulting sample would be process, we anticipate that high dependent variable is categorical (e.g., approximately self-weighting. The percentages of sampled youths and their whether the next school grade was number of SDAs in each stratum and the parents/guardians will sign the consent completed). In these cases, logit analysis number selected for the study are shown forms allowing the researchers’ access to will be used. below. this information. At least an 80% rate of 3. Methods to Maximize Response Rates Num- cooperation is anticipated. Percent of the SDA's Total ber of Most data to be used for the client youths receiving edu- num- SDAs 2. Procedures for the Collection of study represent pre-existing records ber of Information cational instruction SDAs in the collected by SDAs and schools. For this sample Sample Selection. As discussed reason, response rates should be quite high for all components of the data Low: 1% to 41% ...... 273 8 above, the sample has been drawn in a Med. 42% to 73% ...... 132 8 two-stage process. First, a sample of collection. Potentially, however, some High: 74% to 100% ...... 101 8 SDAs and their providers was chosen, participants or their parents may deny Information missing ...... 117 7 and next participants served by these the researchers access to school records. providers are selected, along with a To minimize this possibility, SDAs and randomly chosen sample of participants their service providers will be contacted 3 Dollar allocations for the Summer Youth program were used in the fourth stratum, because for the comparison group. far in advance of the start of the 1995 the number of participants receiving educational Degree of Accuracy. To meet DOL’s summer program, and their cooperation instruction is not available for these USAs. objectives for the survey, the sample will be enlisted. Thus, when youth are Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16515 first enrolled in the program they can be —Subcommittee Reports file a petition for leave to intervene. told immediately that they are being —Update on NASA SDB Program Such petition must identify (1) the asked to participate in the study and the —Committee Goals for 1995 interest of the petitioner in the study’s importance can be explained —Public Comment proceeding, (2) how that interest may be carefully to them. —Adjournment affected by he results of the proceeding, It is imperative that the meeting be with particular reference to the factors 4. Tests of Procedures held on this date to accommodate the set out in 10 CFR 2.1205(g), (3) the The data collection for the client-level scheduling priorities of the key petitioner’s areas of concern about the study involves no new survey or other participants. licensing activity which must be instruments. Therefore, no test of Dated: March 24, 1995. germane to the subject matter of the procedures is deemed necessary. Timothy M. Sullivan, proceeding, and (4) the circumstances establishing that the petition is timely 5. Contractor and Individuals Consulted Advisory Committee Management Officer. and that the petitioner has the requisite The Department of Labor has [FR Doc. 95–7747 Filed 3–29–95; 8:45 am] standing to intervene in the hearing. contracted with Social Policy Research BILLING CODE 7510±01±M Each petition must be submitted to Associates (SPR) to design, conduct, and the Secretary of the Commission, ATTN: analyze the study of outcomes. Key Chief, Docketing and Service Branch, personnel at SPR at Dr. Ronald NUCLEAR REGULATORY U.S. Nuclear Regulatory Commission, D’Amico, Dr. Katherine Dickinson, and COMMISSION Washington, D.C. Copies should be Mr. Richard West. They may be [Docket No. 40±40±8027±MLA±3, ASLBP served upon the Presiding Officer; the contacted at: Social Policy Research No. 94±700±04±MLA±3] Special Assistant; the Assistant General Associates, 200 Middlefield Road Suite Counsel for Hearings and Enforcement; 100, Menlo Park, CA 94025. Their Sequoyah Fuels Corp., (Source and the Executive Director for phone is (415) 617–8625. Material License No. SUB±1010); Operations, U.S. Nuclear Regulatory [FR Doc. 95–7743 Filed 3–29–95; 8:45 am] Notice of Hearing Commission, Washington, D.C. 20555. Copies should also be served on the BILLING CODE 4510±22±M March 24, 1995. Licensee, through its attorney Maurice Notice is hereby given that the Axelrad, Esq., Morgan, Lewis & Bockius, Presiding Officer in this proceeding has 1800 M Street, N.W., Washington, D.C. NATIONAL AERONAUTICS AND determined that there should be made 20036; Native Americans for a Clean SPACE ADMINISTRATION available an Opportunity for Environment, through its attorney Diane [Notice (95±026)] Intervention in the on-going proceeding Curran, Esq., c/o IEER, 6935 Laurel which involves a license amendment Avenue, Suite 204, Takoma Park, MD NASA Advisory Council (NAC), application of Sequoyah Fuels 20912; and The Cherokee Nation, Minority Business Resource Advisory, Corporation for its facility at Gore, through its attorney James Wilcoxen, Committee; Meeting Oklahoma. During the course of the Esq., Wilcoxen & Wilcoxen, P.O. box course of this proceeding, the Licensee 357, Muskogee, OK 74402–0357. AGENCY: National Aeronautics and has proposed modifications to the Space Administration. Pursuant to 10 CFR 2.1205(j)(2), any original license amendment application party may file an answer to a petition ACTION: Notice of meeting. dated May 6, 1994. Because the to intervene within 10 days of service of modifications are significant, a new SUMMARY: In accordance with the such petition. Federal Advisory Committee Act, Public opportunity for intervention is Pursuant to 10 CFR 2.1211(a), any Law 92–463, as amended, the National warranted. The new amendment member of the public who is not a party Aeronautics and Space Administration application seeks to change the existing to this proceeding may make a written announces a forthcoming meeting of the structure of the Licensee’s management statement in order to express his or her NASA Advisory Council, Minority team at its facility. views of the issues involved in this This proceeding is being conducted Business Resource Advisory Committee. license renewal proceeding. These under the Commission’s Informal statements are not evidence and do not DATES: April 26, 1995, 9 a.m. to 4 p.m. Hearing Procedures for Adjudications in become part of the decisional record ADDRESSES: NASA, Langley Research Materials and Operator Licensing under 10 CFR 2.1251(c). Written Center, Building 1219, Room 225, Proceedings, set forth in 10 CFR part 2, statements should be submitted to the Hampton, Virginia 23681–0001. subpart L. Further details appear in the Secretary of the Commission, ATTN: FOR FURTHER INFORMATION CONTACT: Mr. Statement of Considerations, Informal Chief, Docketing and Service Branch, Ralph C. Thomas, III, Office of Small Hearing Procedures for Materials U.S. Nuclear Regulatory Commission, and Disadvantaged Business Utilization, Licensing Adjudications, 54 Fed. Reg. Washington, D.C. 20555. National Aeronautics and Space 8269 (February 28, 1989). Documents Rockville, Maryland, March 24, 1995. Administration Room 9K70, 300 E relating to this proceeding are available James P. Gleason, Street SW, Washington, DC 20546, (202) for public inspection and copying at the Presiding Officer, Administrative Judge. 358–2088. Commission’s Public Document Room, [FR Doc. 95–7801 Filed 3–29–95; 8:45 am] SUPPLEMENTARY INFORMATION: The Gelman Building, 2120 L St., N.W., meeting will be open to the public up Washington, D.C. BILLING CODE 7590±01±M to the seating capacity of the room. The Sequoyah Fuels Corporation, Native agenda for the meeting is as follows: Americans for a Clean Environment RAILROAD RETIREMENT BOARD —Call to Order INACE) and The Cherokee Nation —Reading of Minutes (Nation) are parties to this proceeding. Agency Forms Submitted for OMB —Overview of Langley Research Center In accordance with 10 CFR 2.1205(i)(4), Review SDB Program any person whose interest may be —Report on Action Items from Last affected by this proceeding may, within Summary: In accordance with the Meeting 30 days of publication of this Notice, Paperwork Reduction Act of 1980 (44 16516 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices U.S.C. Chapter 35), the Railroad Summary of Proposal(s) Sections 3211(b) and 3221(c) of the Retirement Board has submitted the (1) Collection title: Earnings Information Railroad Retirement Tax Act shall be following proposal(s) for the collection Request credited to the Railroad Retirement of information to the Office of (2) Form(s) submitted: G–19–F Account and 65.8 percent of the taxes Management and Budget for review and (3) OMB Number: 3220–0184 collected under such Sections 3211(b) approval. (4) Expiration date of current OMB and 3221(c) plus 100 percent of the taxes collected under Section 3221(d) of Summary of Proposal(s) clearance: May 31, 1995 (5) Type of request: Revision of a the Railroad Retirement Tax Act shall be (1) Collection title: Repayment of Debt currently approved collection credited to the Railroad Retirement (2) Form(s) submitted: ID–22, G–145 (6) Respondents: Individuals or Supplemental Account. (3) OMB Number: 3220–0165 households Dated: March 21, 1995. (4) Expiration date of current OMB (7) Estimated annual number of Beatrice Ezerski, clearance: May 31, 1995 respondents: 3,000 Secretary to the Board. (5) Type of request: Revision of a (8) Total annual responses: 3,000 currently approved collection (9) Total annual reporting hours: 400 [FR Doc. 95–7757 Filed 3–29–95; 8:45 am] (6) Respondents: Individuals or (10) Collection description: Under BILLING CODE 7905±01±M households Section 2 of the Railroad Retirement (7) Estimated annual; number of Act, an annuity is not payable or is respondents: 125 reduced for any month(s) in which SECURITIES AND EXCHANGE (8) Total annual responses: 125 the beneficiary works for a railroad COMMISSION (9) Total annual reporting hours: 6 or earns more than prescribed Under Review by Office of (10) Collection description: Section 2 of amounts. The collection obtains Management and Budget the Railroad Unemployment earnings information not previously Insurance Act (RUIA) provides or erroneously reported by a Acting Agency Clearance Officer: unemployment and sickness beneficiary. David T. Copenhafer (202) 942–8800. benefits for qualified railroad Additional Information or Comments: Upon Written Request, Copy workers. When the RRB determines Copies of the form and supporting Available From: Securities and that an overpayment of RUIA documents can be obtained from Chuck Exchange Commission, Office of Filings benefits has occurred, it initiates Mierzwa, the agency clearance officer and Information Services, 450 Fifth action to notify the claimant and to (312–751–3363). Comments regarding Street, N.W., Washington, D.C. 20549. recover the amount owned the RRB. the information collection should be Rule Amendments and New Form: The collection obtains information addressed to Ronald J. Hodapp, Railroad Rule 24f–1—File No. 270–130 needed by the RRB to allow for the Retirement Board, 844 North Rush Rule 24f–2—File No. 270–131 repayment of the amount owed by Street, Chicago, Illinois 60611–2092 and Form 24F–2—File No. 270–399 the claimant by credit card, in the OMB reviewer, Laura Oliven (202– Notice is hereby given that pursuant addition to the customary form of 395–7316), Office of Management and to the Paperwork Reduction Act of 1980 payment by check or money order. Budget, Room 10230, New Executive (44 U.S.C. 3501 et seq.), the Securities Additional Information or Comments: Office Building, Washington, D.C. and Exchange Commission has Copies of the form and supporting 20503. submitted for OMB approval proposed documents can be obtained from Chuck Chuck Mierzwa, amendments to rules 24f–1 and 24f–2 Mierzwa, the agency clearance officer Clearance Officer. under the Investment Company Act of (312–751–3363). Comments regarding [FR Doc. 95–7756 Filed 3–29–95; 8:45 am] 1940, regarding registration under the the information collection should be Securities Act of 1933 of certain BILLING CODE 7905±01±M addressed to Ronald J. Hodapp, Railroad investment company securities. In Retirement Board, 844 North Rush addition, the Commission has submitted Street, Chicago, Illinois 60611–2092 and Determination of Quarterly Rate of for OMB approval proposed Form 24F– the OMB receiver, Laura Oliven (202– Excise Tax for Railroad Retirement 2 for filing annual notices required by 395–7316), Office of Management and Supplemental Annuity Program rule 24f–2. Budget, Room 10230, New Executive Rule 24f–1 permits certain investment Office Building, Washington, D.C. In accordance with directions in companies that have inadvertently sold 20503. Section 3221(c) of the Railroad more shares than are registered to Chuck Mierzwa, Retirement Tax Act (26 U.S.C., Section retroactively register the oversold shares Clearance Officer. 3221(c)), the Railroad Retirement Board under the Securities Act of 1933. The has determined that the excise tax [FR Doc. 95–7755 Filed 3–29–95; 8:45 am] reporting burden under the rule is imposed by such Section 3221(c) on approximately 2 hours per respondent. BILLING CODE 7905±01±M every employer, with respect to having The proposed amendments are technical individuals in his employ, for each in nature and will not change the Agency Forms Submitted for OMB work-hour for which compensation is reporting burden. Review paid by such employer for services Rule 24f–2 allows certain investment rendered to him during the quarter companies to register shares under the Summary: In accordance with the beginning April 1, 1995, shall be at the Securities Act of 1933 without Paperwork Reduction Act of 1980 (44 rate of 33 cents. specifying at the time of registration the U.S.C. Chapter 35), the Railroad In accordance with directions in total number of shares to be registered. Retirement Board has submitted the Section 15(a) of the Railroad Retirement Rule 24f–2 requires investment following proposal(s) for the collection Act of 1974, the Railroad Retirement companies electing to register an of information to the Office of Board has determined that for the indefinite number of shares to file an Management and Budget for review and quarter beginning April 1, 1995, 34.2 annual notice (‘‘Rule 24f–2 Notice’’) approval. percent of the taxes collected under with the Commission for purposes of Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16517 reporting the number of shares sold prepared by the Exchange. The currency per warrant and the spot price during the previous fiscal year. Form Exchange filed the original proposal for such currency. This requirement 24F–2 will provide a standard format for with the Commission on February 8, would apply to both initial and filing Rule 24f–2 Notices. The reporting 1995. Notice of the proposed rule maintenance margin. The minimum burden required under Rule 24f–2 is change appeared in the Federal Register ‘‘add-on’’ for out-of-the-money Mexican approximately 1.9 hours per on February 17, 1995.3 The Commission Peso Warrants would be 8% of the respondent. The proposed amendments is publishing this notice to solicit product of the units of underlying and form will not change the reporting comments on Amendment No. 1 to the currency per warrants and the spot price burden. proposed rule change from interested for such currency. The estimates of average burden hours persons. The Exchange believes that are made solely for the purposes of the Amendment No. 1 to the proposed rule Paperwork Reduction Act, and are not I. Self-Regulatory Organization’s change is consistent with Section 6 of derived from a comprehensive or even Statement of the Terms of Substance of the Act, in general, and furthers the the Proposed Rule Change a representative survey or study of the objectives of Section 6(b)(5) of the Act,5 costs of SEC rules and forms. The Amex proposes to amend its in particular, in that the proposal will Direct general comments to the pending proposal to list warrants on the promote just and equitable principles of Clearance Officer for the Securities and Exchange based upon the value of the trade and will contribute to the Exchange Commission at the address U.S. dollar in relation to the Mexican protection of investors and the public below. Direct any comments concerning peso (‘‘Mexican Peso Warrants’’) in interest. the accuracy of the estimated average order to specify applicable margin burden hours for compliance with requirements. The text of Amendment (B) Self-Regulatory Organization’s Commission rules and forms to David T. No. 1 to the proposed rule change is Statement on Burden on Competition Copenhafer, Acting Director, Office of available at the Office of the Secretary, The Exchange does not believe that Information Technology, Securities and Amex, and at the Commission. Amendment No. 1 to the proposed rule Exchange Commission, 450 Fifth Street, change will impose any inappropriate II. Self-Regulatory Organization’s N.W., Washington, DC 20549, and burden on competition. Statement of the Purpose of, and Clearance Officer for the SEC, Office of Statutory Basis for, the Proposed Rule (C) Self-Regulatory Organization’s Management and Budget, Paperwork Change Statement on Comments on the Reduction Project numbers 3235–0155 Proposed Rule Change Received From (Rule 24f–1), 3235–0159 (Rule 24f–2), In its filing with the Commission, the Members, Participants, or Others and (Form 24F–2), Room 3208, New Exchange included statements Executive Office Building, Washington, concerning the purpose of and basis for Written comments on Amendment DC 20543. Amendment No. 1 to the proposed rule No. 1 to the proposed rule change were change and discussed any comments it neither solicited nor received. Dated: March 21, 1995. received on the amendment. The text of III. Date of Effectiveness of the Margaret E. McFarland, these statements may be examined at Proposed Rule Change and Timing for the places specified in Item IV below. Deputy Secretary. Commission Action [FR Doc. 95–7839 Filed 3–29–95; 8:45 am] The Amex has prepared summaries, set forth in Sections (A), (B), and (C) below, Within 35 days of the date of BILLING CODE 8010±01±M of the most significant aspects of such publication of this notice in the Federal statements. Register or within such longer period (i) as the Commission may designate up to (A) Self-Regulatory Organization’s 90 days of such date if it finds such [Release No. 34±35524; International Series Statement of the Purpose of, and Release No. 795 File No. SR±Amex±95±04] longer period to be appropriate and Statutory Basis for, the Proposed Rule publishes its reasons for so finding or Change Self-Regulatory Organizations; Notice (ii) as to which the Exchange consents, of Filing of Amendment No. 1 to In the Exchange’s proposal to list and the Commission will: Proposed Rule Change by the trade Mexican Peso Warrants pursuant (a) By order approve such proposed American Stock Exchange, Inc. to Section 106 of the Amex Company rule change, as amended, or Relating to Margin Levels for Currency Guide, the Amex represented that ‘‘the (b) Institute proceedings to determine Warrants Based on the Value of the Exchange will require that customer whether the proposed rule change, as U.S. Dollar in Relation to the Mexican positions in Mexican Peso Warrants be amended, should be disapproved. Peso subject to the margin requirements IV. Solicitation of Comments applicable to foreign currency March 22, 1995. options.’’ 4 The Exchange is now Interested persons are invited to Pursuant to Section 19(b)(1) of the amending that proposal to specify submit written data, views and Securities and Exchange Act of 1934 objective margin levels that will be arguments concerning Amendment No. (‘‘Act’’),1 and Rule 19b–4 thereunder,2 applicable to Mexican Peso Warrants 1 to the proposed rule change. Persons notice is hereby given that on March 16, trading on the Exchange. Specifically, making written submissions should file 1995, the American Stock Exchange, the Exchange proposes that for Mexican six copies thereof with the Secretary, Inc. (‘‘Amex’’ or ‘‘Exchange’’) filed with Peso Warrants held ‘‘short’’ in a Securities and Exchange Commission, the Securities and Exchange customer’s account, the margin will be 450 Fifth Street, NW., Washington, DC Commission (‘‘Commission’’) 100% of the current market value of 20549. Copies of the submission, all Amendment No. 1 to the proposed rule each such warrant plus 12% of the subsequent amendments, all written change as described in Items I, II, and product of the units of underlying statements with respect to the proposed III below, which Items have been rule change, as amended, that are filed 3 See Securities Exchange Act Release No. 35363 with the Commission, and all written 1 15 U.S.C. 78s(b)(1) (1988). (February 13, 1995), 60 FR 9416. 2 17 CFR 240.19b–4 (1991). 4 Id. 5 15 U.S.C. 78f(b)(5) (1988). 16518 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices communications relating to the change was published for comment and average monthly volume was 1.9 proposed rule change, as amended, appeared in the Federal Register on million shares. The top 100 stocks between the Commission and any February 1, 1995.4 No comments were account for 33.42% of the Index, while person, other than those that may be received regarding the CBOE’s proposal. the bottom 100 stocks account for 5.69% withheld from the public in accordance of the Index. The prices for each of the II. Description of the Proposal with the provisions of 5 U.S.C. 552, will components ranged from $1.385 to be available for inspection and copying A. General $64.50. The average price was $19.37. in the Commission’s Public Reference The CBOE proposes to list and trade The shares outstanding for each of the Section, 450 Fifth Street, NW., cash-settled, European-style stock index Index component stocks ranged from 4.0 Washington, DC. Copies of such filing options on the S&P SmallCap, a million to 189.0 million with an average will also be available for inspection and capitalization-weighted index of 600 of 17.8 million. 5 copying at the principal office of the domestic stocks chosen for market size, S&P relies on several criteria to select Amex. liquidity, and industry group Index component stocks. Among other All submissions should refer to File representation. things, stocks must trade on the NYSE No. SR–Amex–95–04 and should be or Amex, or be Nasdaq National Market submitted by April 20, 1995. B. Composition of the Index securities; stocks must trade above $1.00 For the Commission, by the Division of The S&P SmallCap 600 Index has at the time of selection; companies with Market Regulation, pursuant to delegated been designed to measure the 50% or more of their shares outstanding authority.6 performance of small capitalization held by another corporation are not Margaret H. McFarland, stocks. The Index is a capailization- included; companies with 60% or more Deputy Secretary. weighted index of U.S. stocks with each of their shares held by insiders are not [FR Doc. 95–7842 Filed 3–29–95; 8:45 am] stock affecting the Index in proportion included; stocks must have at least a six month trading history; stocks that do BILLING CODE 8010±01±M to its market capitalization. As of October 19, 1994, the 600 not trade on any three days during a 12- component stocks ranged in month period are not included; and [Release No 34±35532; File No. SR±CBOE± capitalization from $933 million to $46 share turnover (annual trading volume 94±43] million, and the market capitalization of as a percent of shares outstanding) has the Index totalled $181 billion. The to exceed 20% on an annualized basis. Self-Regulatory Organizations; largest stock accounted for 0.51% of the Index component stocks are then chosen Chicago Board Options Exchange, total weighting of the Index, while the from the field of stocks that meets these Inc.; Order Approving a Proposed Rule smallest accounted for 0.03%. The criteria so that they balance the Change and Notice of Filing and Order median capitalization of the economic sector weighings, described Granting Accelerated Approval of components in the Index was $267 above. 6 Amendment No. 2 to a Proposed Rule million. A breakdown of the component Change Relating to the Listing of stocks by trading markets shows that C. Calculation of the Index Regular and Long-Term Index Options Nasdaq is the primary market for 53% The methodology used to calculate on the S&P SmallCap 600 Index of the weight of the Index (318 issues), the value of the Index is similar to that March 24, 1995. the New York Stock Exchange (‘‘NYSE’’) used to calculate the value of the S&P represents 43% (257 issues), and the 500 Index. The value of the Index is I. Introduction American Stock Exchange (‘‘Amex’’) determined by adding the price of each On November 8, 1994, the Chicago represents 4% (25 issues). The Nasdaq stock multiplied by the number of Board Options Exchange, Inc. (‘‘CBOE’’ stocks in the Index are authorized as shares outstanding. This sum is then or ‘‘Exchange’’) filed with the Securities Nasdaq National Market Securites, the divided by an index divisor (‘‘Index and Exchange Commision top tier of Nasdaq stocks. Divisor’’) which gives the Index a value (‘‘Commission’’ or ‘‘SEC’’), pursuant to A total of 98 industry groups are of 100 on its base date of December 31, Section 19(b)(1) of the Securities represented in the Index. The top five 1993. The Index Divisor is adjusted for Exchange Act of 1934 (‘‘Act’’) 1 and Rule groups and their weights are: (1) pertinent changes as described below in 19b–4 thereunder,2 a proposal to list Computer Software and Services— the section titled ‘‘Maintenance.’’ The and trade on the Exchange cash-settled, 9.01%; (2) Insurance—5.13%; (3) Index had a closing value of 96.82 on European-style index options on the Savings and Loans—4.88%; (4) Health September 30, 1994. Care Services—4.31%; and (5) Banks— Standard & Poor’s SmallCap 600 Index D. Maintenance (‘‘S&P SmallCap 600’’ or ‘‘Index’’), a Regional—4.26%. During the period broad-based capitalization weighted April through September 1994, the The S&P SmallCap 600 will be index designed to measure the average monthly trading volume for the maintained by S&P, and the CBOE has performance of small capitalization Index component stocks ranged from represented that it will not influence stocks. The CBOE filed Amendment No. 93,000 to 25.3 million shares. The any S&P decisions concerning 7 1 to its proposal on January 9, 1995, and maintenance of the Index. To maintain Amendment No. 2 to its proposal on Division of Market Regulation (‘‘Division’’), 5 March 14, 1995.3 The proposed rule Commission, dated January 5, 1995 (‘‘Amendment See Amendment No. 1, supra note 3. No. 1’’). 6 Id. The CBOE has represented that should the Amendment No. 2 provides that the CBOE will character of the Index change from the basic 6 17 CFR 200.30–3(a)(12) (1994). monitor the Index semi-annually, and will notify description contained herein, it shall so notify the 1 15 U.S.C. 78s(b)(1) (1988). staff of the Commission in the event that certain Commission staff, and such change could require a 2 17 CFR 240.19b–4 (1994). index component capitalization and volume levels filing pursuant to Section 19(b)(1) of the Exchange 3 Amendment No. 1 Provides the following fall below designated thresholds. See letter from Act and Rule 19b–4 thereunder. Telephone information regarding the Index: (1) Industry groups Joseph Levin, Vice-President, Research & Product conversation between Eileen Smith, Director, represented; (2) price and volume information Development, CBOE, to Michael Walinskas, Branch Product Development, Research Department, CBOE, regarding the component stocks; and (3) component Chief, Division, Commission, dated March 14, 1995 and Francois Mazur, Attorney, Division, stock seleciton criteria. See letter from Eileen (‘‘Amendment No. 2’’). Commission, on March 1, 1995. Smith, Director, Product Development, Research 4 See Securities Exchange Act Release No. 35280 7 See March 1, 1995 telephone conversation, Department, CBOE, to Steve Youhn, Attorney, (January 25, 1995), 60 FR 6325. supra note 6. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16519 continuity of the Index, the Index day prior to expiration, which will the requirements of the Act and the Divisor will be adjust to reflect certain normally be a Friday (‘‘A.M. rules and regulations thereunder events relating to the component stocks. Settlement’’).9 If a stock fails to open for applicable to a national securities These events include, but are not trading, the last available price on the exchange, and, in particular, the limited to, adjustments for company stock will be used in the calculation of requirements of Section 6(b)(5) of the additions and deletions, share changes, the Index, as is done for currently listed Act.12 The Commission finds that the stock splits, stock dividends, and stock indexes. trading of options on the Index will price adjustments due to company permit investors to participate in the G. Surveillance restructurings or spinoffs. Some price movements of the 600 securities corporate actions, such as stock splits The Exchange will use the same on which the Index is based. The and stock dividends, require simple surveillance procedures currently used Commission also believes that the changes in the common shares for each of the Exchange’s other index trading of options on the Index will outstanding and the stock prices of the options to monitor trading in Index allow investors holding positions in companies in the Index. Other corporate options and Index LEAPS on the S&P some or all of the securities underlying actions, such as share issuances, change SmallCap 600. These procedures the Index to hedge the risks associated the market value of the Index and include complete access to trading with their portfolios. Accordingly, the require an Index Divisor adjustment as activity in the underlying securities. In Commission believes S&P SmallCap 600 well. addition, the Intermarket Surveillance options will provide investors with an Although the CBOE is not involved in Group Agreement (‘‘ISG Agreement’’), important trading and hedging the maintenance of the Index, it has dated July 14, 1983, as amended January mechanism that should reflect represented that it will monitor the 29, 1990, will be applicable to the accurately the overall movement of Index on a semi-annual basis and will trading of options on the Index.10 stocks in the small-capitalization range notify staff of the Commission when: (1) H. Position Limits of U.S. equity securities. By broadening 10% of the capitalization of the Index the hedging and investment comprises securities with a market The Exchange proposes to establish opportunities of investors, the capitalization of less than $100 million; position limits for options on the S&P Commission believes that the trading of or (2) when 10% of the capitalization of SmallCap 600 at 100,000 contracts on S&P SmallCap 600 options will serve to the Index is made up of components either side of the market, and no more protect investors, promote the public with an average daily trading volume of than 60,000 of such contracts may be in interest, and contribute to the the series in the nearest expiration less than 10,000 shares over the maintenance of fair and orderly previous six months. 8 month. Exercise limits will be set at the 13 11 markets. same level as position limits. The The trading of S&P SmallCap 600 E. Index Option Trading Exchange represents that these limits options, however, raises several issues, In addition to regular Index options, are roughly equivalent, in dollar terms, including issues related to index design, the Exchange may provide for the listing to the limits applicable to comparable customer protection, surveillance, and of long-term (up to three years small-capitalization indexes, including market impact. For the reasons expiration) index options series the Wilshire Small Cap Index and the discussed below, the Commission Russell 2000 Index. (‘‘LEAPS’’) and reduced-value LEAPS believes that the CBOE has adequately on the Index. For reduced-value LEAPS, III. Discussion addressed these issues. the underlying value would be computed at one-tenth of the Index The Commission finds that the A. Index Design and Structure proposed rule change is consistent with level. The current and closing index The Commission finds that it is value of any such reduced-value LEAP appropriate and consistent with the Act 9 When the last trading day is moved because of will, after such initial computation, be Exchange holidays (such as when CBOE is closed to classify the Index as broad-based, and rounded to the nearest one-hundredth. on the Friday before expiration), the last trading day therefore to permit Exchange rules The Exchange seeks to have the for expiring options will be Wednesday and the applicable to the trading of broad-based exercise settlement value of Index options at discretion to list series in 21⁄2 point expiration will be determined at the opening of index options to apply to the Index intervals when the Index level is below regular Thursday trading. options. Specifically, the Commission 200. The minimum tick size for series 10 The CBOE is a member of the ISG, which was believes the Index is broad-based trading below $3 will be 1⁄16th and for formed on July 14, 1983 to, among other things, coordinate more effectively surveillance and series trading above $3 the minimum 12 15 U.S.C. 78f(b)(5) (1988). investigative information sharing arrangements in 1 13 tick will be ⁄8th. The trading hours for the stock and options markets. See Intermarket Pursuant to Section 6(b)(5) of the Act, the options on the Index will be from 8:30 Surveillance Group Agreement, July 14, 1983. The Commission must predicate approval of any new a.m. to 3:15 p.m. Chicago time. most recent amendment to the ISG Agreement, option or warrant proposal upon a finding that the which incorporates the original agreement and all introduction of such new derivative instrument is F. Settlement of Index Options amendments made thereafter, was signed by ISG in the public interest. Such a finding would be members on January 29, 1990. See Second difficult for a derivative instrument that served no The proposed options on the Index Amendment to the Intermarket Surveillance Group hedging or other economic function, because any will expire on the Saturday following Agreement, January 29, 1990. The members of the benefits that might be derived by market the third Friday of the expiration ISG are: the Amex; the Boston Stock Exchange, Inc.; participants likely would be outweighed by the the CBOE; the Chicago Stock Exchange, Inc.; the potential for manipulation, diminished public month. Trading in the expiring contract National Association of Securities Dealers, Inc.; the confidence in the integrity of the markets, and other month will normally cease at 3:15 p.m. NYSE; the Pacific Stock Exchange, Inc.; and the valid regulatory concerns. In this regard, the trading (Chicago time) on the immediately Philadelphia Stock Exchange, Inc. Because of the of listed options or warrants on the S&P SmallCap potential opportunities for trading abuses involving 600 Index will provide investors with a hedging preceding Thursday. The exercise stock index futures, stock options, and the vehicle that should reflect the overall movement of settlement value of the Index at option underlying stock, and the need for greater sharing the small-capitalization stock universe. The expiration will be calculations by S&P of surveillance information for these potential Commission also believes that these options and based on the opening prices of the intermarket trading abuses, the major stock index warrants will provide investors with a means by futures exchanges (e.g., the Chicago Mercantile which to make investment decisions in the small- component securities on the business Exchange and the Chicago Board of Trade) joined capitalization equity market, allowing them to the ISG as affiliate members in 1990. establish positions or increase existing positions in 8 See Amendment No. 2, supra note 3. 11 See CBOE Rule 24.5. small-capitalized stocks in a cost effective manner. 16520 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices because it reflects a substantial segment small capitalizations, floats, and trading environment that is designed to ensure, of the U.S. equities market, in general, volumes.17 Fourth, the CBOE has among other things, that: (1) The special and small-capitalization securities in represented that it will monitor the risks of options are disclosed to public particular. First, the Index consists of Index semi-annually and will notify the customers; (2) only investors capable of 600 relatively actively traded,14 small- staff of the Commission when: (1) ten evaluating and bearing the risk of capitalization domestic securities. percent of the capitalization of the Index options trading are engaged in such Second, the total capitalization of the is comprised of securities with a market trading; and (3) special compliance Index, as of October 19, 1994, was $181 capitalization of less than $100 million; procedures are applicable to options billion, with the market capitalizations or (2) ten percent of the capitalization of accounts. Accordingly, because the of the individual stocks in the Index the Index is made up of components Index options will be subject to the ranging from a high of $933 million to with an average daily trading volume of same regulatory regime as the other a low of $46 million, with a median less than 10,000 shares over the standardized options traded on the value of $267 million. Third, the Index previous six months.18 Fifth, the CBOE, the Commission believes that includes stocks of companies from a Exchange has proposed reasonable adequate safeguards are in place to broad range of industries, and no position and exercise limits for the ensure the protection of investors in industry segment comprises more than Index options that will serve to Index options. 9.01% of the Index’s total value.15 minimize potential manipulation and Fourth, as of October 19, 1994, no single other market impact concerns. Although C. Surveillance stock comprises more than 0.51% of the a position and exercise limit of 100,000 The Commission generally believes Index’s total value, and the percentage contracts is high by traditional that a surveillance sharing agreement weighting of the 100 largest issues in the standards, in dollar value it represents between an exchange proposing to list a Index accounted for only 33.42% of the $968,200,000 (based on the September stock index derivative product and the Index. Fifth, the Index selection and 30, 1994 Index closing value of 96.82), exchange(s) trading the stocks maintenance criteria will serve to an amount equivalent to that allowed underlying the derivative product is an ensure that the Index maintains its for other small-capitalization index important measure for surveillance of broad representative sample of stocks in options currently trading.19 the derivative and underlying securities the small-capitalization range of U.S. Accordingly, the Commission believes it markets. Such agreements ensure the equity securities. Accordingly, the is unlikely that attempted availability of information necessary to Commission believes it is appropriate to manipulations of the prices of the Index detect and deter potential classify the Index as broad-based. components would affect significantly manipulations and other trading abuses, The Commission believes that the the Index’s value. thereby making the stock index product general broad diversification, B. Customer Protection less readily susceptible to capitalizations, and relatively liquid manipulation.20 In this regard, the markets of the Index’s component stocks The Commission believes that a NYSE, Amex, and the NASD are all significantly minimize the potential for regulatory system designed to protect members of ISG.21 In addition, the manipulation of the Index. First, as public customers must be in place CBOE will apply the same surveillance discussed above, the Index represents a before the trading of sophisticated procedures as those used for existing broad cross-section of domestic small financial instruments, such as Index broad based index options trading on capitalization stocks, with no single options, can commence on a national the CBOE. industry group or stock dominating the securities exchange. The Commission Index. Second, the majority of the stocks notes that the trading of standardized D. Market Impact that comprise the Index are relatively exchange-traded options occurs in an The Commission believes that the actively traded.16 Third, the listing and trading of S&P SmallCap 600 17 Currently, 65% of the Index is accounted for by Index Options on the CBOE will not Commission believes that the Index stocks meetings the CBOE’s options listing selection and maintenance criteria will standards. Telephone conversation between Eileen adversely affect the underlying serve to ensure that the Index will not Smith, Director, Product Development, Research securities markets.22 First, as described be dominated by low-priced stocks with Department, CBOE, and Francois Mazur, Attorney, above, the Index is broad-based and Division, Commission, on February 28, 1995. These comprised of 600 stocks with no one standards, which are uniform among the options 14 A significant majority of the stocks are exchanges, provide that a security underlying an stock or industry group dominating the relatively actively traded, as indicated by an Index option must, among other things, meet the Index. Second, as noted above, the component median average daily trading volume of following requirements: (1) the public float must be stocks contained in the Index have 53,179 shares. Telephone conversation between at least 7,000,000; (2) there must be a minimum of Eileen Smith, Director, Product Development, 2,000 stockholders; (3) trading volume must have relatively large capitalizations and are Research Department, CBOE, and Francois Mazur, been at least 2.4 million over the preceding twelve relatively actively traded. Third, Attorney, Division, Commission, on February 23, months; and (4) the market price must have been existing CBOE stock index options rules 1995. at least $7.50 for a majority of the business days and surveillance procedures will apply The Commission notes that an index purportedly during the preceding three calendar months. See representing high capitalization stocks might not be CBOE Rule 5.3, Interpretation .01. to S&P SmallCap 600 options. Fourth, deemed to have actively traded stocks if the As a general matter, for broad-based index components stocks’ median average daily volume options, the Commission prefers that at least 50% 20 See Securities Exchange Act Release No. 31243 was only 53,179 shares. With regard to a small of an index’s components continue to be options- (October 5, 1992), 57 FR 45849. capitalization index, where almost by their nature eligible. Given the broad diversity of the SmallCap 21 See supra note 10. the most active stocks will likely not be included, 600 Index and the selection and maintenance 22 The CBOE has stated that it has the necessary a median average daily trading volume less than criteria, together with the fact that 65% of the systems capacity to support new series that would that for existing broad based indexes could be Index’s components are options eligible, the result from the introduction of the S&P SmallCap acceptable, depending upon the index’s other Commission believes that the Index will not be 600 options. In addition, the Options Price features. For the S&P SmallCap 600, the median readily susceptible to manipulation. See supra Reporting Authority (‘‘OPRA’’) has represented that average daily trading volume is acceptable given the Section II.B. additional traffic generated by options and LEAPs large number of component stocks and the 18 See Amendment No. 2, Supra note 3. on the S&P SmallCap 600 Index is within OPRA’s inclusion of criteria designed to exclude inactively 19 The Commission would not be inclined to capacity. See letter from Joseph P. Corrigan, traded stocks from being selected. approve such a high position limit if the position Executive Director, OPRA, to Eileen Smith, 15 See Section II.B, supra. limit dollar equivalent amount were substantially Director, Product Development, Research 16 See supra note 14. higher than as currently proposed. Department, CBOE, dated October 26, 1994. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16521 the position limits of 100,000 contracts provisions of 5 U.S.C. § 552, will be 1 to the NASD Rules of Fair Practice.2 on either side of the market, with no available for inspection and copying in Below is the text of the proposed rule more than 60,000 of such contracts in a the Commission’s Public Reference change. Proposed new language is in series in the nearest month expiration Section, 450 Fifth Street, N.W., italics; proposed deletions are in month, will serve to minimize potential Washington, D.C. 20549. Copies of such brackets. manipulation and market impact filing will also be available for NASD Rules of Fair Practice concerns. Fifth, the risk to investors of inspection and copying at the principal contra-party non-performance will be office of the CBOE. All submissions Business Conduct of Members minimized because the Index options should refer to File No. SR–CBOE–94– * * * * * will be issued and guaranteed by the 43 and should be submitted by April 20, Article III, Section 1 Options Clearing Corportation just like 1995. any other standardized option traded in Interpretation of the Board of Governors V. Conclusion the United States. Forwarding of Proxy and Other Materials Lastly, the Commission believes that For the reasons discussed above, the Introduction settling expiring S&P SmallCap 600 Commission finds that the proposal is options (including full-value and A member has an inherent duty in carrying consistent with the Act, and, in out high standards of commercial honor and reduced-value Index LEAPS) based on particular, Section 6 of the Act. the opening prices of component just and equitable principles of trade to It is therefore ordered, pursuant to forward (i) all proxy material which is securities is reasonable and consistent Section 19(b)(2) of the Act,24 that the properly furnished to it by the issuer of the with the Act. As noted in other contexts, proposed rule change (File No SR– securities or a stockholder of such issuer, to valuing expiring index options for CBOE–94–43), as amended, is approved. each beneficial owner of shares of that issue exercise settlement purposes based on For the Commission, by the Division of (or the beneficial owner’s designated opening prices rather than closing Market Regulation, pursuant to delegated investment adviser) which are held by the prices may help reduce adverse effects authority.25 member for the beneficial owner thereof and (ii) all annual reports, information statements on the securities underlying options on Margaret H. McFarland, 23 and other material sent to stockholders, the Index. Deputy Secretary. The Commission finds good cause for which are properly furnished to it by the [FR Doc. 95–7841 Filed 3–29–95; 8:45 am] issuer of the securities to each beneficial approving Amendment No. 2 prior to BILLING CODE 8010±01±M owner of shares of that issue (or the the thirtieth day after the date of beneficial owner’s designated investment publication of notice of filing thereof in adviser) which are held by the member for the Federal Register. Specifically, the beneficial owner thereof. For the Amendment No. 2 provides that the [Release No. 34±35533; File No. SR±NASD± assistance and guidance of members in CBOE will monitor, semi-annually, the 95±06] meeting their responsibilities, the Board of Governors has promulgated this Index and will notify staff of the Self-Regulatory Organizations; Notice Commission in the event that certain interpretation. The provisions hereof shall be of Filing of Proposed rule Change by followed by all members and failure to do so index component capitalization and National Association of Securities shall constitute conduct inconsistent with volume levels fall below designated Dealers, Inc. Relating to Interpretation high standards of commercial honor and just thresholds. The Commission believes of the Board of GovernorsÐ and equitable principles of trade in violation that this monitoring provision is not a Forwarding of Proxy and Other of Article III, Section 1 of the Rules of Fair material change that raises regulatory Material Under Article III, Section 1 of Practice of the Association. concerns not already addressed by the the NASD Rules of Fair Practice Interpretation proposal. Accordingly, the Commission Section 1. No member shall give a proxy believes it is consistent with Sections March 24, 1995. to vote stock which is registered in its name, 6(b)(5) and 19(b)(2) of the Act to Pursuant to Section 19(b)(1) of the except as required or permitted under the approve Amendment No. 2 to the Securities Exchange Act of 1934 provisions of Section 2 or 3 hereof, unless proposal on an accelerated basis. (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is such member is the beneficial owner of such stock. IV. Solicitation of Comments hereby given that on March 22, 1995,1 the National Association of Securities Section 2. Whenever an issuer or Interested persons are invited to stockholder of such issuer soliciting proxies Dealers, Inc. (‘‘NASD’’ or ‘‘Association’’) submit written data, views, and shall timely furnish to a member: filed with the Securities and Exchange arguments concerning Amendment No. (a)[1] sufficient copies of all soliciting Commission (‘‘SEC’’ or ‘‘Commission’’) 2. Persons, making written submissions material which such person is sending to the proposed rule change as described registered holders, and should file six copies thereof with the in Items I, II, and III below, which Items (b)[2] satisfactory assurance that he will Secretary, Securities and Exchange have been prepared by the NASD. reimburse such member for all out-of-pocket Commission, 450 Fifth Street, N.W., expenses, including reasonable clerical Washington, D.C. 20549. Copies of the I. Self-Regulatory Organization’s expenses incurred by such member in submission, all subsequent Statement of the Terms of Substance of connection with such solicitation, such amendments, all written statements the Proposed Rule Change member shall transmit promptly to each with respect to the proposed rule beneficial owner of stock of such issuer (or The NASD is proposing to amend its change that are filed with the the beneficial owner’s designated investment Interpretation of the board of Commission, and all written adviser) which is in its possession or control Governors—Forwarding of Proxy and and registered in a name other than the name communications relating the the Other Material under Article III, Section of the beneficial owner all such material proposed rule change between the furnished. Such material shall include a Commission and any person, other than 24 signed proxy indicating the number of shares those that may be withheld from the 15 U.S.C. 78s(b)(2) (1988). 25 17 CFR 200.30–3(a)(12) (1994). held for such beneficial owner and bearing a public in accordance with the 1 The NASD initially submitted the proposed rule symbol identifying the proxy with proxy change on February 5, 1995. Amendment No. 1, 23 Securities Exchange Act Release No. 30944 submitted on March 22, 1995, replaces the 2 NASD Manual, Rules of Fair Practice, Art. III, (July 28, 1992), 57 FR 33376. proposed rule change in its entirety. Sec. 1 (CCH) ¶ 2151.05. 16522 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices records maintained by the member, and a name other than the name of the beneficial most significant aspects of such letter informing the beneficial owner (or the owner all such material furnished. statements. beneficial owner’s designated investment This section shall not apply to beneficial adviser) of the time limit and necessity for owners residing outside of the United States (A) Self-Regulatory Organization’s completing the proxy form and forwarding it of America though members may voluntarily Statement of the Purpose of, and to the person soliciting proxies prior to the comply with the provisions hereof in respect Statutory Basis for, the Proposed Rule expiration of the time limit in order for the to such persons if they so desire. Change shares to be represented at the meeting. A Section 5. For purposes of this member shall furnish a copy of the symbols Interpretation, the term ‘‘designated The NASD reviewed recent to the person soliciting the proxies and shall investment adviser’’ is a person registered amendments to New York Stock also retain a copy thereof pursuant to the under the Investment Advisers Act of 1940 Exchange (‘‘NYSE’’) rules,4 to allow a provisions of rule 17a–4 of the General Rules who exercises investment discretion pursuant beneficial owner of stock to designate a and Regulations under the Securities to an advisory contract for the beneficial registered investment adviser to vote Exchange Act of 1934, 17 C.F.R. 240.17a–4. owner and is designated in writing by the proxies and receive proxy and related Notwithstanding the provisions of this beneficial owner to receive proxy and related issuer material in lieu of the beneficial section, a member may give a proxy to vote materials and vote the proxy, and to receive owner. Upon review, the NASD believes any stock pursuant to the rules of any annual reports and other material sent to national securities exchange to which the that providing beneficial owners with stock holders. The written designation must the right to make this type of member is also responsible provided that the be signed by the beneficial owner; be records of the member clearly indicate which addressed to the member; and include the designation benefits investors, and that procedure it is following. name of the designated investment adviser. uniformity between NASD rules and This section shall not apply to beneficial Members who receive such a written NYSE rules on this subject is owners residing outside of the United States designation from a beneficial owner must appropriate. The NASD also believes of America though members may voluntarily ensure that the designated investment that certain investment managers of comply with the provisions hereof in respect adviser is registered with the SEC pursuant ERISA Plans in the over-the-counter to such persons if they do desire. to the Investment Advisers Act of 1940 and market shold be allowed to vote Section 3. A member may give a proxy to that the investment adviser is exercising proxies.5 The NASD, therefore, proposes vote any stock registered in its name if such investment discretion over the customer’s member holds such stock as executor, to amend the Board of Governors account pursuant to an advisory contract to Interpretation—Forwarding of Proxy administrator, guardian, trustee, or in a vote proxies and/or to receive proxy soliciting similar representative or fiduciary capacity material, annual reports and other material. and Other Materials under Article III, with authority to vote. Members must keep records substantiating Section 1 of the NASD Rules of Fair A member which has in its possession or this information. Beneficial owners have an Practice (‘‘Interpretation’’) to make the within its control stock registered in the unqualified right at any time to rescind NASD rules on these subjects name of another member and which desires designation of the investment adviser to substantially similar to NYSE rules. to transmit signed proxies pursuant to the receive materials and to vote proxies. The provisions of Section 2, shall obtain the rescission must be in writing and submitted Designated Registered Investment requisite number of signed proxies from such to the member. Advisers holder of record. * * * * * The rule change would allow a Notwithstanding the foregoing, benefical owner of any issuer’s stock to (a) any member designated by a named 2. Procedures of the Self-Regulatory inform an NASD member that is the ERISA Plan fiduciary as the investment Organization manager of stock held as assets of the ERISA record holder of that stock that the Plan may vote the proxies in accordance with (a) The proposed rule change was beneficial owner has authorized a the ERISA Plan fiduciary responsibilities if approved by the NASD Board of designated registered investment the ERISA Plan expressly grants discretion to Governors at its meeting on January 16, adviser to receive and vote proxies and the investment manager to manage, acquire, 1995, which authorized the filing of the to receive related issuer material in lieu or dispose of any plan asset and has not rule change with the SEC. No other of the beneficial owner. expressly reserved the proxy voting right for The rule change would provide that, the named ERISA Plan fiduciary;3 and action by the NASD is necessary for the filing of the rule change. Article VII, for purposes of the Interpretation, a (b) any person registered as an investment ‘‘designated investment adviser’’ is a adviser under the Investment Advisers Act of Section 1(a)(4) of the By-Laws permits 1940 who exercises investment discretion the Board of Governors to make person registered under the Investment pursuant to an advisory contract for the interpretations of the Rules of Fair Advisers Act of 1940 who exercises beneficial owner and has been designated in Practice without recourse to the investment discretion pursuant to an writing by the beneficial owner to vote the membership for approval. advisory contract for the beneficial proxies for stock which is in the possession owner and has been designated in (b) Questions regarding this rule filing or control of the member, may vote such writing by the beneficial owner to may be directed to John H. Pilcher, proxies. receive and vote the proxy, and to General Counsel’s Office, at (202) 728– Section 4. A member when so requested by receive annual reports and other 8287. an issuer and upon being furnished with: material sent to stock holders. The (a)[1] sufficient copies of annual reports, II. Self-Regulatory Organization’s Statement information statements or other material sent beneficial owner would be required to of the Purpose of, and Statutory Basis for, sign a written designattion to the to stockholders, and the Proposed Rule Change (b)[2] satisfactory assurance that it will be member; such designation must be reimbursed by such issuer for all out-of- In its filing with the Commission, the addressed to the member; and such pocket expenses, including reasonable NASD included statements concerning designation must include the name of clerical expenses, shall transmit promptly to the purpose of and basis for the the designated investment adviser. The each beneficial owner (or the beneficial proposed rule change and discussed any beneficial owner would have an owner’s designated investment adviser) of comments it received on the proposed stock of such issuer which is in its rule change. The text of these statements 4 Securities Exchange Act Release No. 34596 possession and control and registered in a may be examined at the places specified (Aug. 25, 1994), 59 FR 45050 (Aug. 31, 1994) (‘‘Release 34–34596’’). 3 For purposes of this interpretation, the term in Item IV below. The NASD has 5 NYSE Rule 450(1) is comparable to the proposed ‘‘ERISA’’ is an acronym for the Employee prepared summaries, set forth in rule change. See 2 NYSE Guide, Rules of Board, Retirement Income Security Act of 1974. Sections (A), (B), and (C) below, of the Rule 450 (CCH) ¶ 2450. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16523 unqualified right at any time to rescind (B) Self-Regulatory Organization’s [Rel. No. IC±20967; 811±4355] designation of the investment adviser to Statement on Burden on Competition receive materials and to vote proxies. Kidder, Peabody Tax-Free Income The NASD does not believe that the The rescission would have to be in Fund; Notice of Application proposed rule change will result in any writing and submitted to the member. burden on competition that is not March 24, 1995. The rule change would require that a necessary or appropriate in furtherance AGENCY: Securities and Exchange member who receives a written of the purposes of the Act, as amended. Commission (‘‘SEC’’). designation from a beneficial owner ACTION: Notice of application for ensure that the beneficial owner’s (C) Self-Regulatory Organization’s deregistration under the Investment designated investment adviser is Statement on Comments on the Company Act of 1940 (the ‘‘Act’’). registered under the Investment Proposed Rule Change Received from Advisers Act of 1940; is exercising Members, Participants, or Others APPLICANT: Kidder, Peabody Tax-Free investment discretion pursuant to an Written comments were neither Income Fund. advisory contract for the beneficial solicited nor received. RELEVANT ACT SECTION: Section 8(f). owner; and is designated in writing by SUMMARY OF APPLICATION: Applicant the beneficial owner to receive and vote III. Date of Effectiveness of the requests an order declaring that it has proxies for stock which is in the Proposed Rule Change and Timing for ceased to be an investment company. possession of the member. Members Commission Action FILING DATE: The application was filed would be required to keep records Within 35 days of the date of 6 on March 7, 1995. substantiating this information. publication of this notice in the Federal HEARING OR NOTIFICATION OF HEARING: An ERISA Investment Managers Register or within such longer period (i) order granting the application will be as the Commission may designate up to issued unless the SEC orders a hearing. The rule change would provide that 90 days of such date if it finds such any member designated by a named Interested persons may request a longer period to be appropriate and hearing by writing to the SEC’s ERISA Plan fiduciary as the investment publishes its reasons for so finding or 7 Secretary and serving applicant with a manager of stock held as assets of the (ii) as to which the self-regulatory ERISA Plan may vote the proxies in copy of the request, personally or by organization consents, the Commission mail. Hearing requests should be accordance with the ERISA Plan will: fiduciary responsibilities of the ERISA received by the SEC by 5:30 p.m. on A. By order approve such proposed Plan expressly grants discretion to the April 18, 1995 and should be rule change, or investment manager to manage, acquire, accompanied by proof of service on or dispose of any plan asset, and has not B. institute proceedings to determine applicant, in the form of an affidavit or, expressly reserved the proxy voting whether the proposed rule change for lawyers, a certificate of service. right for the named ERISA Plan should be disapproved. Hearing requests should state the nature fiduciary. IV. Solicitation of Comments of the writer’s interest, the reason for the The NASD believes that the proposed request, and the issues contested. Interested persons are invited to rule change is consistent with the Persons may request notification of a submit written data, views, and provisions of Section 15A(b)(6) of the hearing by writing to the SEC’s arguments concerning the foregoing. Act 8 in that the rule change will benefit Secretary. Persons making written submissions investors by: (i) Providing investor with ADDRESSES: Secretary, SEC, 450 5th should file six copies thereof with the the ability to designate their registered Street NW., Washington, D.C. 20549. Secretary, Securities and Exchange investment advisers to receive and vote Applicant, 60 Broad Street, New York, Commission, 450 Fifth Street, N.W., their proxies and to receive other New York 10004. Washington, D.C. 20549. Copies of the material; (ii) providing authority to submission, all subsequent FOR FURTHER INFORMATION CONTACT: certain investment managers of ERISA amendments, all written statements Deepak T. Pai, Staff Attorney, at (202) Plans to receive and vote proxies and with respect to the proposed rule 942–0574, or Robert A. Robertson, (iii) providing desired uniformity change that are filed with the Branch Chief, at (202) 942–0564 between NASDA rules and NYSE rules Commission, and all written (Division of Investment Management, on such proxy procedures. communications relating to the Office of Investment Company proposed rule change between the Regulation). 6 Release 34–34596, supra n. 4, clarified that the Commission and any person, other than SUPPLEMENTARY INFORMATION: NYSE would provide certain additional guidance The following is a summary of the regarding the NYSE rule changes under an NYSE those that may be withheld from the Information Memo. The NASD’s rule change would public in accordance with the application. The complete application contain substantially similar requirements as provisions of 5 U.S.C. 552, will be may be obtained for a fee at the SEC’s described under Release 34–34596 and contained in Public Reference Branch. the NYSE Information Memo (See NYSE available for inspection and copying in Information Memo No. 94–41 (Sept. 7, 1994). the Commission’s Public Reference Applicant’s Representations: 7 ERISA defines the term ‘‘investment manager’’ Room. Copies of such filing will also be to mean any fiduciary (other than a trustee or available for inspection and copying at 1. Applicant is an open-end named fiduciary, as defined in Section 1102(a)(2) of the principal office of the NASD. All management investment company Title 29): (A) Who has the power to manage, submissions should refer to SR–NASD– organized as a Massachusetts business acquire, or dispose of any asset of a plan; (B) who trust. On July 19, 1985, applicant filed is: (i) registered as an investment adviser under the 95–06 and should be submitted by April Investment Advisers Act of 1940; (ii) a bank, as 20, 1995. a notification of registration pursuant to defined in that Act; or (iii) an insurance company section 8(b) of the Act and a registration qualified to perform services described in For the Commission, by the Division of statement pursuant to the Securities Act subparagraph (A) under the laws of more than one Market Regulation, pursuant to delegated of 1933. The registration statement State; and (C) has acknowledged in writing that he authority, 17 CFR 200.30–3(a)(12). is a fiduciary with respect to that plan. See 29 became effective on November 22, 1985, U.S.C. 1002 (38). [FR Doc. 95–7837 Filed 3–29–95; 8:45 am] and applicant commenced the initial 8 15 U.S.C. 78o–3. BILLING CODE 8010±01±M public offering of its National Tax-Free 16524 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Series’ (the ‘‘National Series’’) shares [Release No. 35±26258] Northeast now proposes to issue and/ and New York Tax-Free Series’ (the or purchase and sell to DRP ‘‘New York Series’’) shares on December Filings Under the Public Utility Holding participants, through December 31, 26, 1985. Applicant’s Massachusetts Company Act of 1935, as amended 2005, the remaining 652,401 common Tax-Free Series never commenced a (``Act'') shares under the DRP. For the same public offering of its shares. March 24, 1995. period Northeast also proposes to issue 2. On June 27, 1990, applicant’s and/or purchase and sell to DRP Notice is hereby given that the participants up to an additional 20 trustees approved a plan to liquidate following filing(s) has/have been made applicant’s assets and distribute the million common shares under the DRP. with the Commission pursuant to In all respects, the terms and conditions proceeds in the form of cash to provisions of the Act and rules applicant’s shareholders. Proxy associated with the issuance, promulgated thereunder. All interested acquisition and sale of the shares to be materials were filed with the SEC and persons are referred to the application(s) were distributed, on or about August 16, issued under the DRP will remain as and/or declaration(s) for complete previously authorized. 1990, to applicant’s shareholders of statements of the proposed record as of July 23, 1990. The transaction(s) summarized below. The New England Electric System, et al. liquidation was approved by applicant’s application(s) and/or declaration(s) and (70–8475) shareholders at a meeting held on any amendments thereto is/are available New England Electric System November 2, 1990. for public inspection through the (‘‘NEES’’), a registered holding 3. On November 9, 1990, applicant Commission’s Office of Public company, and New England Electric liquidated the National Series’ and New Reference. Resources, Inc. (‘‘NEERI’’), its wholly York Series’ assets. The portfolio Interested persons wishing to owned, nonutility subsidiary company, securities were disposed of by comment or request a hearing on the both of 25 Research Drive, Westborough, competitive bidding from 16 dealers, application(s) and/or declaration(s) Massachusetts 01582, have filed an with the transactions being should submit their views in writing by application-declaration under sections consummated with the highest bidder. April 17, 1995, to the Secretary, 6(a), 7, 9(a), 10 and 12(b) of the Act and No brokerage commissions were paid Securities and Exchange Commission, rule 45 thereunder. The Commission with respect to these transactions. On Washington, D.C. 20549, and serve a issued a notice of the transaction on November 13, 1990, applicant copy on the relevant applicant(s) and/or November 18, 1994 (HCAR No. 26163). distributed all of the National Series’ declarant(s) at the address(es) specified Subsequently, applicants-declarants assets, $11,002,504, to its shareholders below. Proof of service (by affidavit or, amended the filing to request additional who received distributions equal to in case of an attorney at law, by authorization, thus necessitating this their proportionate shares. Each certificate) should be filed with the supplemental notice. National Series’ shareholder received request. Any request for hearing shall NEES proposes to provide financing $15.26 per share. Also on November 13, identify specifically the issues of fact or to NEERI by making capital contributions up to an additional $12.7 1990, applicant distributed all of the law that are disputed. A person who so million and/or by lending to NEERI New York Series’ assets, $3,650,797, to requests will be notified of any hearing, from time to time additional amounts its shareholders who received if ordered, and will receive a copy of not to exceed $12.7 million at any one distributions equal to their any notice or order issued in the matter. time, such loans to be in the form of proportionate shares. Each New York After said date, the application(s) and/ non-interest bearing subordinated notes. Series’ shareholder received $14.88 per or declaration(s), as filed or as amended, share. NEERI proposes to enter into a joint may be granted and/or permitted to arrangement with Separation 4. All expenses incurred in become effective. Technologies, Inc. (‘‘STI’’), the connection with the liquidation, Northeast Utilities (70–7701) developer of a process for separating consisting of legal, accounting, printing unburned carbon from coal ash. As part and other expenses, were borne by Northeast Utilities (‘‘Northeast’’), 174 of its joint arrangement with STI, NEERI Kidder, Peabody & Co. Incorporated, Brush Hill Avenue, West Springfield, proposes to enter into a project with STI applicant’s principal underwriter. Massachusetts 01089, a registered and STI Projects, a Florida General 5. As of the date of the application, holding company, has filed a post- Partnership between STI and Oxbow applicant had no assets, liabilities or effective amendment to its declaration Carbon International, Inc. (‘‘STIP’’), shareholders. Applicant is not a party to under Sections 6(a) and 7 of the Act and involving the processing of coal ash at any litigation or administrative Rule 54 thereunder. an electric generation facility in the proceeding. By orders dated May 23, 1990 (HCAR New England/New York region (‘‘NE/ 6. Applicant is neither engaged in, nor No. 25093) and July 29, 1994 (HCAR No. NY Project’’) owned by a nonaffiliated does it propose to engage in, any 26092, the Commission authorized, electric company (‘‘Owner’’). NEERI business activities other than those among other things, Northeast to issue plans to invest up to $700,000 in the necessary for the winding-up of its and sell, and/or purchase in the open NE/NY Project in return for 15% of affairs. Applicant intends to terminate market and sell, from time-to-time certain project revenues. its existence as a Massachusetts through December 31, 1995 up to 10 In addition, NEERI will provide business trust as soon as practicable. million common shares under consulting services to STI and/or STIP Northeast’s Dividend Reinvestment Plan in connection with the NE/NY Project For the Commission, by the Division of (‘‘DRP’’). As of March 1, 1995, Northeast for a fee. Such services may include Investment Management, pursuant to has issued and sold 4,470,352 marketing, sales, higher value product delegated authority. authorized common shares and research and development and Margaret H. McFarland, 4,877,247 shares have been purchased engineering consultation on balance of Deputy Secretary. in the open market by an agent acting plant equipment matters. STIP will be [FR Doc. 95–7843 Filed 3–29–95; 8:45 am] on behalf of Northeast and distributed to responsible for processing the ash at the BILLING CODE 8010±01±M DRP participants pursuant to the DRP. Owner’s facility. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16525 NEERI proposes to enter into similar For the Commission, by the Division of company, organized as a corporation joint arrangements with STI and STIP at Investment Management, pursuant to under the laws of Maryland. On July 22, other locations where STI equipment delegated authority. 1988, Applicant registered under the will be installed. NEERI’s investment in Margaret H. McFarland, Act and filed a registration statement these other utility locations is Deputy Secretary. under the Securities Act of 1933 (the anticipated to range between $500,000 [FR Doc. 95–7838 Filed 3–29–95; 8:45 am] ‘‘1993 Act’’). Applicant’s registration and $2.0 million per installation, with a BILLING CODE 8010±01±M statement was not declared effective, cumulative investment not to exceed and Applicant has made no public $10 million. NEERI’s investments in offering of its shares. [Investment Company Act Release No. 2. Under letter dated February 15, such future projects may take the form 20966; 811±56211] of, without limitation, joint ventures, 1995, Applicant requested that its general partnerships, limited TCW High Yield Fund, Inc.; Notice of registration statement under the 1933 Act be withdrawn pursuant to Rule 477 partnerships, teaming agreements, Application thereunder. royalties or other revenue sharing, March 24, 1995. 3. Applicant has never issued or sold special purpose entities, loans, and AGENCY: Securities and Exchange shares of which it is the issuer. equity participation. NEERI’s project Commission (‘‘SEC’’). Applicant has no shareholders, investments may involve the acquisition ACTION: Notice of application for liabilities, or assets. Applicant is not a of voting securities or interests not deregistration under the Investment party to any litigation or administrative exceeding 9.9% Company Act of 1940 (the ‘‘Act’’). proceeding. NEERI proposes to perform research 4. Applicant is not engaged, and does with STI to further refine the carbon- APPLICANT: TCW High Yield Fund, Inc. not propose to engage, in any business rich and low carbon processed waste RELEVANT ACT SECTION: Section 8(f). activities other than those necessary for stream and to find other applications for SUMMARY OF APPLICATION: Applicant the winding-up of its affairs. After the the STI separation process in recycling. seeks an order declaring it has ceased to Commission issues an order declaring NEERI states that it will not expend be an investment company. that Applicant has ceased to be an investment company, Applicant intends more than $1 million on such research FILING DATE: The application was filed to file Articles of Dissolution with the activities. NEERI also proposes to offer on February 24, 1995. marketing and engineering advice and Maryland Department of Assessments HEARING OR NOTIFICATION OF HEARING: An and Taxation in Baltimore, Maryland. consulting services to STI and STIP. order granting the application will be Furthermore, NEERI proposes to issued unless the SEC orders a hearing. For the SEC, by the Division of Investment Management, under delegated authority. acquire up to $1 million of STI’s 6% Interested persons may request a Margaret H. McFarland, cumulative convertible preferred stock hearing by writing to the SEC’s at a price of $6.50 per share (‘‘Shares’’). Secretary and serving applicant with a Deputy Secretary. All or any portion of the Shares shall be copy of the request, personally or by [FR Doc. 95–7840 Filed 3–29–95; 8:45 am] convertible at any time, or from time to mail. Hearing requests should be BILLING CODE 8010±01±M time, at NEERI’s option, into the same received by the SEC by 5:30 p.m. on number of shares of STI common stock. April 18, 1995, and should be The Shares will automatically convert to accompanied by proof of service on the DEPARTMENT OF STATE applicant, in the form of an affidavit or, shares of common stock (upon the [Public Notice 2184] closing of an initial public offering of for lawyers, a certificate of service. Hearing requests should state the nature STI common stock) in which STI’s Notice of Intent To Prepare a of the writer’s interest, the reason for the aggregate gross proceeds from such Programmatic Environmental Impact request, and issues contested. Persons offering exceed $5 million and in which Statement Concerning the Department may request notification of a hearing by of State's Permitting Process for the share offering price is $6.50 or more. writing to the SEC’s Secretary. Dividends ion the Shares will accrue International Bridges Along the Texas/ ADDRESSES: Secretary, SEC, 450 Fifth cumulatively at a rate of 6% per annum Mexico Border Street NW., Washington, D.C. 20549. of the price per Share from the date of Applicant, 865 South Figueroa Street, LEAD AGENCY: Department of State, payment for the Share to the date of its Suite 1800, Los Angeles, California Washington, D.C. conversion, if any, to common. The 6% 90017. COOPERATING AGENCIES: cumulative dividend would be paid in FOR FURTHER INFORMATION CONTACT: Environmental Protection Agency (EPA) STI common shares upon conversion of Diane L. Titus, Paralegal Specialist, at U.S. Fish and Wildlife Service (F&WS) Shares to common. (202) 942–0584, or Barry D. Miller, U.S. Coast Guard NEERI will have the right to exercise Senior Special Counsel, at (202) 942– International Boundary and Water one vote per Share on all matters 0564 (Division of Investment Commission (IBWC), U.S. Section submitted to a vote of STI common Management, Office of Investment General Services Administration (GSA) stock generally. NEERI will also have Company Regulation). SUMMARY: Under Executive Order 11423 the option to appoint one member of the SUPPLEMENTARY INFORMATION: The (August 16, 1968) and the International STI Board of Directors. NEERI will have following is a summary of the Bridge Act of 1972, 33 U.S.C. 535 et protection against dilution of the Shares application. The complete application seq., the U.S. Department of State (‘‘the for a period of five years after their may be obtained for a fee from the SEC’s Department’’) has the authority, inter purchase. NEERI states that its Public Reference Branch. alia, to issue permits for the investment in the Shares will result in construction of bridges along the Texas/ Applicant’s Representations NEERI’s ownership of not more than 5% Mexico border. (Once such a permit is of the voting securities of STI. 1. Applicant is a closed-end, granted, other agencies, including the diversified management investment U.S. Section of the IBWC and the U.S. 16526 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Coast Guard, require additional permits organizations may participate in the DEPARTMENT OF TRANSPORTATION related to their respective regulatory scoping process by providing written functions; the U.S. Army Corps of comments or by attending the scoping Federal Aviation Administration Engineers may also require separate meetings. Written comments may be permits.) To date, with respect to each forwarded to either: Proposed Airspace Reclassification in the Vicinity of Bellingham, WA, in permit application, the Department has U.S. Department of State, OES/ETC, issued a Finding of No Significant Support of Transport Canada Terminal Attn: Ms. Charlotte Roe, 2201 C Street Airspace Design; Public Meeting Impact, based on an Environmental NW., Washington, D.C. 20520, Tel: Assessment (EA), consistent with the (202) 647–3367, FAX: (202) 736–7351 AGENCY: Federal Aviation requirements of the National USAED, Fort Worth, CESWF–PL–RE, Administration (FAA), DOT. Environmental Policy Act of 1969, as Attn: Mr. Eric Verwers, P.O. Box ACTION: Notice of meeting; correction. amended, 42 U.S.C. 4321 et seq. 17300, Fort Worth, Texas 76102– (NEPA). 0300, Tel: (817) 334–2370, FAX: (817) SUMMARY: This action corrects errors With several bridges permitted to date 885–7539. made in the supplementary information and given the expectation of continuing portion of the Notice of Informal permit applications, the Department Comments and suggestions should be Airspace Meetings for the Airspace intends to prepare voluntarily a received no later than 60 days following Reclassification in the Vicinity of Programmatic Environmental Impact this notice in order to be considered in Bellingham, WA, in support of Statement (PEIS) to assess the the Draft PEIS. Transport Canada Terminal Airspace cumulative environmental impacts in Charlotte Roe, Design, to be held May 9 and May 10, the United States of existing bridges Multilateral Affairs Officer, Department of 1995. State, OES/ETC. along the Texas/Mexico border. The FOR FURTHER INFORMATION CONTACT: PEIS will also describe the general types [FR Doc. 95–7816 Filed 3–29–95; 8:45 am] Melodie DeMarr, Federal Aviation of projects expected in the foreseeable BILLING CODE 4710±09±M Administration, Northwest Mountain future and will address the types of Regional Office, ANM–530, 1601 Lind impacts that are expected to result from Avenue, SW., Renton, WA 98055–4056; the continuation of present permitting [Public Notice 2183] telephone: (206) 227–2532. procedures. The Department will use SUPPLEMENTARY INFORMATION: In Federal the results of the PEIS to inform both United States International Register Document 95–7030 published the manner and substance of its Telecommunications Advisory on March 22, 1995 (60 FR 15172), the permitting process. Committee Radiocommunications telephone number for the contact person In undertaking this PEIS, the Sector Study Group 8ÐMobile should be (206) 227–2532 and under Department has elected to follow the Services; Meeting Notice Meeting Procedures, ‘‘FAA Southern procedures pertaining to the preparation The Department of State announces Region’’ should be ‘‘FAA Northwest of programmatic environmental impact Mountain Region.’’ statements contained in the NEPA that the United States International regulations promulgated by the Council Telecommunications Advisory Issued in Washington, DC on March 24, on Environmental Quality, 40 CFR 1500 Committee (ITAC), 1995. et seq., as well as by the Department, 22 Radiocommunications Sector Study Harold W. Becker, CFR 161 et seq. The Department, EPA, Group 8—Mobile Services will meet on Manager, Airspace-Rules and Aeronautical F&WS, IBWC, Coast Guard, GSA and 19 April 1995 at 10 a.m. to 1 p.m., in Information Division. other Federal, state and local agencies room 1408 at the Department of State, [FR Doc. 95–7831 Filed 3–29–95; 8:45 am] will be able to develop supplemental 2201 C Street, Washington, DC 20520. BILLING CODE 4910±13±P EISs or incorporate the PEIS into future Study Group 8 studies and develops NEPA documentation (EAs or EISs), as recommendations concerning technical allowed by NEPA, for activities or and operating characteristics of mobile, Notice of Intent to Rule on Application locations not specifically addressed in radiodetermination, amateur and related to Impose and Use the Revenue From the PEIS. satellite services. a Passenger Facility Charge (PFC) at Lafayette Regional Airport, Lafayette, ALTERNATIVES PROPOSED: Alternatives to This April meeting will review the be considered include the No Action results of the ad hoc groups and task Louisiana alternative. Other alternatives identified groups of the study group and begin AGENCY: Federal Aviation during the scoping process will be preparations for the June 12–16, 1995 Administration (FFA), DOT. international meeting of Study Group 8. discussed in the Draft PEIS. ACTION: Notice of intent to rule on Members of the General Public may PUBLIC SCOPING: Comments received as application. a result of this notice will be used to attend the meeting and join in the assist the Department primarily in discussions, subject to the instructions SUMMARY: The FAA proposes to rule and identifying the alternatives to be of the Chairman, John T. Gilsenan. invites public comment on the included in the PEIS and in assessing Note: In order to gain access to State application to impose and use the the impacts, in the United States, of Department for this meeting, please call 202– revenue from a PFC at Lafayette these alternatives on the quality of the 647–0201 and leave your name; also, please Regional Airport under the provisions of human environment. Scoping meetings provide your social security number, and the Aviation Safety and Capacity will be held the week of May 8 in date of birth. Please use ‘‘C’’ Street Entrance. Expansion Act of 1990 (Title IX of the Harlingen, Laredo and El Paso, Texas to Dated: March 21, 1995. Omnibus Budget Reconciliation Act of identify alternatives and significant Warren G. Richards, 1990) (Pub. L. 101–508) and Part 158 of issues related to the PEIS. The exact Chairman, U.S. ITAC for ITU- the Federal Aviation Regulations (14 dates, times and locales for these Radiocommunications Sector. CFR Part 158). meetings will be published in local [FR Doc. 95–7825 Filed 3–29–95; 8:45 am] DATES: Comments must be received on newspapers. Individuals or BILLING CODE 4710±45±M or before May 1, 1995. Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16527 ADDRESSES: Comments on this Proposed class or classes of air The MIS/EIS will consider a number application may be mailed or delivered carriers to be exempted from collecting of alternatives including: taking no in triplicate copies to the FAA at the PFC’s: action, reconstruction on existing following address: Mr. Ben Guttery, All air taxi/commercial operators alignment and construction on new Federal Aviation Administration, (ATCO) filing or required to file FAA alignment and incorporate mass transit Southwest Region, Airports Division, Form 1800–31. alternatives currently under study. Planning and Programming Staff, ASW– Any person may inspect the The MIS/EIS process will solicit input 610D, Fort Worth, Texas 76193–0610. application in person at the FAA office from all appropriate Federal, State and In addition, one copy of any listed above under FOR FURTHER local agencies. A public hearing will be comments submitted to the FAA must INFORMATION CONTACT and at the FAA held. Public notice will be given of the be mailed or delivered to Mr. Gregory Regional Airports Office located at: time and place of the hearing. The draft Roberts, Director of Aviation, at the Federal Aviation Administration, EIS will be available for public agency following address: Mr. Gregory Roberts, Southwest Region, Airports Division, review and comment. Director of Aviation, Lafayette Regional Planning and Programming Staff, ASW– To ensure that the full range of issues Airport, 200 Terminal Drive, Lafayette, 610D, 2601 Meacham Boulevard, Fort related to this proposed action are Louisiana 70508. Worth, Texas 76137–4298. addressed and all significant issues Air carriers and foreign air carriers In addition, any person may, upon identified, comments and suggestions may submit copies of the written request, inspect the application, notice are invited from all interested parties. comments previously provided to the and other documents germane to the Comments or questions concerning this Airport under § 158.23 of Part 158. application in person at Lafayette proposed action and the EIS should be FOR FURTHER INFORMATION CONTACT: Mr. Regional Airport. directed to the FHWA at the address Ben Guttery, Federal Aviation Issued in Fort Worth, Texas on March 8, provided above. Administration, Southwest Region, 1995. (Catalog of Federal Domestic Assistance Airports Division, Planning and Edward N. Agnew, Program Number 20.205, Highway Research, Programming Staff, ASW–610D, Fort Assistant Manager, Airports Division. Planning and Construction. The regulations Worth, Texas 76193–0610, (817) 222– [FR Doc. 95–7832 Filed 3–29–95; 8:45 am] implementing Executive Order 12372 regarding intergovernmental consultation on 5614. BILLING CODE 4910±13±M The application may be reviewed in Federal programs and activities apply to this person at this same location. program.) Issued on: March 23, 1995. SUPPLEMENTARY INFORMATION: The FAA Federal Highway Administration proposes to rule and invites public Mike Herron, comment on the application to impose Environmental Impact Statement: Technology Operations Engineer, Oklahoma and use the revenue from a PFC at Oklahoma County, Oklahoma City, Oklahoma. [FR Doc. 95–7815 Filed 3–29–95; 8:45 am] Lafayette Regional Airport under the AGENCY: Federal Highway provisions of the Aviation Safety and Administration (FHWA), DOT. BILLING CODE 4910±22±M Capacity Expansion Act of 1990 (Title ACTION: Notice of intent. IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. SUMMARY: The FHWA is issuing this Environmental Impact Statement: Rock 101–508) and Part 158 of the Federal notice to advise the public that an County, Wisconsin Aviation Regulations (14 CFR Part 158). Environment Impact Statement (EIS) AGENCY: Federal Highway On March 8, 1995, the FAA will be prepared for the proposed Administration (FHWA), DOT. highway project in Oklahoma County, determined that the application to ACTION: Notice of Intent. impose and use the revenue from a PFC Oklahoma. submitted by the Airport was FOR FURTHER INFORMATION CONTACT: SUMMARY: The FHWA is issuing this substantially complete within the Bruce A. Lind, Acting Division notice to advise the public that an requirements of § 158.25 of Part 158. Administrator, Federal Highway Environmental Impact Statement (EIS) The FAA will approve or disapprove the Administration, 200 Northwest Fifth will be prepared for a proposed bypass application, in whole or in part, no later Street, Room 454, Oklahoma City, south and west of Janesville on State than June 21, 1995. Oklahoma 73102, Telephone: (405) 231– Highway (STH) 11, Rock County, The following is a brief overview of 4725. Wisconsin. the application. SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: Level of the proposed PFC: $3.00 FHWA, in cooperation with the Mr. Richard C. Madrzak, Statewide Proposed charge effective date: Oklahoma Department of Projects Engineer, Federal Highway September 1, 1995 Transportation, will prepare an EIS in Administration, 4502 Vernon Proposed charge expiration date: conjunction with a Major Investment Boulevard, Madison, Wisconsin 53705– October 31, 2002 Study (MIS) for a proposal to improve 4905. Telephone (608) 264–5968. Total estimated PFC revenue: Interstate 40 in Oklahoma County. The SUPPLEMENTARY INFORMATION: The $2,946,976.00 proposed improvement would involve FHWA, in cooperation with the Brief description of proposed project(s): reconstructing Interstate 40 from the I– Wisconsin Department of Projects to Impose and Use PFC’s 40/Meridian Avenue interchange east Transportation, will prepare an 9.6 kilometers (6 miles) to the I–40/ Environmental Impact Statement to Airside ACAA Lifting Device; 1235/1–35 interchange in Oklahoma improve STH 11 in Rock County, Terminal Improvements and Reimbursement; PFC Development, Implementation, and City, Oklahoma County. Improvements Wisconsin. The proposed improvement Administration; and Perimeter Road to this segment of Interstate 40 are creates an arterial bypass south and Rehabilitation. considered necessary to provide for the west of Janesville on STH 11 for a projected traffic demand, to enhance distance of about 9.7 km (6 mi). A new Projects to Impose PFC’s safety and to replace structurally structure over the Rock River is Rehabilitate runway 11/29. deficient bridge structures. proposed. 16528 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices STH 11 is identified in WiosDOT’s Environmental Impact Statement: San from 6:00 to 8:00 p.m. at the Sanyo Corridors 2020 as a 2-lane connector Diego County, CA Building, 2055 Sanyo Avenue, Otay linking Monroe and southwestern Mesa. Scoping meetings will also be Wisconsin to Rock County. The 1991 AGENCY: Federal Highway arranged with responsible/cooperating Rock County Regional Transportation Administration (FHWA), DOT. agencies and special interest groups Study included the proposed arterial ACTION: Notice of Intent. upon request. A public hearing will be bypass in their recommendations for held after the EIS is available for review. enhancing the regional economic SUMMARY: The FHWA is issuing this Public notice will given as to the time development for the corridor. notice to advise the public that an and place of the hearing. Improvements to the corridor are Environmental Impact Statement will be To ensure that the full range of issues considered necessary to provide for the prepared for a proposed highway project related to this proposal action are compatibility with the regional function in San Diego County, California. addressed and all significant issues of STH 11, and also to provide for the FOR FURTHER INFORMATION CONTACT: identified, comments and suggestions safety and traffic demand of this Dennis A. Scovill, Chief, District are invited from all interested parties. highway. Operations-C, Federal Highway Comments or questions concerning this Administration, 980 Ninth Street, Suite Planning, environmental and proposed action and the EIS should be 400, Sacramento, CA 95814–2724, engineering studies are underway to directed to FHWA at the address Telephone: 916/498–5034. develop transportation alternatives. The provided above. EIS will assess the environmental SUPPLEMENTARY INFORMATION: The Issued on March 24, 1995. impacts of alternatives including (1) no- FHWA, in cooperation with the Dennis Scovill, California Department of Transportation build; (2) improvements along existing Chief, District Operations-C, Sacramento, local roads and (3) an alignment on new (CALTRANS), will prepare an California. Environmental Impact Statement (EIS) location. [FR Doc. 95–7786 Filed 3–29–95; 8:45 am] on a proposal to extend State Route (SR) Information describing the proposed 905 easterly approximately six miles, BILLING CODE 4910±22±M action and soliciting comments will be connection Interstate 805 and the Otay sent to appropriate Federal, State and Mesa International Boarder Crossing, in local agencies and to private Diego County. Sensitive resources DEPARTMENT OF THE TREASURY organizations and citizens who have already identified within the project Fiscal Service previously expressed, or are known to area include archaeological sites, vernal have interest in this proposal. A series pools and other wetlands. [Dept. Circ. 570, 1994 Rev., Supp. No. 14] of public meetings will be held in the project corridor throughout the data The purpose of the project is to Surety Companies Acceptable on gathering and development of accommodate existing and future east- Federal Bonds; Redomestication and alternatives. In addition, a public west traffic generated by development Name Change; The Travelers hearing will be held. Public notice will on Otay Mesa and growing use of the Indemnity Company of Rhode Island be given of the time and place of the Otay Mesa International Port-Of-Entry. meetings and hearing. The Draft EIS will Initial freeway construction will be for The Travelers Indemnity Company of be available for public and agency a four-or-six-lane roadway (depending Rhode Island, a Rhode Island review and comment prior to the on the results of traffic modeling studies corporation has redomesticated from the hearing. As part of the scoping process, currently in progress) which would state of Rhode Island to the state of coordination activities have begun. improve safety and traffic flow in the Connecticut and has formally changed Scoping meetings will continue to be Otay Mesa area. The EIS will address an its name to The Travelers Indemnity held on an individual or group meeting ultimate ten-lane freeway (including Company of Connecticut, both changes basis. Agency coordination will be two high occupancy vehicle lanes). The effective December 31, 1994. The accomplished during these meetings. project also includes evaluation of siting Company was last listed as an locations for six proposed interchanges: acceptable surety on Federal bonds at 59 To ensure that the full range of issues including Caliente Boulevard, Heritage FR 34180, July 1, 1994. related to this proposed action are Road, Dritannia Boulevard, La Media A Certificate of Authority as an addressed and all significant issues are Road, and Siempre Viva Road, as well acceptable surety on Federal bonds, identified, comments and suggestions as a major junction with (proposed) SR dated today, is hereby issued under are invited from all interested parties. 125. Sections 9304 to 9308 of Title 31 of the Comments or questions concerning this Several Alternatives are being United States Code, to The Travelers proposed action and the EIS should be considered for this project. These Indemnity Company of Connecticut, directed to FHWA at the address include a ‘‘no build’’ alternative, Hartford, CT. This new Certificate provided above. expansion of Otay Mesa Road, several replaces the Certificate of Authority (Catalog of Federal Domestic Assistance different alignments of a new SR 905 issued to the Company under its former Program Number 20.205, Highway Planning route from I–805 to the Otay Mesa name. The underwriting limitation of and Construction. The regulations International Border Crossing, and $21,404,000 established for the implementing Executive Order 112372 system alternatives (e.g., public Company as of July 1, 1994, remains regarding intergovernmental consultation on transport via electric trolley or bus). unchanged until June 30, 1995. Federal programs and activities apply to this The appropriate federal, state and Certificates of Authority expire on program) local agencies, private organizations and June 30, each year, unless revoked prior Issued March 20, 1995. citizens who have previously expressed to that date. The Certificates are subject Richard C. Madrzak, or are known to have interest in this to subsequent annual renewal as long as Statewide Projects Engineer, Madison, proposal will placed on a mailing list to the Company remains qualified (31 CFR Wisconsin. receive project-related materials. part 223). [FR Doc. 95–7753 Filed 3–29–95; 8:45 am] A public information/scoping meeting A list of qualified companies is BILLING CODE 4910±22±M is planned for Monday, April 10, 1995 published annually as of July 1, in the Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16529 Department Circular 570, which and the chair of the National Advisory Educational and Cultural Exchange Act outlines details as to underwriting Board. In addition, there will be of 1961, Public Law 87–256, as limitations, areas in which licensed to briefings from the chairpersons of the amended, also known as the Fulbright- transact surety business and other six regional advisory boards on their Hays Act. The purpose of the Act is ‘‘to information. Federal bond-approving respective meetings held throughout the enable the Government of the United officers should annotate their reference country from March 2 through April 7. States to increase mutual understanding copies of the Treasury Circular 570, The Board will address the issues between the people of the United States 1994 Revision, at page 34180 to reflect involving the RTC’s disposition of and the people of other countries * * *; this change. environmental resources and other to strengthen the ties which unite us Questions concerning this notice may special properties. Specific topics with other nations by demonstrating the be directed to the Department of the addressed at the six regional meetings educational and cultural interests, Treasury, Financial Management include: the nature and extent of developments, and achievements of the Service, Funds Management Division, environmentally sensitive RTC people of the United States and other Surety Bond Branch, 3700 East-West properties; RTC activity in assisting nations * * * and thus to assist in the Highway, Room 6F04, Hyattsville, MD environmental interests to acquire development of friendly, sympathetic 20782, Telephone (202/FTS) 874–6696. significant properties; the future of the and peaceful relations between the Dated: March 20, 1995. RTC’s environmentally sensitive United States and the other countries of properties when taken over by the Charles F. Schwan III, the world.’’ The funding authority for Federal Deposit Insurance Corporation; the program cited above is provided Director, Funds Management Division, oversight of the hazard remediation Financial Management Service. through the Fulbright Hayes Act. program initiated by the RTC, and the Programs and projects must conform [FR Doc. 95–7844 Filed 3–29–95; 8:45 am] status of properties covered by the with Agency requirements and BILLING CODE 4810±35±M Coastal Barrier Improvement Act. guidelines outlined in the Solicitation Statements Package. USIA projects and programs are subject to the availability of funds. THRIFT DEPOSITOR PROTECTION Interested persons may submit, in Announcement Name and Number: OVERSIGHT BOARD writing, data, information or views on All communications with USIA the issues pending before the National National Advisory Board Meeting concerning this announcement should Advisory Board prior to or at the refer to the above title and reference AGENCY: Thrift Depositor Protection meeting. Seating is available on a first number E/ALP–95–02. Oversight Board. come first served basis for this open Deadline for Proposals: All copies meeting. ACTION: Notice of meeting. must be received at the U.S. Information Dated: March 27, 1995. Agency by 5 p.m. Washington, DC time SUMMARY: In accordance with section Jill Nevius, on Friday, April 21, 1995. Faxed 10(a)(2) of the Federal Advisory Committee Management Officer. documents will not be accepted, nor Committee Act, 5 U.S.C. App., [FR Doc. 95–7836 Filed 3–29–95; 8:45 am] will documents postmarked on April 21 announcement is hereby published for a BILLING CODE 2221±01±M but received at a later date. It is the meeting of the National Advisory Board. responsibility of each applicant to The meeting is open to the public. ensure that proposals are received by DATES: The National Advisory Board UNITED STATES INFORMATION the above deadline. Grants should begin meeting is scheduled for Thursday, AGENCY by July 5; the program should not run April 27, 1995, 9 a.m. to 12 noon. over 6 weeks: it should begin the ADDRESSES: The meeting will be held at Management of the Summer Institute weekend of July 15 and conclude the the Federal Deposit Insurance for EFL Teacher Trainers in Eastern/ week of August 20, 1995. Corporation, Board Room 6010, 550 Central Europe and the NIS FOR FURTHER INFORMATION CONTACT: The 17th St., Washington, D.C. Office of Academic Programs, English ACTION: Notice—request for proposals. FOR FURTHER INFORMATION CONTACT: Language Programs Division, E/ELP— Jill Nevius, Committee Management SUMMARY: The Office of Academic Room 304, U.S. Information Agency, Officer, Thrift Depositor Protection Programs, English Language programs 301 4th Street, SW., Washington, DC Oversight Board, 808 17th Street, N.W., Division, Programs Branch, of the 220547, telephone number 202–619– Washington, D.C. 20232, 202/416–2626. United States Information Agency’s 5869, fax number 202–401–1250 to SUPPLEMENTARY INFORMATION: Pursuant Bureau of Education and Cultural request a Solicitation Package, which to section 21A (d) of the Federal Home Affairs announces an open competition includes more detailed award criteria; Loan Bank Act, the Thrift Depositor for an assistance award. Public and all application forms; and guidelines for Protection Oversight Board established a private non-profit organizations meeting preparing proposals, including specific National Advisory Board and six the provisions described in IRS criteria for preparation of the proposal Regional Advisory Boards to advise the regulation 26 CFR 1.501(c)(3)–1 may budget. Please specify USIA Program Oversight Board and the Resolution apply to conduct a five- to six-week Officer/Specialist Marguerite Hess on all Trust Corporation (RTC) on the Summer Institute for up to 20 EFL industries and correspondences. disposition of real property assets of the teacher trainers from Albania, Bulgaria, Interested applicants should read the Corporation. Croatia, the Czech Republic, Estonia, complete Federal Register Hungary, Kazakhstan, Latvia, Lithuania, announcement before addressing Agenda Macedonia, Poland, Romania, Russia, inquiries to the Office of Academic A detailed agenda will be available at Slovakia, Slovenia, and Ukraine. The Programs, English Language Programs the meeting. The meeting will include exact number of participants will be Division, Programs Branch, or remarks from executives of the RTC, the contingent on available funding. submitting their proposals. Once the Executive Director of the Thrift Overall grant making authority for RFP deadline has passed, the Office of Depositor Protection Oversight Board this program is contained in the Mutual Academic Programs, English Language 16530 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices Program Division, Programs Branch, program. There must be a summary reasonable, feasible, and flexible. may not discuss this competition in any budget as well as a break-down Proposals should clearly demonstrate way with applicants until the Bureau reflecting both the administrative how the institution will meet the proposal review process has been budget and the program budget. For program’s objectives and plan. completed. better understanding or further 4. Multiplier Effect/Impact: Proposed ADDRESSES: Applicants must follow all clarification, applicants may provide programs should strengthen long-term instructions given in the Solicitation separate sub-budgets for each program mutual understanding, including Package. The original and 10 copies of component, phase, location, or activity maximum sharing of information and the complete application should be sent in order to facilitate USIA decisions on establishment of long-term institutional to: U.S. Information Agency, Ref.: E/ funding. and individual linkages. ALP–95–02, Office of Grants Allowable costs for the program 5. Support of Diversity: Proposals Management, E/XE, Room 336, 301 4th include the following: should demonstrate the recipient’s Street, S.W., Washington, D.C. 20547. Domestic Ground Travel commitment to promoting the SUPPLEMENTARY INFORMATION: Pursuant Book Allowance (not to exceed $400 per awareness and understanding of to the Bureau’s authorizing legislation, participant) diversity. programs must maintain a non-political Weekly Stipend for participants 6. Institutional Capacity: Proposed character and should be balanced and Meals and Lodging for participants and personnel and institutional resources representative of the diversity of Washington, D.C. escort should be adequate and appropriate to American political, social, and cultural Cultural Activities Fee achieve the program or project’s goals. 7. Institution’s Record/Ability: life. ‘‘Diversity’’ should be interpreted TESOL Membership Fee Proposals should demonstrate an in the broadest sense and encompass Course/Accreditation Fees institutional record of successful differences including but not limited to Tax Guidance/Preparation race, gender, religion, geographic Educational/Course Materials exchange programs, including Administrative Expenses and Honoraria location, socio-economic status, and responsible fiscal management and full physical challenges. Applicants are Please refer to the Solicitation compliance with all reporting strongly encouraged to adhere to the Package for complete budget guidelines requirements for past Agency grants as advancement of this principle. and formatting instructions. determined by USIA’s Office of Contracts. The Agency will consider the Overview Review Process past performance of prior recipients and The U.S. Information Agency (USIA) USIA will acknowledge receipt of all the demonstrated potential of new is soliciting proposals from U.S. proposals and will review them for applicants. professional or educational not-for- technical eligibility. Proposals will be 8. Follow-on Activities: Proposals profit institutions/organizations to hold deemed ineligible if they do not fully should provide a plan for continued a 5–6 week Summer Institute, whose adhere to the guidlines stated herein follow-on activity (without USIA purpose will be to prepare the and in the Solicitation Package. Eligible support) which insures that USIA participants to coordinate EFL teacher proposals will be forwarded to panels of supported programs are not isolated training activities in their respective USIA officers for advisory review. All events. countries upon their return. The eligible proposals will be reviewed by 9. Project Evaluation: Proposals Institute will therefore encompass the Agency contracts office, as well as should include a plan to evaluate the curriculum design and program the USIA Office of Eastern European activity’s success, both as the activities management as well as training in and NIS Affairs. Proposals may also be unfold and at the end of the program. methodology. Upon completion of the reviewed by the Office of the General USIA recommends that the proposal program, graduates of the institution Counsel or by other Agency elements. include a draft survey questionnaire or will work together with USIA EFL Funding decisions are at the discretion other technique plus description of a Fellows who are already working in of the USIA Associate Director for methodology to use to link outcomes to each country as part of the Eastern/ Educational and Cultural Affairs. Final original project objectives. Award- Central European and NIS EFL Fellow technical authority for assistance receiving organizations/institutions will Program. awards (grants or cooperative be expected to submit intermediate agreements) resides with the USIA reports after each project component is Guidelines grants officer. concluded or quarterly, whichever is Programs must comply with J–1 visa frequent. Review Criteria regulations. Please refer to program 10. Cost-effectiveness; The overhead specific guidelines (POGI) in the Technically eligible applications will and administrative components of the Solicitation Package for further details. be competitively reviewed according to proposal, including salaries and the criteria stated below. These criteria honoraria, should be kept as low as Proposed Budget are not rank ordered and all carry equal possible. All other items should be The proposal must contain a weight in the proposal evaluation: necessary and appropriate. comprehensive line item budget, based 1. Quality of the program idea: 11. Cost-sharing: Proposals should on the specific guidance in the Proposals should exhibit originality, maximize cost-sharing through other Solicitation Package. At this time, the substance, precision, and relevance to private sector support as well as Agency has not determined the full Agency mission. institutional direct funding funding level for FY’95. 2. Program planning: Detailed agenda contributions. Grants awarded to eligible and relevant work plan should 12. Value to U.S.-Partner Country organizations with less than four years demonstrate substantive undertakings Relations: Proposed projects should of experience in conducting and logistical capacity. Agenda and plan receive positive assessments by USIA’s international exchange programs will be should adhere to the program overview geographic area desk and overseas limited to $60,000. and guidelines described above. officers of program need, potential Applicants must submit a 3. Ability to achieve program impact, and significance in the partner comprehensive budget for the entire objectives: Objectives should be country(ies). Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16531 Notice may require the award to be reduced, June 30, 1995. Awards made will be The terms and conditions published revised, or increased. Final awards subject to periodic reporting and in this RFP are binding and may not be cannot be made until funds have been evaluation requirements. appropriated by Congress, allocated and modified by any USIA representative. Dated: March 22, 1995. committed through internal USIA Explanatory information provided by Dell Pendergrast, the Agency that contradicts published procedures. Deputy Associate Director, Educational and language will not be binding. Issuance Notification Cultural Affairs. of the RFP does not constitute an award commitment on the part of the All applicants will be notified of the [FR Doc. 95–7863 Filed 3–29–95; 8:45 am] Government. The needs of the program results of the review process on or about BILLING CODE 8230±01±M 16532 Sunshine Act Meetings Federal Register Vol. 60, No. 61 Thursday, March 30, 1995 This section of the FEDERAL REGISTER FEDERAL DEPOSIT INSURANCE PREVIOUSLY ANNOUNCED DATE AND TIME: contains notices of meetings published under CORPORATION Thursday, March 30, 1995 at 10:00 a.m. the ``Government in the Sunshine Act'' (Pub. Meeting open to the Public. L. 94-409) 5 U.S.C. 552b(e)(3). Notice of Agency Meeting Pursuant to the provisions of the THE FOLLOWING ITEMS WERE ADDED TO THE ‘‘Government in the Sunshine Act’’ (5 AGENDA: U.S. CONSUMER PRODUCT SAFETY U.S.C. 552b), notice is hereby given that COMMISSION Regulations: at 10:02 a.m. on Tuesday, March 28, Proposed Regulation Schedule (continued ``FEDERAL REGISTER'' CITATION OF 1995, the Board of Directors of the from meeting of March 23, 1995) PREVIOUS ANNOUNCEMENT: March 27, Federal Deposit Insurance Corporation Personal Use of Campaign Funds; 1995. met in closed session to consider (1) Announcement of Effective Date (11 CFR PREVIOUSLY ANNOUNCED TIME AND DATE OF matters relating to the Corporation’s Parts, 100, 104 and 113) supervisory and corporate activities, MEETING: 10:00 a.m., March 31, 1995. DATE AND TIME: Tuesday, April 4, 1995 and (2) matters relating to the probable CHANGES IN MEETING: at 2:00 p.m. Meeting failure of an insured depository concerning Protocol Revisions was institution. PLACE: 999 E Street, NW., Washington, canceled. In calling the meeting, the Board DC. For a recorded message containing the determined, on motion of Vice STATUS: This meeting will be closed to latest agenda information, call (301) Chairman Andrew C. Hove, Jr., the public. 504–0709. seconded by Director Jonathan L. CONTACT PERSON FOR ADDITIONAL Fiechter (Acting Director, Office of ITEMS TO BE DISCUSSED: INFORMATION: Sadye E. Dunn, Office of Thrift Supervision), concurred in by Mr. Compliance matters pursuant to 2 U.S.C. the Secretary, 4330 East West Highway, Stephen R. Steinbrink, acting in the § 437g. Bethesda, MD 20207 (301) 504–0800. place and stead of Director Eugene A. Audits conduced pursuant to 2 U.S.C. § 437g, Dated: March 28, 1995. Ludwig (Comptroller of the Currency), § 438(b), and Title 26, U.S.C. Matters concerning participation in civil Sadye E. Dunn, and Chairman Ricki Tigert Helfer, that Corporation business required its actions or proceedings or arbitration Secretary. consideration of the matters on less than Internal personnel rules and procedures or [FR Doc. 95–8020 Filed 3–28–95; 3:47 pm] seven days’ notice to the public; that no matters affecting a particular employee BILLING CODE 6355±01±M earlier notice of the meeting was DATE AND TIME: Thursday, April 6, 1995 practicable; that the public interest did at 10:00 a.m. U.S. CONSUMER PRODUCT SAFETY not require consideration of the matters PLACE: 999 E Street, NW., Washington, COMMISSION in a meeting open to public observation; and that the matters could be DC (Ninth Floor). ``FEDERAL REGISTER'' CITATION OF considered in a closed meeting by STATUS: This meeting will be open to the PREVIOUS ANNOUNCEMENT: March 27, authority of subsections (c)(4), (c)(6), public. 1995. (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10) PREVIOUSLY ANNOUNCED TIME AND DATE OF of the ‘‘Government in the Sunshine ITEMS TO BE DISCUSSED: MEETING: 10:00 a.m., March 30, 1995. Act’’ (5 U.S.C. 552b(c)(4), (c)(6), (c)(8), Correction and Approval of Minutes CHANGES IN MEETING: Meeting (c)(9)(A)(ii), (c)(9)(B), and (c)(10)). Advisory Opinion 1995–07: Kenneth D. concerning Bunk Beds was canceled. The meeting was held in the Board Albertsen on behalf of Key Bank of Room of the FDIC Building located at Alaska For a recorded message containing the Regulations: latest agenda information, call (301) 550—17th Street, N.W., Washington, D.C. Presidential Primary and General Election 504–0709. Regulations: Draft Final Rules and Dated: March 28, 1995. CONTACT PERSON FOR ADDITIONAL Explanation and Justification Federal Deposit Insurance Corporation. INFORMATION: Sadye E. Dunn, Office of Administrative Matters Patti C. Fox, the Secretary, 4330 East West Highway, PERSON TO CONTACT FOR INFORMATION: Acting Deputy Executive Secretary. Bethesda, MD 20207 (301) 504–0800. Mr. Ron Harris, Press Officer, [FR Doc. 95–8025 Filed 3–28–95; 3:48 pm] Dated: March 28, 1995. Telephone: (202) 219–4155. BILLING CODE 6714±01±M Sadye E. Dunn, Delores Hardy, Secretary. Administrative Assistant. [FR Doc. 95–8021 Filed 3–28–95; 3:47 pm] FEDERAL ELECTION COMMISSION [FR Doc. 95–8016 Filed 3–28–95; 3:46 pm] BILLING CODE 6355±01±M ``FEDERAL REGISTER'' NUMBER: 95–7387. BILLING CODE 6715±01±M federal register March 30,1995 Thursday of PensionCosts;FinalRule Measurement, Adjustment,andAllocation Accounting StandardsforComposition, Cost AccountingStandardsBoard; 48 CFRParts9903and9904 Office ofFederalProcurementPolicy Budget Management and Office of Part II 16533 16534 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations OFFICE OF MANAGEMENT AND administration of government contracts to future periods pension costs that BUDGET as a result of a proposed Standard. were not funded in the year of accrual 2. Promulgate an Advance Notice of because they lacked tax-deductibility. Office of Federal Procurement Policy Proposed Rulemaking. An overwhelming majority of 3. Promulgate a Notice of Proposed respondents to the Board’s November 48 CFR Parts 9903, 9904 Rulemaking. 1990 solicitation of agenda items gave a 4. Promulgate a final rule. high priority to the problems associated Cost Accounting Standards Board; This final rule is step four in the four with fully-funded qualified plans and Cost Accounting Standards for step process. those connected with the growing Composition, Measurement, B. Background universe of nonqualified pension plans. Adjustment, and Allocation of Pension The Board sought public comments Costs Prior Promulgations: The previous with a set of Staff Discussion Papers. A CASB published CAS 9904.412—‘‘Cost AGENCY: Cost Accounting Standards Paper addressing the ‘‘pay-as-you-go’’ or Accounting Standard for Composition unfunded plan issue was published by Board, Office of Federal Procurement and Measurement of Pension Cost’’ on Policy, OMB. the Board on June 17, 1991. See 56 FR September 24, 1975 and CAS 27780. A Paper seeking views on the ACTION: Final rule. 9904.413—‘‘Adjustment and Allocation ‘‘full funding’’ problem was published of Pension Cost’’ on July 20, 1977. The on August 19, 1991. See 56 FR 41151. SUMMARY: The Office of Federal effective dates of these Standards were On January 26, 1993, after consideration Procurement Policy, Cost Accounting January 1, 1976 and March 10, 1978, of the public comments received on Standards Board (CASB), is revising the respectively. These Standards were these Staff Discussion Papers, the CASB Cost Accounting Standards relating to developed in the early years of the published an Advance Notice of accounting for pension costs under applicability of the Employee Proposed Rulemaking (ANPRM) in the negotiated government contracts. Retirement Income Security Act Federal Register, 58 FR 6103. The Section 26(g)(1) of the Office of Federal (ERISA). At that time, the problems on ANPRM set forth proposed amendments Procurement Policy Act, 41 U.S.C. which this final rule focuses were not to deal with both the unfunded pension 422(g)(1), requires that the Board, when significant. Adequate or minimum, plan issue related to nonqualified promulgating any new or revised Cost rather than excess funding, concerned pension plans and the ‘‘full-funding’’ Accounting Standard, publish a final pension managers of that era. Over the problem of qualified plans. rule. This final rule addresses certain intervening years, government In the public comments to the problems that have emerged since the contractors’ pension plans have become ANPRM, the Board found two areas of original promulgation (in the 1970’s) of more adequately funded. At the same concern particularly persuasive. These the pension Standards: CAS 9904.412— time, limits on the maximum amount of dealt with the ANPRM lacking any full- ‘‘Cost Accounting Standard for benefits that can be provided by a funding limitation, and the complexities composition and measurement of qualified pension plan have been and problems introduced by drastic pension cost,’’ and CAS 9904.413, considerably constrained in real terms. revisions to the amortization period for ‘‘Adjustment and allocation of pension At the time the previous coverage was actuarial gains and losses. cost.’’ The changes address pension cost promulgated, there was little or no The ANPRM was premised on the recognition for qualified pension plans inconsistency between an orderly idea that, by reducing such amortization subject to the tax-deductibility limits of method of accruing pension costs and a periods, there would be only a relatively the Federal Tax Code, problems contractor’s ability to concurrently fund short time lag between cost/price associated with pension plans that are those accruals. recognition and the eventual funding. not qualified plans under the Federal The Tax Reform Act of 1986 amended This premise, as pointed out by the Tax Code, and problems associated with the Federal Tax Code to impose an commenters, was unsound. Because the overfunded pension plans. excise tax on contributions in excess of ANPRM lacked any full-funding EFFECTIVE DATE: March 30, 1995. the maximum tax-deductible amount for limitation, it could result in recognition qualified pension plans. Immediately FOR FURTHER INFORMATION CONTACT: of pension costs in years in which thereafter, the Omnibus Budget Richard C. Loeb, Executive Secretary, surplus assets existed. This is of Reconciliation Act of 1987 (OBRA 87) particular concern to the Board because Cost Accounting Standards Board added a second, often more restrictive (telephone: 202–395–3254). of the number of contractors that now full-funding limitation on the have overfunded plans. SUPPLEMENTARY INFORMATION: determination of the tax-deductible The Board also determined that amount. To avoid the incurrence of an A. Regulatory Process changing amortization periods, in order unallowable excise tax, government to improve cost predictability, was The Cost Accounting Standards contractors generally did not fund any unnecessary. Most commenters believed Board’s rules and regulations are accrued pension cost in excess of the that a satisfactory degree of codified at 48 CFR Chapter 99. Section maximum tax-deductible pension predictability could be achieved under 26(g)(1) of the Office of Federal contribution. However, portions of the existing Standards’ amortization Procurement Policy Act, 41 U.S.C. accrued pension costs that were not rules. 422(g)(1), requires that the Board, prior funded were not allowable. On November 5, 1993, after to the establishment of any new or Furthermore, because the Standards consideration of the public comments revised Cost Accounting Standard, prohibited the reassignment of accrued received on the ANPRM, the CASB complete a prescribed rulemaking but unfunded pension costs, contractors published a Notice of Proposed process. This process consists of the could not allocate such costs to Rulemaking (NPRM), 58 FR 58999. The following four steps: contracts when funded in future NPRM set forth proposed amendments 1. Consult with interested persons periods. On April 8, 1991, the Board to resolve the regulatory conflict for concerning the advantages, issued a ‘‘Memorandum for Agency qualified pension plans by disadvantages and improvements Senior Procurement Executives’’ which incorporating into the Standards the anticipated in the pricing and granted temporary authority to reassign ERISA full-funding limitation, while Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16535 maintaining the current amortization allocable to final cost objectives. This continue to be separately identified and rules. To address questions concerning four-step process of computing, eliminated from future cost overfunded pension plans, the Board assigning, funding, and allocating computations. added coverage to CAS 9904.413 pension cost applies to both qualified For nonqualified plans, a clarification defining what constitutes a segment and nonqualified defined-benefit in the final rule is made by the addition closing and providing greater specificity pension plans. of the concept of ‘‘permitted unfunded regarding accounting for pension costs This final rule affirms the accruals’’; the portion of the computed when segments are closed or pension complementary funding approach for and assigned cost of a nonqualified plan plans are terminated. The NPRM nonqualified plans that takes into exempted from current funding based retained the accounting approach for account Federal income tax on the tax rate offset. These amounts are nonqualified pension plans included in deductibility. The Board views the updated and described as the the ANPRM. complementary funding approach as a accumulated value of permitted The public comments received in reasonable compromise addressing the unfunded accruals. All such previously response to the NPRM raised some new Government’s concern that claimed cost assigned and allocated costs, adjusted issues. In the final rule, the Board be substantiated by funding while for earnings, expenses, and benefit addresses these issues focusing on three providing contractors with relief from payments, are treated as plan assets areas in particular. These deal with the adverse cash flow consequences of retained by the contractor for purposes restriction of accrual accounting by an funding a cost that is not tax-deductible. of assessing the funding status of the outside limit, incomplete and unclear The Board decided that tax-exempt plan. coverage for segment closings and entities do not experience such cash The fundamental requirement for pension plan terminations, and the lack flow disadvantages, and therefore, they assignment of pension cost has been of accounting for differences between are required to fund all pension cost expanded to include a ‘‘CAS balance accrued and funded pension costs. A that is assigned to the period. test’’ modeled after the Internal Revenue majority of public comments expressed For nonqualified defined-benefit Service ‘‘equation of balance’’. The CAS strong opinions, which were divided plans that do not meet the balance test requires that the entire between support for accrual accounting communication, nonforfeiture, or actuarial accrued liability be accounted and support for funding as the basis for funding criteria, or for which the for by the assets or the portions of determining allocable contract costs. In contractor chooses to use the pay-as- unfunded actuarial liability identified addition, numerous public comments you-go method, the assigned cost is under subparagraphs 9904.412–50(a) (1) were submitted concerning specific equal to the amount of benefits paid in and (2). For the CAS balance test to actuarial and technical issues. that period. To promote consistency function, the definition of unfunded The final rule reflects these and other between periods, this final rule requires actuarial liability is revised to clarify concerns expressed by commenters to that any lump sum settlements or that an actuarial surplus exists the NPRM. In addition, certain pension annuity purchases be amortized. whenever the actuarial value of assets actuaries and the Pension Committee of For qualified defined-benefit pension exceeds the actuarial accrued liability. the American Academy of Actuaries plans, the conflict between the The accumulated value of prepayment submitted suggestions to address the Standards and ERISA is removed. The credits, that is, funds that have yet to be actuarial soundness of the final rule. cost assigned to a period is limited to applied to assigned costs, is excluded the accrued cost that can be funded from the assets. Termination of Temporary Waiver without penalizing a contractor. A $0 Technical corrections have been made Authority floor was added to the corridor to to enhance the actuarial completeness of The final rule removes the regulatory eliminate any inequity between a the final rule. Consistent with recent conflict between the funding limits of requirement to credit negative costs to changes in ERISA and Generally ERISA and the period assignment contracts and the contractor’s inability Accepted Accounting Principles, as provisions of CAS 9904.412–40(c). to make withdrawal from the funding embodied in Statement 87 of the Therefore, the Board terminates the agency. Financial Accounting Standards Board, temporary waiver authority granted in By not requiring the assignment of and reflecting the sophistication of the ‘‘Memorandum for Agency Senior negative pension cost, the Board has modern actuarial valuations, this final Procurement Executives’’ issued on deferred the Government’s recovery of rule requires the use of explicit actuarial April 8, 1991. excess assets in overfunded plans. This assumptions that are individually delay is appropriate for on-going reasonable. Revisions have been made Summary of Proposed Amendments pension plans when no assets have to distinguish the actuarial value of The Board’s final rule provides for reverted or inured to the contractor. The assets used for computations of on-going accrual accounting to initially compute effect of this delay has been mitigated pension costs from the market value of the pension cost for a cost accounting by clarifying and strengthening the assets used for current period period. The Board also recognizes that Government’s rights or obligations for a adjustments. In addition, Generally funding of such cost serves to cost adjustment when there is a segment Accepted Actuarial Principles and substantiate the cost and adds to the closing, plan termination, or freezing of Practices as promulgated by the verifiability of the measurement of cost. benefits. Actuarial Standards Board were For assignment purposes, the computed Portions of pension costs computed considered in the drafting of this final cost is subject to a corridor with zero as for a period that fall outside of the rule. the floor and the maximum tax- assignable cost corridor ($0 floor and a Finally, this rule implements an deductible amount, where applicable, as ceiling based on tax-deductibility) are amendment to the CAS applicability the ceiling. The computed cost is also reassigned to future periods, together and exemption requirements contained subject to an assignable cost limitation with an interest adjustment, as portions in Section 9903.201–1(b)(11). This so that cost will not be assigned to an of unfunded actuarial liability and are amendment is made necessary due to overfunded pension plan. The cost identified as assignable cost deficits or recent statutory changes contained in assigned to the period must be funded assignable cost credits, respectively. the Federal Acquisition Streamlining as specified in the Standard to be Unfunded portions of assigned cost Act, Public Law 103–355. 16536 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations Transition from the application of the Cost accruable plans that so elect, were The Board is aware that contracting Accounting Standards. Therefore, this limited to the pay-as-you-go method. The NPRM kept the same accounting officers and contractors have negotiated rule does not require a regulatory approach for nonqualified plans as the many pragmatic agreements while flexibility analysis under the Regulatory ANPRM. Comments from the awaiting the promulgation of this final Flexibility Act of 1980. Government and contractors persuaded rule. The transition methods and E. Public Comments the Board that the conflict between full illustrations of 9904.412–64 and Public Comments: This final rule is accrual accounting and ERISA funding, 9904.413–64 are presented as model based upon the Board’s Notice of not predictability, was the significant solutions. The Board expects that Proposed Rulemaking made available problem. Finding that there could be modifications of these methods and for public comment on November 5, indefinitely extended delays in the alternate approaches may be necessary 1993, 58 FR 58999. Thirty sets of public funding of the accruals of overfunded to ensure equity for both the comments were received from plans, the Board determined that it was Government and contractors. Cognizant contractors, Government agencies, necessary to link the period assignment Federal officials are encouraged to ratify professional associations, actuarial of costs to current period funding in existing agreements that comport with firms, law firms, public accounting order to assure the verifiability of the the concepts of this final rule. For prior firms, and individuals. The comments accrued amounts. To resolve the conflict agreements or interim solutions based received and the Board’s actions taken with ERISA’s funding limits, the ERISA on a ‘‘fresh-start’’ amortization of the in response thereto are summarized full-funding limitation was incorporated unfunded actuarial liability of qualified below: into the NPRM. Furthermore, aware of defined-benefit pension plans, the Comment: Twelve commenters the need to address overfunded plans, cognizant Federal official should verify expressed concern that the introduction the Board added clarity and specificity that no portion of unfunded actuarial of a funding limit on accrual accounting to the current period adjustment liability for prior unfunded costs that was a significant departure from the full required when a segment closes. The could have been funded, or, for other accrual accounting approach of the Board explicitly included an adjustment previously disallowed costs, have in fact ANPRM. Some commenters were also for plan terminations because there has been inadvertently included in pension concerned with the complexity inherent been some uncertainty as to the prior costs. in any rule governing pension costs. For Board’s intent. The transition rules are constructed these reasons the commenters supported With this final rule, the Board affirms on a few basic concepts. Prior assigned the promulgation of a second NPRM. the accounting approaches of the costs of qualified plans, which were Response: The Staff Discussion NPRM. Throughout the four-step neither funded nor allocated to Papers, the ANPRM, and the NPRM promulgation process, accrual contracts because they lacked tax- each addressed the role of accrual accounting consistently has been the deductibility, may be assigned, with accounting and the role of funding. The starting point for the recognition of interest, to periods beginning on or after Staff Discussion Paper on fully-funded pension costs. The period assignment the effective date of this rule. defined-benefit pension plans requested rule is tied to ERISA’s tax-deductible Conversely, unfunded accrued costs of comments on the relative weights the maximum to prevent conflict with any nonqualified plans allocated to Board should assign to accrual of ERISA’s funding limits. This final contracts should be treated as assets, accounting, funding, and predictability rule retains the complementary funding updated for earnings and benefit as a basis for cost determination. The rule for nonqualified plans. The Board payments, and applied against either the Staff Discussion Paper on unfunded adopted many technical corrections actuarial accrued liability used to nonqualified defined-benefit pension suggested in public comments from compute cost accruals or the benefits plans balanced its avoidance of a actuaries and other professionals. To paid under the pay-as-you-go method. funding requirement with a very ensure that the technical corrections did constrained method of accrual not alter the conceptual approach of the C. Paperwork Reduction Act accounting for so-called ‘‘accruable’’ NPRM, the Board sought and received The Paperwork Reduction Act, Public plans. input from certain pension actuaries Law 96–511, does not apply to this final In response to the comments on the and the American Academy of rule, because this rule imposes no Staff Discussion Papers, the ANPRM Actuaries. paperwork burden on offerors, affected adopted accrual accounting for both Besides continuing support for either contractors and subcontractors, or qualified plans and accruable unrestricted accrual accounting or cost members of the public which requires nonqualified plans, which permitted recognition based solely on funding, the the approval of OMB under 44 U.S.C. certain portions of computed pension public comments on the NPRM 3501, et seq. costs to be unfunded. Because the Board generally addressed details of the supported the need to substantiate the coverage requiring clarification or D. Executive Order 12866 and the accrual with funding, the ANPRM correction. This final rule does not Regulatory Flexibility Act required that the accrued costs for deviate from the conceptual construct of The economic impact of this final rule qualified plans be funded as soon as the NPRM. As intended by the four-step on contractors and subcontractors is practicable. The ANPRM presumed promulgation process, this rule has expected to be minor. As a result, the there would not be a lengthy delay evolved and the Board has found an Board has determined that this final rule between accrual and funding, and so it informed balance between the does not result in the promulgation of did not link the period assignment of advantages of accrual accounting and a ‘‘major rule’’ under the provisions of the accrual to current period funding. funding. Further public exposure would Executive Order 12866, and that a For nonqualified plans, the assignment not alter the conceptual approach regulatory impact analysis will not be of accrued costs was tied to funding, but exposed in the NPRM and expressed in required. Furthermore, this final rule the ANPRM introduced an exception for this final rule. does not have a significant effect on a the effect of taxes on contractor Comment: Thirteen commenters substantial number of small entities cashflows. As with the Staff Discussion expressed their opposition to the because small businesses are exempt Paper, non-accruable plans, and adoption of the ERISA full-funding Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16537 limitation. These commenters supported The Board concurs that there should limitation, is generally based on the full accrual accounting as the only be a $0 floor imposed on the assignable normal cost and 10 year amortization of method that provides true matching of pension cost for the period. The the unfunded actuarial liability and is the incurrence of pension costs with the Standard requires the funding agency to also relatively predictable. periods during which benefits were be established for the ‘‘exclusive A predictability problem does arise earned. They contend that tax law is not benefit’’ of the participants so that when a plan is near the threshold of good accrual accounting and that the withdrawals by the contractor are ERISA’s full-funding limitations. The Board should make accounting rules prohibited, absent a plan termination. impact of these limits is sensitive to independently of the concerns of To be internally consistent, this final small changes in the market value of taxability. rule eliminates the assignment of assets, the actuarial accrued liability, Response: The Board continues to negative costs to a period and the and prevailing Treasury rates. The recognize that one of the primary allocation of such credit to contracts, Board believes that the ‘‘all or nothing’’ benefits of accrual accounting, and one except when either assets revert or inure nature and the magnitude of the impact of the stated goals of the Board, is the to the contractor or the segment is no are beyond the normal assumption of proper matching of benefiting contracts longer continuing. risk inherent in firm fixed-priced with the incurrence of expense. The However, when a contractor makes a contracting. However, the Board Board also continues to support accrual voluntary investment decision to not believes that this is a forward-pricing accounting as the most effective means fund the assigned cost of its qualified problem that may be addressed by the to promote consistency between cost pension plan, which is otherwise contracting officer through the accounting periods. allocable to and payable as cost or price negotiation of an advance agreement This final rule is based on the use of under Government contracts, the reflecting the contractor’s unique facts, accrual accounting to initially compute contractor has knowingly accepted the circumstances, and expected level and the pension cost for a period. The consequences of its decision. In this mix of Government contracting. Such assignable cost is then determined by case, because there is no conflict advance agreements could provide a comparing the computed pension cost between ERISA and the Standards, there method for achieving equity in the accrual to a minimum of $0 and to the is no reason to alter the cost forecasting of pension costs for maximum tax-deductible amount. The computation and assignment for the contractors whose pension plans are Board has determined that funding is period. Permitting arbitrary close to entering or emerging from the reassignment of the cost to other periods funding limits of ERISA. needed to substantiate the cost would be contrary to the Board’s stated While the special problems of allocation because of the magnitude of goal of enhancing the consistency of forward-pricing will continue to require the liability and the extended delay costs between periods and could create attention by the contracting officer, this between the accrual of the cost and the a potential for gaming. final rule does not add more settlement of the liability. This final rule Comment: A major concern of thirteen complication. The concepts of has not adopted ERISA as an accounting commenters was that the full-funding assignable cost limitation, assignable method, but has modified accrual limitation is difficult to predict. Some cost deficit, and assignable cost credit accounting to fit within the confines of commenters opined that the emphasis contained in this final rule are simply practicable funding. on funding made the rule unnecessarily the accounting and actuarial Comment: Eleven other commenters complex. mechanisms necessary to assign supported the imposition of the full- Response: In this final rule, full- computed costs that fall outside of the funding limit. Two commenters funding, which is measured by the funding corridor to future periods. recommended that the cost accrual be assignable cost limitation based on the Comment: Twelve commenters noted subject to a $0 minimum because actuarial value of assets and the that, despite the full-funding limitation, contractors are prohibited from actuarial accrued liability, is reasonably the cost assigned under the NPRM could withdrawing funds from a qualified predictable. Through the smoothing still be greater than the tax-deductible trust. techniques of an asset valuation maximum. Seven commenters remarked Response: In this final rule, the Board method, large swings in assets values that ERISA requires amortizations to refines the NPRM concept of a full- are dampened. In a relatively stable continue, and a new base be established, funding limitation. The full-funding population, the actuarial accrued when the contribution is affected by the limitation of the final rule is liability can be fairly well predicted OBRA 87 full-funding limitation only. implemented through the definition and using actuarial projection techniques for Seven commenters recommended that operation of the ‘‘assignable cost forward pricing purposes. Other events subparagraph 9904.412–50(b)(1) be limitation’’ which defines the point that dramatically affect the liability are clarified. when the plan is overfunded for cost addressed in the provisions on cost Response: This has been corrected in recognition purposes. When a pension method changes, segmentation, segment the final rule by using the maximum plan is overfunded, the Government closings, plan terminations, and frozen tax-deductible amount, however would be violating its fiduciary duty to plans. Finally, contractors have some determined, as the limit on assignable the taxpayers by advancing any further flexibility in determining the timing of cost for qualified plans. The accrued reimbursements to the contractor. The certain other events, such as assumption pension cost not assigned to the current assignable cost limitation is similar to changes or plan amendments, that affect period is reassigned to future periods as ERISA’s pre-OBRA 87 full funding the size of the actuarial accrued an assignable cost deficit. This final rule limitation, but uniquely defined to liability. also specifies that any negative accrued avoid confusion with ERISA When pension plan assets and cost be reassigned to future periods as terminology. As with the NPRM, liabilities are sufficiently different in an assignable cost credit. whenever a plan is determined to be amount, the impact of the tax- This final rule specifies that all overfunded, that is, the actuarial value deductible limits of ERISA can be existing amortization bases are deemed of assets exceeds the liability, all forecast with a fair degree of certainty. fully amortized when the accrued cost existing amortization bases are deemed The tax-deductible limit, computed is affected by the assignable cost fully amortized and eliminated. without regard to the full-funding limitation. This rule provides that any 16538 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations unfunded actuarial liability, including assets of the funding agency. Amounts increase pension costs. Five an actuarial surplus, existing in the next exempted from funding based on the commenters believe that the NPRM (and accounting period is deemed to be an tax-rate are retained in the general assets prior ANPRM) complementary funding actuarial gain or loss unless it is of the contractor and accounted for rule for nonqualified plans creates an attributable to a change in assumptions, within the accumulated value of administrative burden. plan amendment, or separately permitted unfunded accruals. Portions Response: The Board recognizes that identified portions of unfunded of assigned cost not substantiated by there will be some additional expenses actuarial liability attributable to complementary funding must be associated with the use of unfunded and/or disallowed pension separately identified and accounted for complementary funding and the use of costs. pursuant to 9904.412–50(a)(2). This nonqualified trust funds. The specificity Comment: Fifteen commenters stated final rule ensures that all portions of of the final rule gives contractors clear that funding would not be needed to assigned cost and allocated cost are rules under which they can choose to validate the liability of nonqualified tracked and accounted for, and thereby compute, assign, and allocate the costs defined-benefit plans if the Board removes much of the risk. of a nonqualified plan. The benefits of retained the existing requirement that Comment: Eight commenters were an accurate accounting of all assigned the benefits be ‘‘compelled’’. concerned that a ‘‘Rabbi’’ trust would costs will offset any increased Response: The Board believes it is not satisfy the ‘‘exclusive benefit’’ administrative expense to the reasonable for the Government to requirement in the definition of a Government and contractors. require that pension cost of both funding agency since creditors might There will be an increase in the cost qualified and nonqualified pension have superior rights to those of the plan of such plans for the taxes on the plans allocated to contracts, which the participants. Other commenters asked if earnings of the nonqualified trust fund Government pays for through cost or other nonqualified trust arrangements that are directly paid by or reimbursed price, be subject to funding. This final could qualify as a funding agency under from the fund. These taxes are a valid rule ensures that any unfunded portion the Standard. expense of the pension plan incurred in of assigned cost is isolated from the Response: The Board’s intention response to the final rule’s requirement computation of future cost accruals. To when revising the definition of a that a portion of the assigned cost be prevent windfall gains or losses and to funding agency was to prohibit the use funded. The Board notes that, in fact, minimize the need for advance of bookkeeping reserves, escrow such increased costs are being returned agreements discussed above, costs accounts, or any other arrangement to the Government through the payment allocated to fixed-priced contracts must under which the rights of the plan of the tax. be funded to the extent possible. participants were not clearly superior to The rule specifies that income taxes The Board notes that the excess those of the plan sponsor. The basic test on the earnings of a nonqualified trust funding, which occurs when a of ‘‘exclusive benefit’’ is whether the are treated as administrative expenses contractor funds more than the assigned contractor has relinquished all rights to and not as decrements to the assumed pension cost for the period, is carried the funds and that, except for the investment earning rate. This technical forward to future periods with interest. extraordinary event of bankruptcy, the correction clarifies that the interest This final rule retains the premature participants have primary rights to the assumption used to compute actuarial funding provisions of the original funds. The solvency of a contractor is values is not reduced to reflect taxes on Standard through the definition and always a concern to the Government fund earnings. This rule is not intended operation of prepayment credits. that is not restricted merely to pension to prevent contractors from expressing Comment: Five commenters stated costs. the actuarial assumption for that current period funding of assigned The Board does not intend that a administrative expenses as a percentage costs for nonqualified pension plans is ‘‘Rabbi trust’’ be the only funding of the earnings. necessary to enhance the verifiability of arrangement that satisfies the funding Comment: Two commenters suggested all costs allocated to contracts and to agency definition. Other arrangements that the final rule address how ERISA’s reduce the risk that the promised such as so-called secular trusts can be funding limits are allocated to segments. benefits might never be paid. satisfactory. The Board expects that as Response: Only the maximum tax- Response: As already discussed, the tax law changes and as qualified plan deductible amount and the contribution Board is persuaded that funding of the benefit limits possibly become more or to the funding agency are determined assigned cost is necessary to less restrictive, other funding for the pension plan in its entirety. substantiate the liability. The Board is arrangements may become more Under segmented accounting, all other also persuaded that requiring a taxable effective and more widely adopted. aspects of period cost; i.e., normal cost, contractor to fund 100% of the pension The Board does not intend for the unfunded actuarial liability, assignable cost could impose a cash flow penalty ‘‘exclusive benefit’’ clause to prohibit cost limitation, are measured at the to the extent the amount funded may asset reversions where, after settling all segment level. This final rule requires not be tax-deductible. The Board has benefit obligations to plan participants, that the tax-deductible maximum, modified the funding requirement the residual assets of the trust revert or determined for the plan as a whole, accordingly. However, the Board does inure to a contractor. The funding must be apportioned to segments using not wish to provide a cash flow agency coverage in the pension a basis that considers the assignable advantage to tax-exempt contractors for Standards is intended to be consistent costs or the funding levels of the whom no such cash flow penalty exists. with the coverage for funded insurance segments. Illustrations of how plan- Accordingly, the complementary reserves found at 9904.416– wide values are apportioned to funding rule is restricted to taxable 50(a)(1)(v)(B), which permits a reversion segments have been added. entities only. of assets only after all benefit In addition, to ease the funding of This final rule addresses the risk that obligations have been satisfied through costs attributable to Government unfunded costs will not be verified by insurance. contracts, this final rule allows providing for an accounting of all Comment: Nine commenters were contractors with predominantly assigned costs. Funded costs are concerned that taxes and administrative commercial business to apportion captured and accounted for within the costs associated with Rabbi trusts will contributions for qualified defined- Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16539 benefit plans to their Government accrued benefit cost method. For a Comment: One commenter asked if a segments first, but only if the contractor curtailment of benefits or for plan contractor must determine whether a uses segmented accounting. Unfunded participants who are terminated from termination of plan gain or loss has assigned costs, whether attributable to employment in a segment closing, the occurred before an adjustment is Government contracts or commercial accrued benefit is the appropriate required. Another commenter asked if a business, will be separately identified measure of the ultimate benefit that will termination of plan gain or loss occurs under 9904.412–50(a)(2) and thereby be paid under the plan. If plan when a pension plan is ‘‘frozen.’’ isolated from future cost computations participants remain employed by the Response: The definition has been and future allocation. This provision contractor, whether in the same or changed to refer to an event; that is, the allows the contractor to determine when another segment, the Board believes the termination of a pension plan. Any to fund costs of its qualified defined- responsibility for future salary resultant gain or loss for Government benefit plan for segments that are increases, which are attributable to contracting purposes is determined by associated solely with commercial future productivity, merit, and inflation, the 9904.413–50(c)(12) adjustment. The business. belongs to the future customers that ‘‘freezing’’ of a pension plan is Although the assets of a pension plan benefit from the participants’ continued addressed by the addition of a definition are subject to the claims of all plan employment. The Board notes that the for a ‘‘Curtailment of Benefits.’’ participants, the Board believes the ABCM does recognize the cost of vesting Comment: Two commenters funding requirements and protections of earned by the participants’ future supported the amortization of any ERISA will prevent any untenable service. segment closing adjustment, rather than differences in funding levels of The Board also believes that when an immediate period adjustment. segments from arising. Because there is an immediate period liquidation Response: Under this final rule, the nonqualified plans lack the funding of the liability through the payment of 9904.413–50(c)(12) adjustment is requirement protection of ERISA, the lump sum settlements or the purchase determined as a current period funding of such plans must be of annuities, the cost of such settlements adjustment, whether or not assets apportioned across all segments. and annuities is an exact measure of the actually revert from the trust. The Board Comment: Four commenters liability, although the Government does believes a current period adjustment is suggested that the definition of a have a right to share in any future appropriate when there is a disruption segment closing should be clarified. dividends or refunds. This final rule has of the contracting relationship, a Concerns were raised that an internal been revised accordingly. discontinuance of the operational reorganization would require a current Consistent with the requirement that segment, or a discontinuance of the period adjustment for a segment closing actuarial assumptions be individual pension plan. When such events occur, even though neither the segment’s nor best-estimates of future long-term pension costs can no longer be the contractor’s relationship to the economic and demographic trends, this Government had changed. final rule requires that the assumptions computed and adjusted on an on-going Response: The definition has been used to determine the actuarial liability basis since there are either no future revised to delineate three conditions be consistent with the assumptions that accounting periods in which credits or requiring a current period adjustment. have been in use. This is consistent with charges can be allocated to contracts or The first condition occurs when there is the fact that the pension plan is no future periods in which benefits will a change in ownership of the segment, continuing even though the segment has be earned. not just a simple reorganization within closed or the earning of future benefits If a contractor will continue to have the contractor’s internal structure. The has been curtailed. The Board does not a contracting relationship with the second event is the one addressed in the intend this rule to prevent contractors Government, the final rule does permit NPRM; that is, when the contractual from using assumptions that have been the cognizant Federal official and the relationship ends because the segment revised based on a persuasive actuarial contractor to negotiate an amortization operationally ceases to exist. The third experience study or a change in a plan’s schedule. This provision will allow a case addresses the end of the investment policy. contractor to allocate an adjustment contractual relationship with the This final rule does include a sixty- credit to future years during which it Government, whether the segment month phase-in of voluntary benefit can recover the amount of credited continues in operation or not. improvements to forestall an increase in assets either through decreased pension Comment: Two commenters opposed the liability in contemplation of a costs or through prices charged to other using the accrued benefit cost method segment closing or plan termination. customers benefiting from the future (ABCM) to determine the actuarial Improvements mandated by law or work performed by plan participants. liability for a segment closing or plan granted though collective bargaining Comment: Eleven commenters termination adjustment. These negotiations are not considered requested that the Board clarify that the commenters believe the ABCM voluntary. A plan termination or 9904.413–50(c)(12) adjustment could understates the liability. Four curtailment of benefits is viewed as result in a charge to final cost objectives commenters supported limiting the negating the intent of any recent if the liabilities exceeded the assets. actuarial assumptions used to determine voluntary benefit improvements. Response: The final rule refers to the the segment closing and plan Under the revised definition of a ‘‘difference’’ between assets and termination adjustment. These segment closing, some employees may liabilities without prejudice towards commenters also supported a phase-in remain in a segment performing non- either adjustment credits or adjustment of benefit improvements adopted within Government work while other charges. An illustration of the 5 years of a segment closing or plan employees may be transferred to other adjustment when liabilities exceed termination. segments. For consistency, the assets has been added. Response: In this final rule, the provisions for transfers of either active Comment: Four commenters asked the actuarial accrued liability, used for or retired participants specify that the Board to clarify how the Government’s determining the adjustment for a assets transferred must equal the share of the adjustment was to be segment closing or curtailment of actuarial accrued liability determined determined. Five commenters opposed benefits, is determined using the under the accrued benefit cost method. the inclusion of fixed-price contracts in 16540 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations any formula used to determine the warrants determining the Government’s The measure of the actuarial accrued Government’s share. share based on the net adjustment liability at a plan’s inception date is the Response: The asset value used to amount. present value of the units of benefit determine the adjustment amount is the While the Board believes the credited to employees for service prior market value of the assets, including Government’s allocable share of any to that date. (This method is also known permitted unfunded accruals, plus adjustment should be net of any as the Unit Credit cost method without portions of unfunded liability identified reversion excise tax, the allowability of salary projection.) pursuant to 9904.412–50(a)(2), i.e., plan such excise taxes continues to be (2) Actuarial accrued liability means assets retained by the contractor due to determined by the applicable cost pension cost attributable, under the allocated but unfunded costs. The asset principles. Income taxes, which are paid actuarial cost method in use, to years value is reduced for the accumulated to the Internal Revenue Service as an prior to the current period considered value of any prepayment credits since offset against prior tax deductions, by a particular actuarial valuation. As of such assets have never been assigned to continue not to be allocable. such date, the actuarial accrued liability past periods nor allocated to Comment: Six commenters suggested represents the excess of the present Government contracts. Because this that a segment closing adjustment is not value of future benefits and asset value represents the current value necessary if the assets and liabilities of administrative expenses over the of assigned costs of prior periods, the the segment were transferred to the present value of future normal costs for sum of previously assigned pension successor contractor. all plan participants and beneficiaries. costs is the denominator of the fraction. Response: The Board agrees. The The excess of the actuarial accrued The portion of these assets attributable appropriate coverage and illustrations liability over the actuarial value of the to the Government’s participation in the have been added. assets of a pension plan is the Unfunded funding of the pension plan through Actuarial Liability. The excess of the cost or price is measured by the sum of List of Subjects in 48 CFR Parts 9903 and 9904 actuarial value of the assets of a pension costs allocated to Government contracts. plan over the actuarial accrued liability The fraction is determined based on Cost accounting standards, is an actuarial surplus and is treated as data from years that are representative Government procurement. a negative unfunded actuarial liability. of the Government’s participation, Richard C. Loeb, (3) Actuarial assumption means an which is a factual determination best Executive Secretary, Cost Accounting estimate of future conditions affecting made by the contracting officer. Standards Board. pension cost; for example, mortality Costs allocated to fixed-price rate, employee turnover, compensation contracts subject to CAS 9904.412 and PART 9903ÐCONTRACT COVERAGE levels, earnings on pension plan assets, 9904.413 are included since the changes in values of pension plan Government has participated in the 1. The authority citations for Parts assets. funding of the plan through the 9903 and 9904 continue to read as payment of the estimated pension cost follows: (4) Actuarial cost method means a considered in the pricing of the Authority: Public Law 100–679, 102 Stat technique which uses actuarial contract. A risk/reward of a fixed-price 4056, 41 U.S.C. 422. assumptions to measure the present contract is the deviation of actual costs value of future pension benefits and 9903.201 [Amended] from the estimated cost considered in pension plan administrative expenses, the price. If a single period event, e.g., 2. Subsection 9903.201–1 is amended and which assigns the cost of such segment closing, plan termination, or by removing and reserving paragraph benefits and expenses to cost accounting benefit curtailment, alters the on-going (b)(11). periods. The actuarial cost method nature of the pension plan or segment, includes the asset valuation method PART 9904ÐCOST ACCOUNTING used to determine the actuarial value of the effect on fixed-price contracts STANDARDS should be similar to that of an the assets of a pension plan. accounting practice change. 3. Subsection 9904.412–30 is (5) Actuarial gain and loss means the Comment: Four commenters amended by revising paragraph (a) to effect on pension cost resulting from supported amending the NPRM read as follows: differences between actuarial coverage to explicitly state that the assumptions and actual experience. 9904.413–50(c)(12) adjustment is 9904.412±30 Definitions. (6) Actuarial valuation means the determined net of the excise tax on (a) The following are definitions of determination, as of a specified date, of pension plan asset reversions. terms which are prominent in this the normal cost, actuarial accrued Response: The Board agrees. Before Standard. Other terms defined liability, actuarial value of the assets of applying the fraction that determines elsewhere in this chapter 99 shall have a pension plan, and other relevant the Government’s share, subdivision the meanings ascribed to them in those values for the pension plan. 9904.413–50(c)(12)(vi) reduces the definitions unless paragraph (b) of this (7) Assignable cost credit means the adjustment amount for any excise taxes subsection requires otherwise. decrease in unfunded actuarial liability assessed on assets that revert to the (1) Accrued benefit cost method that results when the pension cost contractor as part of a pension plan means an actuarial cost method under computed for a cost accounting period termination. The excise tax is intended which units of benefits are assigned to is less than zero. to discourage plan sponsors from each cost accounting period and are (8) Assignable cost deficit means the terminating their qualified pension valued as they accrue; that is, based on increase in unfunded actuarial liability plans, and under this final rule, the services performed by each that results when the pension cost Government contractors are subject to employee in the period involved. The computed for a qualified defined-benefit the same termination penalty as their measure of normal cost under this pension plan exceeds the maximum tax- commercial counterparts. Since the method for each cost accounting period deductible amount for the cost excise tax is returned to the is the present value of the units of accounting period determined in Government, albeit the Internal Revenue benefit deemed to be credited to accordance with the Employee Service, the Board believes equity employees for service in that period. Retirement Income Security Act of 1974 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16541 (ERISA), 29 U.S.C. 1001 et seq., as forfeitable. A right to a pension benefit amounts used to fund pension costs or amended. is not forfeitable solely because it may liabilities, whether assignable or not. (9) Assignable cost limitation means be affected by the employee’s or (24) Projected benefit cost method the excess, if any, of the actuarial beneficiary’s death, disability, or failure means either (i) any of the several accrued liability plus the current normal to achieve vesting requirements. Nor is actuarial cost methods which distribute cost over the actuarial value of the a right considered forfeitable because it the estimated total cost of all of the assets of the pension plan. can be affected by the unilateral actions employees’ prospective benefits over a (10) Defined-benefit pension plan of the employee. period of years, usually their working means a pension plan in which the (18) Normal cost means the annual careers, or (ii) a modification of the benefits to be paid or the basis for cost attributable, under the actuarial accrued benefit cost method that determining such benefits are cost method in use, to current and considers projected compensation established in advance and the future years as of a particular valuation levels. contributions are intended to provide date, excluding any payment in respect (25) Qualified pension plan means a the stated benefits. of an unfunded actuarial liability. pension plan comprising a definite (11) Defined-contribution pension (19) Pay-as-you-go cost method means written program communicated to and plan means a pension plan in which the a method of recognizing pension cost for the exclusive benefit of employees contributions are established in advance only when benefits are paid to retired which meets the criteria deemed and the benefits are determined thereby. employees or their beneficiaries. essential by the Internal Revenue (12) Funded pension cost means the (20) Pension plan means a deferred Service as set forth in the Internal portion of pension cost for a current or compensation plan established and Revenue Code for preferential tax prior cost accounting period that has maintained by one or more employers to treatment regarding contributions, been paid to a funding agency. (13) Funding agency means an provide systematically for the payment investments, and distributions. Any organization or individual which of benefits to plan participants after other plan is a Nonqualified Pension provides facilities to receive and their retirement, provided that the Plan. accumulate assets to be used either for benefits are paid for life or are payable (b) * * * the payment of benefits under a pension for life at the option of the employees. 4. Subsection 9904.412–40 is revised plan, or for the purchase of such Additional benefits such as permanent to read as follows: and total disability and death payments, benefits, provided such accumulated 9904.412±40 Fundamental requirement. assets form a part of a pension plan and survivorship payments to (a) Components of pension cost. (1) established for the exclusive benefit of beneficiaries of deceased employees For defined-benefit pension plans, the plan participants and their may be an integral part of a pension except for plans accounted for under the beneficiaries. The fair market value of plan. pay-as-you-go cost method, the the assets held by the funding agency as (21) Pension plan participant means components of pension cost for a cost of a specified date is the Funding any employee or former employee of an accounting period are (i) the normal cost Agency Balance as of that date. employer, or any member or former (14) Immediate-gain actuarial cost member of an employee organization, of the period, (ii) a part of any unfunded method means any of the several cost who is or may become eligible to receive actuarial liability, (iii) an interest methods under which actuarial gains a benefit from a pension plan which equivalent on the unamortized portion and losses are included as part of the covers employees of such employer or of any unfunded actuarial liability, and unfunded actuarial liability of the members of such organization who have (iv) an adjustment for any actuarial pension plan, rather than as part of the satisfied the plan’s participation gains and losses. normal cost of the plan. requirements, or whose beneficiaries are (2) For defined-contribution pension (15) Market value of the assets means receiving or may be eligible to receive plans, the pension cost for a cost the sum of the funding agency balance any such benefit. A participant whose accounting period is the net plus the accumulated value of any employment status with the employer contribution required to be made for permitted unfunded accruals belonging has not been terminated is an active that period, after taking into account to a pension plan. The Actuarial Value participant of the employer’s pension dividends and other credits, where of the Assets means the value of cash, plan. applicable. investments, permitted unfunded (22) Permitted unfunded accrual (3) For defined-benefit pension plans accruals, and other property belonging means the amount of pension cost for accounted for under the pay-as-you-go to a pension plan, as used by the actuary nonqualified defined-benefit pension cost method, the components of pension for the purpose of an actuarial plans that is not required to be funded cost for a cost accounting period are: valuation. under 9904.412–50(d)(2). The (i) The net amount of periodic (16) Multiemployer pension plan Accumulated Value of Permitted benefits paid for that period, and means a plan to which more than one Unfunded Accruals means the value, as (ii) An amortization installment, employer contributes and which is of the measurement date, of the including an interest equivalent on the maintained pursuant to one or more permitted unfunded accruals adjusted unamortized settlement amount, collective bargaining agreements for imputed earnings and for benefits attributable to amounts paid to between an employee organization and paid by the contractor. irrevocably settle an obligation for more than one employer. (23) Prepayment credit means the periodic benefits due in current and (17) Nonforfeitable means a right to a amount funded in excess of the pension future cost accounting periods. pension benefit, either immediate or cost assigned to a cost accounting (b) Measurement of pension cost. (1) deferred, which arises from an period that is carried forward for future For defined-benefit pension plans other employee’s service, which is recognition. The Accumulated Value of than those accounted for under the pay- unconditional, and which is legally Prepayment Credits means the value, as as-you-go cost method, the amount of enforceable against the pension plan or of the measurement date, of the pension cost of a cost accounting period the contractor. Rights to benefits that do prepayment credits adjusted for interest shall be determined by use of an not satisfy this definition are considered at the valuation rate and decreased for immediate-gain actuarial cost method. 16542 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations (2) Each actuarial assumption used to period in which the Standard becomes unfunded actuarial liabilities, if any, measure pension cost shall be separately applicable and shall be no more than 30 that are developed under the actuarial identified and shall represent the years nor less than 10 years. However, cost method in use. Such policy may contractor’s best estimates of anticipated if the plan was in existence as of give consideration to factors such as the experience under the plan, taking into January 1, 1974, the amortization period size and nature of the unfunded account past experience and reasonable shall be no more than 40 years nor less actuarial liabilities. Except as provided expectations. The validity of each than 10 years. in 9904.412–50(c)(2) or 9904.413– assumption used shall be evaluated (iii) Each increase or decrease in 50(c)(12), once the amortization period solely with respect to that assumption. unfunded actuarial liability resulting for a portion of unfunded actuarial Actuarial assumptions used in from the institution of new pension liability is selected, the amortization calculating the amount of an unfunded plans, from the adoption of process shall continue to completion. actuarial liability shall be the same as improvements, or other changes to (4) Any amount funded in excess of those used for other components of pension plans subsequent to the date the pension cost assigned to a cost pension cost. this Standard first becomes applicable accounting period shall be accounted (c) Assignment of pension cost. to a contractor shall be amortized over for as a prepayment credit. The Except costs assigned to future periods no more than 30 years nor less than 10 accumulated value of such prepayment by 9904.412–50(c) (2) and (5), the years. credits shall be adjusted for interest at amount of pension cost computed for a (iv) If any assumptions are changed the valuation rate of interest until cost accounting period is assignable during an amortization period, the applied towards pension cost in a future only to that period. For defined-benefit resulting increase or decrease in accounting period. The accumulated pension plans other than those unfunded actuarial liability shall be value of prepayment credits shall be accounted for under the pay-as-you-go separately amortized over no more than reduced for portions of the accumulated cost method, the pension cost is 30 years nor less than 10 years. value of prepayment credits used to assignable only if the sum of (1) the (v) Actuarial gains and losses shall be fund pension costs or to fund portions unamortized portions of assignable identified separately from unfunded of unfunded actuarial liability unfunded actuarial liability developed actuarial liabilities that are being separately identified and maintained in and amortized pursuant to 9904.412– amortized pursuant to the provisions of accordance with 9904.412–50(a)(2). The 50(a) (1), and (2) the unassignable this Standard. The accounting treatment accumulated value of any prepayment portions of unfunded actuarial liability to be afforded to such gains and losses credits shall be excluded from the separately identified and maintained shall be in accordance with Cost actuarial value of the assets used to pursuant to 9904.412–50(a)(2) equals Accounting Standard 9904.413. compute pension costs for purposes of the total unfunded actuarial liability. (vi) Each increase or decrease in this Standard and Cost Accounting (d) Allocation of pension cost. unfunded actuarial liability resulting Standard 9904.413. Pension costs assigned to a cost from an assignable cost deficit or credit, (5) An excise tax assessed pursuant to accounting period are allocable to respectively, shall be amortized over a a law or regulation because of excess, intermediate and final cost objectives period of 10 years. inadequate, or delayed funding of a only if they meet the requirements for (vii) Each increase or decrease in pension plan is not a component of allocation in 9904.412–50(d). Pension unfunded actuarial liability resulting pension cost. Income taxes paid from costs not meeting these requirements from a change in actuarial cost method, the funding agency of a nonqualified may not be reassigned to any future cost including the asset valuation method, defined-benefit pension plan on accounting period. shall be amortized over a period of 10 earnings or other asset appreciation of 5. Subsection 9904.412–50 is revised to 30 years. This provision shall not such funding agency shall be treated as to read as follows: affect the requirements of 9903.302 to an administrative expense of the fund adjust previously priced contracts. and not as a reduction to the earnings 9904.412±50 Techniques for application. (2) Except as provided in 9904.412– assumption. (a) Components of pension cost. (1) 50(d)(2), any portion of unfunded (6) For purposes of this Standard, The following portions of unfunded actuarial liability attributable to either defined-benefit pension plans funded actuarial liability shall be included as a (i) pension costs applicable to prior exclusively by the purchase of separately identified part of the pension years that were specifically unallowable individual or group permanent cost of a cost accounting period and in accordance with then existing insurance or annuity contracts, and shall be included in equal annual Government contractual provisions or thereby exempted from ERISA’s installments. Each installment shall (ii) pension costs assigned to a cost minimum funding requirements, shall consist of an amortized portion of the accounting period that were not funded be treated as defined-contribution unfunded actuarial liability plus an in that period, shall be separately pension plans. However, all other interest equivalent on the unamortized identified and eliminated from any defined-benefit pension plans portion of such liability. The period of unfunded actuarial liability being administered wholly or in part through amortization shall be established as amortized pursuant to paragraph (a)(1) insurance company contracts shall be follows: of this subsection. Such portions of subject to the provisions of this (i) If amortization of an unfunded unfunded actuarial liability shall be Standard relative to defined-benefit actuarial liability has begun prior to the adjusted for interest at the valuation rate pension plans. date this Standard first becomes of interest. The contractor may elect to (7) If a pension plan is supplemented applicable to a contractor, no change in fund, and thereby reduce, such portions by a separately-funded plan which the amortization period is required by of unfunded actuarial liability and provides retirement benefits to all of the this Standard. future interest adjustments thereon. participants in the basic plan, the two (ii) If amortization of an unfunded Such funding shall not be recognized for plans shall be considered as a single actuarial liability has not begun prior to purposes of 9904.412–50(d). plan for purposes of this Standard. If the the date this Standard first becomes (3) A contractor shall establish and effect of the combined plans is to applicable to a contractor, the consistently follow a policy for selecting provide defined-benefits for the plan amortization period shall begin with the specific amortization periods for participants, the combined plans shall Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16543 be treated as a defined-benefit plan for revising such assumptions for use in the manner as qualified plans (with the purposes of this Standard. ensuing cost accounting period(s). exception of paragraph (c)(2)(iii) of this (8) A multiemployer pension plan (c) Assignment of pension cost. (1) subsection) under the following established pursuant to the terms of a Amounts funded in excess of the conditions: collective bargaining agreement shall be pension cost computed for a cost (i) The contractor, in disclosing or considered to be a defined-contribution accounting period pursuant to the establishing his cost accounting pension plan for purposes of this provisions of this Standard shall be practices, elects to have a plan so Standard. accounted for as a prepayment credit accounted for; (9) A pension plan applicable to a and carried forward to future accounting (ii) The plan is funded through the Federally-funded Research and periods. use of a funding agency; and, Development Center (FFRDC) that is (2) For qualified defined-benefit (iii) The right to a pension benefit is part of a State pension plan shall be pension plans, the pension cost nonforfeitable and is communicated to considered to be a defined-contribution computed for a cost accounting period the participants. pension plan for purposes of this is assigned to that period subject to the (4) The costs of nonqualified defined- Standard. following adjustments, in order of benefit pension plans that do not meet (b) Measurement of pension cost. (1) application: all of the requirements in 9904.412– For defined-benefit pension plans other (i) Any amount of computed pension 50(c)(3) shall be assigned to cost than those accounted for under the pay- cost that is less than zero shall be accounting periods using the pay-as- as-you-go cost method, the amount of assigned to future accounting periods as you-go cost method. (5) Any portion of pension cost pension cost assignable to cost an assignable cost credit. The amount of computed for a cost accounting period accounting periods shall be measured pension cost assigned to the period shall that exceeds the amount required to be by an immediate-gain actuarial cost be zero. (ii) When the pension cost equals or funded pursuant to a waiver granted method. exceeds the assignable cost limitation: under the provisions of ERISA shall not (2) Where the pension benefit is a (A) The amount of computed pension be assigned to the current period. function of salaries and wages, the cost, adjusted pursuant to paragraph Rather, such excess shall be treated as normal cost shall be computed using a (c)(2)(i) of this subsection, shall not an assignable cost deficit, except that it projected benefit cost method. The exceed the assignable cost limitation, shall be assigned to future cost normal cost for the projected benefit (B) All amounts described in accounting periods using the same shall be expressed either as a percentage 9904.412–50(a)(1) and 9904.413–50(a), amortization period as used for ERISA of payroll or as an annual accrual based which are required to be amortized, purposes. on the service attribution of the benefit shall be considered fully amortized, and (d) Allocation of pension costs. The formula. Where the pension benefit is (C) Except for portions of unfunded amount of pension cost assigned to a not a function of salaries and wages, the actuarial liability separately identified cost accounting period allocated to normal cost shall be based on employee and maintained in accordance with intermediate and final cost objectives service. 9904.413–50(a)(2), any portion of shall be limited according to the (3) For defined-benefit plans unfunded actuarial liability, which following criteria: accounted for under the pay-as-you-go occurs in the first cost accounting (1) Except for nonqualified defined- cost method, the amount of pension cost period after the pension cost has been benefit plans, the costs of a pension assignable to a cost accounting period limited by the assignable cost limitation, plan assigned to a cost accounting shall be measured as the sum of: shall be considered an actuarial gain or period are allocable to the extent that (i) The net amount for any periodic loss for purposes of this Standard. Such they are funded. benefits paid for that period, and actuarial gain or loss shall exclude any (2) For nonqualified defined-benefit (ii) The level annual installment increase or decrease in unfunded pension plans that meet the criteria set required to amortize over 15 years any actuarial liability resulting from a plan forth at 9904.412–50(c)(3), pension costs amounts paid to irrevocably settle an amendment, change in actuarial assigned to a cost accounting period are obligation for periodic benefits due in assumptions, or change in actuarial cost fully allocable if they are funded at a current or future cost accounting method effected after the pension cost level at least equal to the percentage of periods. has been limited by the assignable cost the complement (i.e., 100%-tax rate % (4) Actuarial assumptions shall reflect limitation. = percentage of assigned cost to be long-term trends so as to avoid (iii) Any amount of computed pension funded) of the highest published distortions caused by short-term cost of a qualified pension plan, Federal corporate income tax rate in fluctuations. adjusted pursuant to paragraphs (c)(2) effect on the first day of the cost (5) Pension cost shall be based on (i) and (ii) of this subsection that accounting period. If the contractor is provisions of existing pension plans. exceeds the sum of (A) the maximum not subject to Federal income tax, the This shall not preclude contractors from tax-deductible amount, determined in assigned costs are allocable to the extent making salary projections for plans accordance with ERISA, and (B) the such costs are funded. Funding at other whose benefits are based on salaries and accumulated value of prepayment levels and benefit payments of such wages, or from considering improved credits shall be assigned to future plans are subject to the following: benefits for plans which provide that accounting periods as an assignable cost (i) Funding at less than the foregoing such improved benefits must be made. deficit. The amount of pension cost levels shall result in proportional (6) If the evaluation of the validity of assigned to the current period shall not reductions of the amount of assigned actuarial assumptions shows that any exceed the sum of the maximum tax- cost that can be allocated within the assumptions were not reasonable, the deductible amount plus the cost accounting period. contractor shall: accumulated value of prepayment (ii) (A) Payments to retirees or (i) Identify the major causes for the credits. beneficiaries shall contain an amount resultant actuarial gains or losses, and (3) The cost of nonqualified defined- drawn from sources other than the (ii) Provide information as to the basis benefit pension plans shall be assigned funding agency of the pension plan that and rationale used for retaining or to cost accounting periods in the same is, at least, proportionately equal to the 16544 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations accumulated value of permitted ERISA. The other plan is funded each participant. Pursuant to 9904.412– unfunded accruals divided by an through a deposit administration 50(a)(7), the two plans shall be amount that is the market value of the contract, which is a form of group considered as a single plan for purposes assets of the pension plan excluding any deferred annuity contract that is not of this Standard. Because the effect of accumulated value of prepayment exempt from ERISA’s minimum funding the supplemental plan is to provide credits. requirements. Both plans provide for defined-benefits for the plan’s (B) The amount of assigned cost of a defined benefits. Pursuant to 9904.412– participants, the provisions of this cost accounting period that can be 50(a)(6), for purposes of this Standard Standard relative to defined-benefit allocated shall be reduced to the extent the plan financed through a group pension plans shall be applicable to the that such payments are drawn in a permanent insurance contract shall be combined plan. higher ratio from the funding agency. considered to be a defined-contribution (4) Contractor D provides (iii) The permitted unfunded accruals pension plan; the net premium required supplemental benefits to key shall be identified and accounted for to be paid for a cost accounting period management employees through a year to year, adjusted for benefit (after deducting dividends and any nonqualified defined-benefit pension payments directly paid by the contractor credits) shall be the pension cost for that plan funded by a so-called ‘‘Rabbi and for interest at the actual annual period. However, the deposit Trust.’’ The trust agreement provides earnings rate on the funding agency administration contract plan is subject that Federal income taxes levied on the balance. to the provisions of this Standard that earnings of the Rabbi trust may be paid (3) For nonqualified defined-benefit are applicable to defined-benefit plans. from the trust. The contractor’s actuarial pension plans accounted for under the (2) Contractor B provides pension cost method recognizes the pay-as-you-go method, pension costs benefits for certain hourly employees administrative expenses of the plan and assigned to a cost accounting period are through a multiemployer defined- trust, such as broker and attorney fees, allocable in that period. benefit plan. Under the collective by adding the prior year’s expenses to (4) Funding of pension cost shall be bargaining agreement, the contractor the current year’s normal cost. The considered to have taken place within pays six cents into the fund for each income taxes paid by the trust on trust the cost accounting period if it is hour worked by the covered employees. earnings shall be accorded the same accomplished by the corporate tax filing Pursuant to 9904.412–50(a)(8), the plan treatment as any other administrative date for such period including any shall be considered to be a defined- expense in accordance with 9904.412– permissible extensions thereto. contribution pension plan. The 50(a)(5). 6. Subsection 9904.412–60 is revised payments required to be made for a cost (5) (i) Contractor E has been using the to read as follows: accounting period shall constitute the entry age normal actuarial cost method assignable pension cost for that period. to compute pension costs. The 9904.412±60 Illustrations. (3) Contractor C provides pension contractor has three years remaining (a) Components of pension cost. (1) benefits for certain employees through a under a firm fixed price contract subject Contractor A has insured pension plans defined-contribution pension plan. to this Standard. The contract was for each of two small groups of However, the contractor has a separate priced using the unfunded actuarial employees. One plan is exclusively fund that is used to supplement pension liability, normal cost, and net funded through a group permanent life benefits for all of the participants in the amortization installments developed insurance contract and is exempt from basic plan in order to provide a using the entry age normal method. The the minimum funding requirements of minimum monthly retirement income to contract was priced as follows: ENTRY AGE NORMAL VALUES Cost component Year 1 Year 2 Year 3 Normal cost ...... $100,000 $105,000 $110,000 Amortization ...... 50,000 50,000 50,000 Pension cost ...... 150,000 155,000 160,000 (ii) The contractor, after notifying the when redetermined under the projected decrease in unfunded actuarial liability cognizant Federal official, switches to unit credit method. Pursuant to (UAL) over ten years. The following the projected unit credit actuarial cost 9904.412–50(a)(1)(vii), the contractor pension costs are determined under the method. The unfunded actuarial determines that an annual installment projected unit credit method: liability and normal cost decreased credit of $20,000 will amortize the PROJECTED UNIT CREDIT VALUES Cost component Year 1 Year 2 Year 3 Normal cost ...... $80,000 $85,000 $90,000 Amortization: Prior method ...... 50,000 50,000 50,000 UAL decrease ...... (20,000) (20,000) (20,000) Pension cost ...... 110,000 115,000 120,000 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16545 (iii) The change in cost method is a provide for fixed dollar payments to of all identified portions of unfunded change in accounting method that hourly employees. Under the first plan, actuarial liability equals the total decreased previously priced pension the contractor’s actuary believes that the unfunded actuarial liability, the plan is costs by $40,000 per year. In accordance contractor will be required to increase in actuarial balance and Contractor J can with 9903.302, Contractor E shall adjust the level of benefits by specified assign pension cost to the current cost the cost of the firm fixed-price contract percentages over the next several years. accounting period in accordance with for the remaining three years by In calculating pension costs, the 9904.412–40(c). $120,000 ($40,000×3 years). contractor may not assume future (2) Contractor K’s pension cost (6) Contractor F has a defined-benefit benefits greater than that currently computed for 1996, the current year, is pension plan for its employees. Prior to required by the plan. With regard to the $1.5 million. This computed cost is being subject to this Standard the second plan, a collective bargaining based on the components of pension contractor’s policy was to compute and agreement negotiated with the cost described in 9904.412–40(a) and fund as annual pension cost normal cost employees’ labor union provides that 9904.412–50(a) and is measured in plus only interest on the unfunded pension benefits will increase by accordance with 9904.412–40(b) and actuarial liability. Pursuant to specified percentages over the next 9904.412–50(b). The assignable cost 9904.412–40(a)(1), the components of several years. Because the improved limitation, which is defined at pension cost for a cost accounting benefits are required to be made, the 9904.412–30(a)(9), is $1.3 million. In period must now include not only the contractor can consider such increased accordance with the provisions of normal cost for the period and interest benefits in computing pension costs for 9904.412–50(c)(2)(ii)(A), Contractor K’s on the unfunded actuarial liability, but the current cost accounting period in assignable pension cost for 1996 is also an amortized portion of the accordance with 9904.412–50(b)(5). limited to $1.3 million. In addition, all unfunded actuarial liability. The (4) In addition to the facts of amounts that were previously being amortization of the liability and the 9904.412–60(b)(3), assume that amortized pursuant to 9904.412–50(a)(1) interest equivalent on the unamortized Contractor I was required to contribute and 9904.413–50(a) are considered fully portion of the liability must be at a higher level for ERISA purposes amortized in accordance with 9904.412– computed in equal annual installments. because the plan was underfunded. To 50(c)(2)(ii)(B). The following year, 1997, (b) Measurement of pension cost. (1) compute pension costs that are closer to Contractor K computes an unfunded Contractor G has a pension plan whose the funding requirements of ERISA, actuarial liability of $4 million. costs are assigned to cost accounting Contractor I decides to ‘‘fresh start’’ the Contractor K has not changed his periods by use of an actuarial cost unfunded actuarial liability being actuarial assumptions nor amended the method that does not separately identify amortized pursuant to 9904.412– provisions of his pension plan. actuarial gains and losses or the effect 50(a)(1); i.e., treat the entire amount as Contractor K has not had any pension on pension cost resulting from changed a newly established portion of unfunded costs disallowed or unfunded in prior actuarial assumptions. Contractor G’s actuarial liability, which is amortized periods. Contractor K must treat the method is not an immediate-gain cost over 10 years in accordance with entire $4 million of unfunded actuarial method and does not comply with the 9904.412–50(a)(1)(ii). Because the liability as an actuarial loss to be provisions of 9904.412–50(b)(1). contractor has changed the periods for amortized over fifteen years beginning (2) For several years Contractor H has amortizing the unfunded actuarial in 1997 in accordance with 9904.412– had an unfunded nonqualified pension liability established pursuant to 50(c)(2)(ii)(C). plan which provides for payments of 9904.412–50(a)(3), the contractor has (3) Assume the same facts shown in $200 a month to employees after made a change in accounting practice illustration 9904.412–60(c)(2), except retirement. The contractor is currently subject to the provisions of Cost that in 1995, the prior year, Contractor making such payments to several retired Accounting Standard 9903.302. K’s assignable pension cost was employees and recognizes those (c) Assignment of pension cost. (1) $800,000, but Contractor K only funded payments as its pension cost. The Contractor J maintains a qualified and allocated $600,000. Pursuant to contractor paid monthly annuity defined-benefit pension plan. The 9904.412–50(a)(2), the $200,000 of benefits totaling $24,000 during the actuarial value of the assets of $18 unfunded assignable pension cost was current year. During the prior year, million is subtracted from the actuarial separately identified and eliminated Contractor H made lump sum payments accrued liability of $20 million to from other portions of unfunded to irrevocably settle the benefit liability determine the total unfunded actuarial actuarial liability. This portion of of several participants with small liability of $2 million. Pursuant to unfunded actuarial liability was benefits. The annual installment to 9904.412–50(a)(1), Contractor J has adjusted for 8% interest, which is the amortize these lump sum payments over identified and is amortizing twelve interest assumption for 1995 and 1996, fifteen years at the valuation interest separate portions of unfunded actuarial and was brought forward to 1996 in rate assumption is $5,000. Since the liabilities. The sum of the unamortized accordance with 9904.412–50(a)(2). plan does not meet the criteria set forth balances for the twelve separately Therefore, $216,000 ($200,000×1.08) is in 9904.412–50(c)(3)(ii), pension cost maintained portions of unfunded excluded from the amount considered must be accounted for using the pay-as- actuarial liability equals $1.8 million. In fully amortized in 1996. The next year, you-go cost method. Pursuant to accordance with 9904.412–50(a)(2), the 1997, Contractor K must eliminate 9904.412–50(b)(3), the amount of contractor has separately identified, and $233,280 ($216,000×1.08) from the $4 assignable cost allocable to cost eliminated from the computation of million so that only $3,766,720 is objectives of that period is $29,000, pension cost, $200,000 attributable to a treated as an actuarial loss in which is the sum of the amount of pension cost assigned to a prior period accordance with 9904.412– benefits actually paid in that period that was not funded. The sum of the 50(c)(2)(ii)(C). ($24,000) plus the second annual twelve amortization bases maintained (4) Assume, as in 9904.412–60(c)(2), installment to amortize the prior year’s pursuant to 9904.412–50(a)(1) and the the 1996 pension cost computed for lump sum settlements ($5,000). amount separately identified under Contractor K’s qualified defined-benefit (3) Contractor I has two qualified 9904.412–50(a)(2) equals $2 million pension plan is $1.5 million and the defined-benefit pension plans that ($1,800,000+200,000). Because the sum assignable cost limitation is $1.7 16546 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations million. However, because of the ERISA that the pension cost computed for the 50(c)(3)(ii). Contractor N may account limitation on tax-deductible period is a negative $200,000. for the supplemental or excess plan in contributions, Contractor K cannot fund Contractor L first applies the provisions the same manner as its qualified plan, more than $1 million without incurring of 9904.412–50(c)(2)(i) and determines if it elects to do so pursuant to an excise tax, which 9904.412–50(a)(5) the assignable pension cost is $0. The 9904.412–50(c)(3)(i). does not permit to be a component of negative pension cost of $200,000 is (11) Assuming the same facts as in pension cost. In accordance with the assigned to the next ten cost accounting 9904.412–60(c)(10), except that under provisions of 9904.412–50(c)(2)(iii), periods as an assignable cost credit in the nonqualified portion of the pension Contractor K’s assignable pension cost accordance with 9904.412–50(a)(1)(vi). plan a former employee will forfeit his for the period is limited to $1 million. However, when Contractor L applies the pension benefit if the employee goes to The $500,000 ($1.5 million¥$1 million) provisions of 9904.412–50(c)(2)(ii), the work for a competitor within three years of pension cost not funded is reassigned assignable cost limitation is also $0. of terminating employment. Since the to the next ten cost accounting periods Because the assignable cost of $0 right to a benefit cannot be affected by beginning in 1997 as an assignable cost determined under 9904.412–50(c)(2)(i) the unilateral action of the contractor, deficit in accordance with 9904.412– is equal to the assignable cost limitation, the right to a benefit is considered to be 50(a)(1)(vi). the assignable cost credit of $200,000 is nonforfeitable for purposes of 9904.412– (5) Assume the same facts for considered fully amortized along with 30(a)(17). The nonqualified plan still Contractor K in 9904.412–60(c)(4), all other portions of unfunded actuarial meets the criteria set forth at 9904.412– except that the accumulated value of liability being amortized pursuant to 50(c)(3)(iii), and Contractor N may prepayment credits equals $700,000. 9904.412–50(a)(1). Conversely, if the account for the supplemental or excess Therefore, in addition to the $1 million, assignable cost limitation had been plan in the same manner as its qualified Contractor K can apply $500,000 of the greater than zero, the assignable cost plan, if it elects to do so. accumulated value of prepayment credit of $200,000 would have carried- (12) Assume the same facts as in credits towards the pension cost forward and amortized in future 9904.412–60(c)(11), except that computed for the period. In accordance periods. Contractor N, while maintaining a with the provisions of 9904.412– (8) Contractor M has a qualified ‘‘Rabbi Trust’’ funding vehicle elects to 50(c)(2)(iii), Contractor K’s assignable defined-benefit pension plan which is have the plan accounted for under the pension cost for the period is the full funded through a funding agency. It pay-as-you-go cost method so as to have $1.5 million ($1 million+$500,000) computes $1 million of pension cost for greater latitude in annual funding computed for the period. The $200,000 a cost accounting period. However, decisions. It may so elect pursuant to of remaining accumulated value of pursuant to a waiver granted under the 9904.412–50(c)(3)(i). prepayment credits provisions of ERISA, Contractor M is (13) The assignable pension cost for ($700,000¥$500,000) is adjusted for required to fund only $800,000. Under Contractor O’s qualified defined-benefit interest at the valuation rate and carried the provisions of 9904.412–50(c)(5), the plan is $600,000. For the same period forward until needed in future remaining $200,000 shall be accounted Contractor O contributes $700,000, accounting periods in accordance with for as an assignable cost deficit and which is the minimum funding 9904.412–50(a)(4). assigned to the next five cost accounting requirement under ERISA. In addition, (6) Assume the same facts for periods in accordance with the terms of there exists $75,000 of unfunded Contractor K in 9904.412–60(c)(4), the waiver. actuarial liability that has been except that the 1996 assignable cost (9) Contractor N has a company-wide separately identified pursuant to limitation is $1.3 million. Pension cost defined-benefit pension plan, wherein 9904.412–50(a)(2). Contractor O may of $1.5 million is computed for the cost benefits are calculated on one use $75,000 of the contribution in accounting period, but the assignable consistently applied formula. That part excess of the assignable pension cost to cost is limited to $1.3 million in of the formula defining benefits within fund this separately identified unfunded accordance with 9904.412– ERISA limits is administered and actuarial liability, if he so chooses. The 50(c)(2)(ii)(A). Pursuant to 9904.412– reported as a qualified plan and funded effect of the funding is to eliminate the 50(c)(2)(ii)(B), all existing amortization through a funding agency. The unassignable $75,000 portion of bases maintained in accordance with remainder of the benefits are considered unfunded actuarial liability that had subparagraph 9904.412–50(a)(1) are to be a supplemental or excess plan been separately identified and thereby considered fully amortized. The which, while it meets the criteria at eliminated from the computation of assignable cost of $1.3 million is then 9904.412–50(c)(3)(iii) as to pension costs. Contractor O shall then compared to the maximum tax- nonforfeitability and communication, is account for the remaining $25,000 of deductible amount of $1 million. not funded. The costs of the qualified excess contribution as a prepayment Pursuant to 9904.412–50(c)(2)(iii), portion of the plan shall be comprised credit in accordance with 9904.412– Contractor K’s assignable pension cost of those elements of costs delineated at 50(a)(4). for the period is limited to $1 million. 9904.412–40(a)(1), while the (d) Allocation of pension cost. (1) The $300,000 ($1.3 million¥$1 million) supplemental or excess portion of the Assume the same set of facts for excess of the assignable cost limitation plan shall be accounted for and assigned Contractor M in 9904.412–60(c)(8) over the tax-deductible maximum is to cost accounting periods under the except there was no ERISA waiver; i.e., assigned to future periods as an pay-as-you-go cost method provided at only $800,000 was funded against $1 assignable cost deficit. 9904.412–40(a)(3) and 9904.412– million of assigned pension cost for the (7) Contractor L is currently 50(c)(4). period. Under the provisions of amortizing a large decrease in unfunded (10) Assuming the same facts as in 9904.412–50(d)(1), only $800,000 may actuarial liability over a period of ten 9904.412–60(c)(9), except that be allocated to Contractor M’s years. A similarly large increase in Contractor N funds its supplemental or intermediate and final cost objectives. unfunded actuarial liability is being excess plan using a so-called ‘‘Rabbi The remaining $200,000 of assigned amortized over 30 years. The absolute Trust’’ vehicle. Because the cost, which has not been funded, shall value of the resultant net amortization nonqualified plan is funded, the plan be separately identified and maintained credit is greater than the normal cost so meets the criteria set forth at 9904.412– in accordance with 9904.412–50(a)(2) so Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16547 that it will not be reassigned to any 9904.412–50(c)(3). As of the valuation deposited into the funding agency at the future accounting periods. date, the reported funding agency beginning of 1996. For 1997 the funding (2) Contractor P has a nonqualified balance is $3.4 million excluding any agency balance is $1,375,000 defined-benefit pension plan which accumulated value of prepayment ($1,250,000 + $260,000 + $125,000— covers benefits in excess of the ERISA credits. When the adjusted funding $200,000—$60,000). The actual annual limits. Contractor P has elected to agency balance is added to the earnings rate of the funding agency was account for this plan in the same accumulated value of permitted 10% for 1996. Pursuant to 9904.412– manner as its qualified plan and, unfunded accruals of $1.6 million, the 50(d)(2)(iii), the accumulated value of therefore, has established a ‘‘Rabbi market value of assets equals $5.0 permitted unfunded accruals is updated Trust’’ as the funding agency. For the million ($3.4 million + $1.6 million) in from 1996 to 1997 by: (i) adding current cost accounting period, the accordance with 9904.412–30(a)(13). $140,000 (35% × $400,000), which is contractor computes and assigns During the plan year, retirees receive the unfunded portion of the assigned $100,000 as pension cost. The monthly benefits totalling $350,000. cost; (ii) subtracting the $100,000 of contractor funds $65,000, which is Pursuant to 9904.412–50(d)(2)(ii)(A), at benefits paid directly by the contractor; equivalent to a funding level equal to least 32% ($1.6 million divided by $5 and (iii) increasing the value of the the complement of the highest million) of these benefit payments shall assets by $64,000 for imputed earnings published Federal corporate income tax be made from sources other than the at 10% (10% × ($600,000 + $140,000— rate of 35%. Under the provisions of funding agency. Contractor Q, therefore, $100,000)). The accumulated value of 9904.412–50(d)(2), the entire $100,000 draws $238,000 from the funding permitted unfunded accruals for 1997 is is allocable to cost objectives of the agency assets and pays the remaining $704,000 ($600,000 + $140,000— period. $112,000 using general corporate funds. $100,000 + $64,000). (3) Assume the set of facts in (6) Assume the same facts as 7. Subsection 9904.412–63 is revised 9904.412–60(d)(2), except that 9904.412–60(d)(5), except that by the to read as follows: Contractor P’s contribution to the Trust time Contractor Q receives its actuarial is $59,800. In that event, the provisions valuation it has paid retirement benefits 9904.412±63 Effective date. of 9904.412–50(d)(2)(i) would limit the equalling $288,000 from funding agency (a) This Standard is effective as of amount of assigned cost allocable assets. The contractor has made deposits March 30, 1995. within the cost accounting period to the to the funding agency equal to the tax (b) This Standard shall be followed by percentage of cost funded (i.e., $59,800/ complement of the $500,000 assignable each contractor on or after the start of $65,000 = 92%). This results in pension cost for the period. Pursuant to its next cost accounting period allocable cost of $92,000 (92% of 9904.412–50(d)(2)(ii)(B), the assignable beginning after the receipt of a contract $100,000) for the cost accounting $500,000 shall be reduced by the or subcontract to which this Standard is period. Under the provisions of $50,000 ($288,000—$238,000) of applicable. 9904.412–40(c) and 9904.412– benefits paid from the funding agency in (c) Contractors with prior CAS- 50(d)(2)(i), respectively, the unallocable excess of the permitted $238,000, unless covered contracts with full coverage $8,000 may not be assigned to any the contractor makes a deposit to shall continue to follow the Standard in future cost accounting period. In replace the $50,000 inadvertently drawn 9904.412 in effect prior to March 30, addition, in accordance with 9904.412– from the funding agency. If this 1995, until this Standard, effective 50(a)(2), the $8,000 must be separately corrective action is not taken within the March 30, 1995, becomes applicable identified and no amount of interest on time permitted by 9904.412–50(d)(4), following receipt of a contract or such separately identified $8,000 shall Contractor Q shall allocate only subcontract to which this Standard be a component of pension cost in any $450,000 ($500,000–$50,000) to final applies. future cost accounting period. cost objectives. Furthermore, the 8. A new subsection 9904.412–64 is (4) Again, assume the set of facts in $50,000, which was thereby attributed added to read as follows: 9904.412–60(d)(2) except that, to benefit payments instead of funding, Contractor P’s contribution to the Trust must be separately identified and 9904.412±64 Transition method. is $105,000 based on a valuation interest maintained in accordance with To be acceptable, any method of assumption of 8%. Under the provisions 9904.412–50(a)(2). transition from compliance with of 9904.412–50(d)(2) the entire $100,000 (7) Contractor R has a nonqualified Standard 9904.412 in effect prior to is allocable to cost objectives of the defined-benefit plan that meets the March 30, 1995, to compliance with the period. In accordance with the criteria of 9904.412–50(c)(3). For 1996, Standard effective March 30, 1995, must provisions of 9904.412–50(c)(1) the funding agency balance was follow the equitable principle that costs, Contractor P has funded $5,000 $1,250,000 and the accumulated value which have been previously provided ($105,000—$100,000) in excess of the of permitted unfunded accruals was for, shall not be redundantly provided assigned pension cost for the period. $600,000. During 1996 the earnings and for under revised methods. Conversely, The $5,000 shall be accounted for as a appreciation on the assets of the funding costs that have not previously been prepayment credit. Pursuant to agency equalled $125,000, benefit provided for must be provided for under 9904.412–50(a)(4), the $5,000 shall be payments to participants totalled the revised method. This transition adjusted for interest at the 8% valuation $300,000, and administrative expenses subsection is not intended to qualify for rate of interest and excluded from the were $60,000. All transactions occurred purposes of assignment or allocation, actuarial value of assets used to on the first day of the period. In pension costs which have previously compute the next year’s pension cost accordance with 9904.412– been disallowed for reasons other than computations. The accumulated value 50(d)(2)(ii)(A), $200,000 of benefits were ERISA tax-deductibility limitations. The of prepayment credits of $5,400 (5,000 paid from the funding agency and sum of all portions of unfunded × 1.08) may be used to fund the next $100,000 were paid directly from actuarial liability identified pursuant to year’s assigned pension cost, if needed. corporate assets. Pension cost of Standard 9904.412, effective March 30, (5) Contractor Q maintains a $400,000 was assigned to 1996. Based 1995, including such portions of nonqualified defined-benefit pension on the current corporate tax rate of 35%, unfunded actuarial liability determined plan which satisfies the requirements of $260,000 ($400,000 × (1–35%)) was for transition purposes, is subject to the 16548 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations provisions of 9904.412–40(c) on subsection may be implemented using revised Standard was applicable to a requirements for assignment. The the so-called ‘‘fresh start’’ method contractor, Contractor S computed and method, or methods, employed to whereby a portion of the unfunded assigned pension cost of $1 million for achieve an equitable transition shall be actuarial liability of a defined-benefit a qualified defined-benefit pension consistent with the provisions of pension plan, which occurs in the first plan. The contractor made a Standard 9904.412, effective March 30, cost accounting period after March 30, contribution equal to the maximum tax- 1995, and shall be approved by the 1995, shall be treated in the same deductible amount of $800,000 for the contracting officer. Examples and manner as an actuarial gain or loss. period leaving $200,000 of assigned cost illustrations of such transition methods Such portion of unfunded actuarial unfunded for the period. Except for this include, but are not limited to, the liability shall exclude any portion of $200,000, no other assigned pension following: unfunded actuarial liability that must costs have ever been unfunded or (a) Reassignment of certain prior continue to be separately identified and otherwise disallowed. Using the unfunded accruals. maintained in accordance with transition method of paragraph (a)(1) of (1) Any portion of pension cost for a 9904.412–50(a)(2), including interest this subsection, the contractor shall qualified defined-benefit pension plan, adjustments. If the contracting officer establish an assignable cost deficit equal assigned to a cost accounting period already has approved a different to $214,000 ($200,000 × 1.07), which is prior to [insert date of publication in the amortization period for the fresh start the prior unfunded assigned cost plus Federal Register], which was not amortization, then such amortization interest. If this assignable cost deficit funded because such cost exceeded the period shall continue. amount, plus all other portions of maximum tax-deductible amount, (e) Change to pay-as-you-go method. unfunded actuarial liability identified in determined in accordance with ERISA, A change in accounting method subject accordance with 9904.412–50(a) (1) and shall be assigned to subsequent to 9903.302 will have occurred (2), equal the total unfunded actuarial accounting periods, including an whenever costs of a nonqualified liability, pension cost may be assigned adjustment for interest, as an assignable defined-benefit pension plan have been to the current period. cost deficit. However, such costs shall accounted for on an accrual basis prior (2) Assume that Contractor S in be assigned to periods on or after March to March 30, 1995, and the contractor 9904.412–64(g)(1) priced the entire $1 30, 1995, only to the extent that such must change to the pay-as-you-go cost million into firm fixed-price contracts. costs have not previously been allocated method because the plan does not meet In this case, no assignable cost deficit as cost or price to contracts subject to the requirement of 9904.412–50(c)(3), amount may be established. In addition, this Standard. either by election or otherwise. In such the $214,000 ($200,000 × 1.07) shall be (2) Alternatively, the transition case, any portion of unfunded pension separately identified and maintained in method described in paragraph (d) of cost, assigned to a cost accounting accordance with 9904.412–50(a)(2). If this subsection may be applied period prior to March 30, 1995 that was all portions of unfunded actuarial separately to costs subject to paragraph allocated as cost or price to contracts liability identified in accordance with (a)(1) of this subsection. subject to this Standard, shall be 9904.412–50(a) (1) and (2), equal the (b) Reassignment of certain prior assigned to future accounting periods, total unfunded actuarial liability, unallocated credits. including adjustments for imputed pension cost may be assigned to the (1) Any portion of pension cost for a interest and benefit payments, as an period. defined-benefit pension plan, assigned accumulated value of permitted (3) Assume the same facts as in to a cost accounting period prior to unfunded accruals. Costs computed 9904.412–64(g)(1), except Contractor S March 30, 1995, which was not under the pay-as-you-go cost method only funded and allocated $500,000. allocated as a cost or price credit to shall be charged against such The $300,000 of assigned cost that was contracts subject to this Standard accumulated value of permitted not funded, but could have been funded because such cost was less than zero, unfunded accruals before such costs without exceeding the tax-deductible shall be assigned to subsequent may be allocated to contracts. maximum, may not be recognized as an accounting periods, including an (f) Actuarial assumptions. The assignable cost deficit. Instead, the adjustment for interest, as an assignable actuarial assumptions used to calculate $300,000 must be separately identified cost credit. assignable cost deficits, assignable cost and maintained in accordance with (2) Alternatively, the transition credits, or accumulated values of 9904.412–50(a)(2). If the $321,000 method described in paragraph (d) of permitted unfunded accruals for ($300,000 × 1.07) plus the $214,000 this subsection may be applied transition purposes shall be consistent already identified as an assignable cost separately to costs subject to paragraph with the long term assumptions used for deficit plus all other portions of (b)(1) of this subsection. valuation purposes for such prior unfunded actuarial liability identified in (c) Accounting for certain prior periods unless the contracting officer accordance with 9904.412–50(a) (1) and allocated unfunded accruals. Any has previously approved the use of (2), equal the total unfunded actuarial portion of unfunded pension cost for a other reasonable assumptions. liability, pension cost may be assigned nonqualified defined-benefit pension (g) Transition illustrations. Unless to the period. plan, assigned to a cost accounting otherwise noted, paragraphs (g) (1) (4) Assume that, for Contractor S in period prior to March 30, 1995, that was through (9) of this subsection address 9904.412–64(g)(3), the only portion of allocated as cost or price to contracts pension costs and transition amounts unfunded actuarial liability that must be subject to this Standard, shall be determined for the first cost accounting identified under 9904.412–50(a)(2) is recognized in subsequent accounting period beginning on or after the date the $321,000. If Contractor S chooses to periods, including adjustments for this revised Standard becomes use the ‘‘fresh start’’ transition method, imputed interest and benefit payments, applicable to a contractor. For purposes the $321,000 of unfunded assigned cost as an accumulated value of permitted of these illustrations an interest must be subtracted from the total unfunded accruals. assumption of 7% is presumed to be in unfunded actuarial liability in (d) ‘‘Fresh start’’ alternative transition effect for all periods. accordance with 9904.412–63(d). The method. The transition methods of (1) For the cost accounting period net amount of unfunded actuarial paragraphs (a)(1), (b)(1), and (c) of this immediately preceding the date this liability shall then be amortized over a Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16549 period of fifteen years as an actuarial this subsection, Contractor U shall The measure of the actuarial accrued loss in accordance with 9904.412– recognize the $2 million as the liability at a plan’s inception date is the 50(a)(1)(v) and Cost Accounting accumulated value of permitted present value of the units of benefit Standard 9904.413. unfunded accruals, which will then be credited to employees for service prior (5) For the cost accounting period included in the market value and to that date. (This method is also known immediately preceding the date this actuarial value of the assets. Because the as the Unit Credit cost method without revised Standard becomes applicable to accumulated value of permitted salary projection.) a contractor, Contractor T computed and unfunded accruals is exactly equal to (2) Actuarial accrued liability means assigned pension cost of negative the current period market value of the pension cost attributable, under the $400,000 for a qualified defined-benefit assets, 100% of benefits for the current actuarial cost method in use, to years plan. Because the contractor could not period must be paid from sources other prior to the current period considered withdraw assets from the trust fund, the than the funding agency in accordance by a particular actuarial valuation. As of contracting officer agreed that instead of with 9904.412–50(d)(2)(ii). such date, the actuarial accrued liability allocating a current period credit to (9) Assume that Contractor U in represents the excess of the present contracts, the negative costs would be 9904.412–64(g)(8) establishes a funding value of future benefits and carried forward, with interest, and offset agency, but elects to use the pay-as-you- administrative expenses over the against future pension costs allocated to go method for current and future present value of future normal costs for the contract. Using the transition pension costs. Furthermore, plan all plan participants and beneficiaries. method of paragraph (b)(1) of this participants receive $500,000 in benefits The excess of the actuarial accrued subsection, the contractor shall establish on the last day of the current period. liability over the actuarial value of the an assignable cost credit equal to Using the transition method of assets of a pension plan is the Unfunded $428,000 ($400,000 × 1.07). If this paragraph (e) of this subsection to Actuarial Liability. The excess of the assignable cost credit amount, plus all ensure prior costs are not redundantly actuarial value of the assets of a pension other portions of unfunded actuarial provided for, the contractor shall plan over the actuarial accrued liability liability identified in accordance with establish assets; i.e., an accumulated is an actuarial surplus and is treated as 9904.412–50(a) (1) and (2), equals the value of permitted unfunded accruals, a negative unfunded actuarial liability. total unfunded actuarial liability, of $2 million. Since these assets are (3) Actuarial assumption means an pension cost may be assigned to the sufficient to provide for the current estimate of future conditions affecting period. benefit payments, no pension costs can pension cost; for example, mortality (6) Assume that in 9904.412–64(g)(5), be allocated in this period. Furthermore, rate, employee turnover, compensation following guidance issued by the previously priced contracts subject to levels, earnings on pension plan assets, contracting agency the contracting this Standard shall be adjusted in changes in values of pension plan officer had deemed the cost for the prior accordance with 9903.302. The assets. period to be $0. In order to satisfy the accumulated value of permitted (4) Actuarial cost method means a requirements of 9904.412–40(c) and unfunded accruals shall be carried technique which uses actuarial assign pension cost to the current forward to the next period by adding assumptions to measure the present period, Contractor S must account for $140,000 (7% x $2 million) of imputed value of future pension benefits and the prior period negative accruals that interest, and subtracting the $500,000 of pension plan administrative expenses, have not been specifically identified. benefit payments made by the and which assigns the cost of such Following the transition method of contractor. The accumulated value of benefits and expenses to cost accounting paragraph (b)(1) of this subsection, the permitted unfunded accruals for the periods. The actuarial cost method contractor shall identify $428,000 as an next period equals $1,640,000 ($2 includes the asset valuation method assignable cost credit. million + $140,000—$500,000). used to determine the actuarial value of (7) Assume the facts of 9904.412– the assets of a pension plan. 64(g)(5), except Contractor S uses the 9904.413 [Amended] (5) Actuarial gain and loss means the ‘‘fresh start’’ transition method. In 9. Subsection 9904.413–30 is effect on pension cost resulting from addition, for the current period the plan amended by revising paragraph (a) to differences between actuarial is overfunded since the actuarial value read as follows: assumptions and actual experience. of the assets is greater than the actuarial (6) Actuarial valuation means the accrued liability. In this case, an 9904.413±30 Definitions. determination, as of a specified date, of actuarial gain equal to the negative (a) The following are definitions of the normal cost, actuarial accrued unfunded actuarial liability; i.e., terms which are prominent in this liability, actuarial value of the assets of actuarial surplus, is recognized since Standard. Other terms defined a pension plan, and other relevant there are no portions of unfunded elsewhere in this chapter 99 shall have values for the pension plan. actuarial liability that must be identified the meaning ascribed to them in those (7) Curtailment of benefits means an under 9904.412–50(a)(2). definitions unless paragraph (b) of this event; e.g., a plan amendment, in which (8) Since March 28, 1989 Contractor U subsection requires otherwise. the pension plan is frozen and no has computed, assigned, and allocated (1) Accrued benefit cost method further material benefits accrue. Future pension costs for a nonqualified means an actuarial cost method under service may be the basis for vesting of defined-benefit plan on an accrual basis. which units of benefits are assigned to nonvested benefits existing at the time The value of these past accruals, each cost accounting period and are of the curtailment. The plan may hold increased for imputed interest at 7% valued as they accrue; that is, based on assets, pay benefits already accrued, and and decreased for benefits paid by the the services performed by each receive additional contributions for contractor, is equal to $2 million as of employee in the period involved. The unfunded benefits. Employees may or the beginning of the current period. measure of normal cost under this may not continue working for the Contractor U elects to establish a ‘‘Rabbi method for each cost accounting period contractor. trust’’ and the plan meets the other is the present value of the units of (8) Funding agency means an criteria at 9904.412–50(c)(3). Using the benefit deemed to be credited to organization or individual which transition method of paragraph (c) of employees for service in that period. provides facilities to receive and 16550 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations accumulate assets to be used either for purchase of annuities or other means, or has been otherwise transferred, (ii) the payment of benefits under a pension the trusteeship of the plan is assumed discontinued operations, or (iii) plan, or for the purchase of such by the Pension Benefit Guarantee discontinued doing or actively seeking benefits, provided such accumulated Corporation or other conservator. The Government business under contracts assets form a part of a pension plan plan may or may not be replaced by subject to this Standard. established for the exclusive benefit of another plan. (21) Termination of employment gain the plan participants and their (15) Permitted unfunded accruals or loss means an actuarial gain or loss beneficiaries. The fair market value of means the amount of pension cost for resulting from the difference between the assets held by the funding agency as nonqualified defined-benefit pension the assumed and actual rates at which of a specified date is the Funding plans that is not required to be funded plan participants separate from Agency Balance as of that date. under 9904.412–50(d)(2). The employment for reasons other than (9) Immediate-gain actuarial cost Accumulated Value of Permitted retirement, disability, or death. method means any of the several cost Unfunded Accruals means the value, as (b) * * * methods under which actuarial gains of the measurement date, of the 10. Subsection 9904.413–40 is and losses are included as part of the permitted unfunded accruals adjusted amended by revising paragraphs (b) and unfunded actuarial liability of the for imputed earnings and for benefits (c) to read as follows: pension plan, rather than as part of the paid by the contractor. normal cost of the plan. (16) Prepayment credit means the 9904.413±40 Fundamental requirement. (10) Market value of the assets means amount funded in excess of the pension (a) * * * the sum of the funding agency balance cost assigned to a cost accounting (b) Valuation of the assets of a plus the accumulated value of any period that is carried forward for future pension plan. The actuarial value of the permitted unfunded accruals belonging recognition. The Accumulated Value of assets of a pension plan shall be to a pension plan. The Actuarial Value Prepayment Credits means the value, as determined under an asset valuation of the Assets means the value of cash, of the measurement date, of the method which takes into account investments, permitted unfunded prepayment credits adjusted for interest unrealized appreciation and accruals, and other property belonging at the valuation rate and decreased for depreciation of the market value of the to a pension plan, as used by the actuary amounts used to fund pension costs or assets of the pension plan, including the for the purpose of an actuarial liabilities, whether assignable or not. accumulated value of permitted valuation. (17) Projected benefit cost method unfunded accruals, and shall be used in (11) Normal cost means the annual means either (i) any of the several measuring the components of pension cost attributable, under the actuarial actuarial cost methods which distribute costs. cost method in use, to current and the estimated total cost of all of the (c) Allocation of pension cost to future years as of a particular valuation employees’ prospective benefits over a segments. Contractors shall allocate date, excluding any payment in respect period of years, usually their working pension costs to each segment having of an unfunded actuarial liability. careers, or (ii) a modification of the participants in a pension plan. A (12) Pension plan means a deferred accrued benefit cost method that separate calculation of pension costs for compensation plan established and considers projected compensation a segment is required when the maintained by one or more employers to levels. conditions set forth in 9904.413–50(c)(2) provide systematically for the payment (18) Qualified pension plan means a or (3) are present. When these of benefits to plan participants after pension plan comprising a definite conditions are not present, allocations their retirement, provided that the written program communicated to and may be made by calculating a composite benefits are paid for life or are payable for the exclusive benefit of employees pension cost for two or more segments for life at the option of the employees. which meets the criteria deemed and allocating this cost to these Additional benefits such as permanent essential by the Internal Revenue segments by means of an allocation and total disability and death payments, Service as set forth in the Internal base. When pension costs are separately and survivorship payments to Revenue Code for preferential tax computed for a segment or segments, beneficiaries of deceased employees treatment regarding contributions, the provisions of Cost Accounting may be an integral part of a pension investments, and distributions. Any Standard 9904.412 regarding the plan. other plan is a nonqualified pension assignable cost limitation shall be based (13) Pension plan participant means plan. on the assets and liabilities for the any employee or former employee of an (19) Segment means one of two or segment or segments for purposes of employer, or any member or former more divisions, product departments, such computations. In addition, the member of an employee organization, plants, or other subdivisions of an amount of pension cost assignable to a who is or may become eligible to receive organization reporting directly to a segment or segments shall not exceed a benefit from a pension plan which home office, usually identified with the maximum tax-deductible amount covers employees of such employer or responsibility for profit and/or computed for the plan as a whole and members of such organization who have producing a product or service. The apportioned among the segment(s). satisfied the plan’s participation term includes Government-owned 11. Subsection 9904.413–50 is revised requirements, or whose beneficiaries are contractor-operated (GOCO) facilities, to read as follows: receiving or may be eligible to receive and joint ventures and subsidiaries any such benefit. A participant whose (domestic and foreign) in which the 9904.413±50 Techniques for application. employment status with the employer organization has a majority ownership. (a) Assignment of actuarial gains and has not been terminated is an active The term also includes those joint losses. (1) In accordance with the participant of the employer’s pension ventures and subsidiaries (domestic and provisions of Cost Accounting Standard plan. foreign) in which the organization has 9904.412, actuarial gains and losses (14) Pension plan termination means less than a majority ownership, but over shall be identified separately from other an event; i.e., plan amendment, in which it exercises control. unfunded actuarial liabilities. which either the pension plan ceases to (20) Segment closing means that a (2) Actuarial gains and losses exist and all benefits are settled by segment has (i) been sold or ownership determined under a pension plan whose Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16551 costs are measured by an immediate- the pension benefits are based. For into two or more pension plans, and in gain actuarial cost method shall be example, a base consisting of salaries either case, amortized over a 15 year period in equal and wages shall be used for pension (ii) The ratios of market value of the annual installments, beginning with the costs that are calculated as a percentage assets to actuarial accrued liabilities for date as of which the actuarial valuation of salaries and wages; a base consisting each of the merged or separated plans is made. The installment for a cost of the number of participants shall be are materially different from one accounting period shall consist of an used for pension costs that are another after applying the benefits in element for amortization of the gain or calculated as an amount per participant. effect after the pension plan merger or loss plus an element for interest on the If pension costs are separately pension plan division. unamortized balance at the beginning of calculated for one or more segments, the (4) For a segment whose pension costs the period. If the actuarial gain or loss contractor shall make a distribution are required to be calculated separately determined for a cost accounting period among the segments for the maximum pursuant to paragraphs (c) (2) or (3) of is not material, the entire gain or loss tax-deductible amount and the this subsection, such calculations shall may be included as a component of the contribution to the funding agency as be prospective only; pension costs need current or ensuing year’s pension cost. follows: not be redetermined for prior years. (3) Pension plan terminations and (i) When apportioning the maximum (5) For a segment whose pension costs curtailments of benefits shall be subject tax-deductible amount, which is are either required to be calculated to adjustment in accordance with determined for a qualified defined- separately pursuant to paragraph (c)(2) 9904.413–50(c)(12). benefit pension plan as a whole or (c)(3) of this subsection or calculated (b) Valuation of the assets of a pursuant to the Employee Retirement separately at the election of the pension plan. (1) The actuarial value of Income Security Act of 1974 (ERISA), 29 contractor, there shall be an initial the assets of a pension plan shall be U.S.C. 1001 et seq., as amended, to allocation of a share in the undivided used: segments, the contractor shall use a base market value of the assets of the pension (i) In measuring actuarial gains and that considers the otherwise assignable plan to that segment, as follows: losses, and pension costs or the funding levels of (i) If the necessary data are readily (ii) For purposes of measuring other the individual segments. determinable, the funding agency components of pension cost. (ii) When apportioning amounts balance to be allocated to the segment (2) The actuarial value of the assets of deposited to a funding agency to shall be the amount contributed by, or a pension plan may be determined by segments, contractors shall use a base on behalf of, the segment, increased by the use of any recognized asset that is representative of the assignable income received on such assets, and valuation method which provides pension costs, determined in decreased by benefits and expenses paid equivalent recognition of appreciation accordance with 9904.412–50(c) for the from such assets. Likewise, the and depreciation of the market value of individual segments. However, for accumulated value of permitted the assets of the pension plan. However, qualified defined-benefit pension plans, unfunded accruals to be allocated to the the actuarial value of the assets the contractor may first apportion segment shall be the amount of produced by the method used shall fall amounts funded to the segment or permitted unfunded accruals assigned within a corridor from 80 to 120 percent segments subject to this Standard. to the segment, increased by interest of the market value of the assets, (2) Separate pension cost for a imputed to such assets, and decreased determined as of the valuation date. If segment shall be calculated whenever by benefits paid from sources other than the method produces a value that falls any of the following conditions exist for the funding agency; or outside the corridor, the actuarial value that segment, provided that such (ii) If the data specified in paragraph of the assets shall be adjusted to equal condition(s) materially affect the (c)(5)(i) of this subsection are not readily the nearest boundary of the corridor. amount of pension cost allocated to the determinable for certain prior periods, (3) The method selected for valuing segment: the market value of the assets of the pension plan assets shall be consistently (i) There is a material termination of pension plan shall be allocated to the applied from year to year within each employment gain or loss attributable to segment as of the earliest date such data plan. the segment, are available. Such allocation shall be (4) The provisions of paragraphs (b) (ii) The level of benefits, eligibility for based on the ratio of the actuarial (1) through (3) of this subsection are not benefits, or age distribution is materially accrued liability of the segment to the applicable to plans that are treated as different for the segment than for the plan as a whole, determined in a defined-contribution plans in average of all segments, or manner consistent with the immediate accordance with 9904.412–50(a)(6). (iii) The appropriate actuarial gain actuarial cost method or methods (5) The market and actuarial values of assumptions are, in the aggregate, used to compute pension cost. Such the assets of a pension plan shall not be materially different for the segment than assets shall be brought forward as adjusted for any fee, reserve charge, or for the average of all segments. described in paragraph (c)(7) of this other investment charge for withdrawals Calculations of termination of subsection. from or termination of an investment employment gains and losses shall give (iii) The actuarial value of the assets contract, trust agreement, or other consideration to factors such as of the pension plan shall be allocated to funding arrangement, unless such fee is unexpected early retirements, benefits the segment in the same proportion as determined in an arm’s length becoming fully vested, and the market value of the assets. transaction, and actually incurred and reinstatements or transfers without loss (6) If, prior to the time a contractor is paid. of benefits. An amount may be required to use this Standard, it has (c) Allocation of pension cost to estimated for future reemployments. been calculating pension cost separately segments. (1) For contractors who (3) Pension cost shall also be for individual segments, the amount of compute a composite pension cost separately calculated for a segment assets previously allocated to those covering plan participants in two or under circumstances where— segments need not be changed. more segments, the base to be used for (i) The pension plan for that segment (7) After the initial allocation of allocating such costs shall be becomes merged with that of another assets, the contractor shall maintain a representative of the factors on which segment, or the pension plan is divided record of the portion of subsequent 16552 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations contributions, permitted unfunded actuarial cost method used for a plan can result in an inequitable calculation, accruals, income, benefit payments, and shall be the same for all segments. the contracting parties shall agree on an expenses attributable to the segment and Unless a separate calculation of pension appropriate date. paid from the assets of the pension plan: cost for a segment is made because of a (iv) Pension plan improvements Income and expenses shall include a condition set forth in paragraph adopted within 60 months of the date of portion of any investment gains and (c)(2)(iii) of this subsection, the same the event which increase the actuarial losses attributable to the assets of the actuarial assumptions may be used for accrued liability shall be recognized on pension plan. Income and expenses of all segments covered by a plan. a prorata basis using the number of the pension plan assets shall be (11) If a pension plan has participants months the date of adoption preceded allocated to the segment in the same in the home office of a company, the the event date. Plan improvements proportion that the average value of home office shall be treated as a mandated by law or collective assets allocated to the segment bears to segment for purposes of allocating the bargaining agreement are not subject to the average value of total pension plan cost of the pension plan. Pension cost this phase-in. assets for the period for which income allocated to a home office shall be a part (v) If a segment is closed due to a sale and expenses are being allocated. of the costs to be allocated in or other transfer of ownership to a (8) If plan participants transfer among accordance with the appropriate successor in interest in the contracts of segments, contractors need not transfer requirements of Cost Accounting the segment and all of the pension plan assets or actuarial accrued liabilities Standard 9904.403. assets and actuarial accrued liabilities unless a transfer is sufficiently large to (12) If a segment is closed, if there is pertaining to the closed segment are distort the segment’s ratio of pension a pension plan termination, or if there transferred to the successor segment, plan assets to actuarial accrued is a curtailment of benefits, the then no adjustment amount pursuant to liabilities determined using the accrued contractor shall determine the this paragraph (c)(12) is required. If only benefit cost method. If assets and difference between the actuarial accrued some of the pension plan assets and liabilities are transferred, the amount of liability for the segment and the market actuarial accrued liabilities of the closed assets transferred shall be equal to the value of the assets allocated to the segment are transferred, then the actuarial accrued liabilities, determined segment, irrespective of whether or not adjustment amount required under this using the accrued benefit cost method, the pension plan is terminated. The paragraph (c)(12) shall be determined transferred. difference between the market value of based on the pension plan assets and (9) Contractors who separately the assets and the actuarial accrued actuarial accrued liabilities remaining calculate the pension cost of one or liability for the segment represents an with the contractor. In either case, the more segments may calculate such cost adjustment of previously-determined effect of the transferred assets and either for all pension plan participants pension costs. liabilities is carried forward and assignable to the segment(s) or for only (i) The determination of the actuarial recognized in the accounting for the active participants of the segment(s). accrued liability shall be made using the pension cost at the successor contractor. If costs are calculated only for active accrued benefit cost method. The (vi) The Government’s share of the participants, a separate segment shall be actuarial assumptions employed shall adjustment amount determined for a created for all of the inactive be consistent with the current and prior segment shall be the product of the participants of the pension plan and the long term assumptions used in the adjustment amount and a fraction. The cost thereof shall be calculated. When a measurement of pension costs. If there adjustment amount shall be reduced for contractor makes such an election, is a pension plan termination, the any excise tax imposed upon assets assets shall be allocated to the segment actuarial accrued liability shall be withdrawn from the funding agency of for inactive participants in accordance measured as the amount paid to a qualified pension plan. The numerator with paragraphs (c) (5), (6), and (7) of irrevocably settle all benefit obligations of such fraction shall be the sum of the this subsection. When an employee of a or paid to the Pension Benefit Guarantee pension plan costs allocated to all segment becomes inactive, assets shall Corporation. contracts and subcontracts (including be transferred from that segment to the (ii) In computing the market value of Foreign Military Sales) subject to this segment established to accumulate the assets for the segment, if the contractor Standard during a period of years assets and actuarial liabilities for the has not already allocated assets to the representative of the Government’s inactive plan participants. The amount segment, such an allocation shall be participation in the pension plan. The of assets transferred shall be equal to the made in accordance with the denominator of such fraction shall be actuarial accrued liabilities, determined requirements of paragraphs (c)(5) (i) and the total pension costs assigned to cost under the accrued benefit cost method, (ii) of this subsection. The market value accounting periods during those same for these inactive plan participants. If of the assets shall be reduced by the years. This amount shall represent an inactive participants become active, accumulated value of prepayment adjustment of contract prices or cost assets and liabilities shall similarly be credits, if any. Conversely, the market allowance as appropriate. The transferred to the segments to which the value of the assets shall be increased by adjustment may be recognized by participants are assigned. Such transfers the current value of any unfunded modifying a single contract, several but need be made only as of the last day of actuarial liability separately identified not all contracts, or all contracts, or by a cost accounting period. The total and maintained in accordance with use of any other suitable technique. annual pension cost for a segment 9904.412–50(a)(2). (vii) The full amount of the having active employees shall be the (iii) The calculation of the difference Government’s share of an adjustment is amount calculated for the segment plus between the market value of the assets allocable, without limit, as a credit or an allocated portion of the pension cost and the actuarial accrued liability shall charge during the cost accounting calculated for the inactive participants. be made as of the date of the event (e.g., period in which the event occurred and Such an allocation shall be on the same contract termination, plan amendment, contract prices/costs will be adjusted basis as that set forth in paragraph (c)(1) plant closure) that caused the closing of accordingly. However, if the contractor of this subsection. the segment, pension plan termination, continues to perform Government (10) Where pension cost is separately or curtailment of benefits. If such a date contracts, the contracting parties may calculated for one or more segments, the is not readily determinable, or if its use negotiate an amortization schedule, Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16553 including interest adjustments. Any Asset amortized and allocated only to amortization agreement shall consider valuation Market Segment X; all other Segment X the magnitude of the adjustment credit method computations may be included as part or charge, and the size and nature of the of the composite calculation. After the Debt securities, continuing contracts. expected to be termination of employment gain is 12. Subsection 9904.413–60 is revised held to matu- amortized, the contractor is no longer to read as follows: rity ...... 550,000 600,000 required to separately calculate the costs for Segment X unless subsequent events 9904.413±60 Illustrations. Other debt secu- rities ...... 600,000 750,000 require each separate calculation. (a) Assignment of actuarial gains and Land and Build- (2) Contractor D has a defined-benefit losses. Contractor A has a defined- ings, net of pension plan covering employees at ten benefit pension plan whose costs are depreciation ... 400,000 750,000 segments, all of which have some measured under an immediate-gain contracts subject to this Standard. The Total ...... 7,650,000 10,000,000 actuarial cost method. The contractor contractor’s calculation of normal cost is makes actuarial valuations every other based on a percentage of payroll for all year. In the past, at each valuation date, (2) Section 9904.413–50(b)(2) requires that the actuarial value of the assets of employees covered by the plan. One of the contractor has calculated the the segments (Segment Y) is entirely actuarial gains and losses that have the pension plan fall within a corridor from 80 to 120 percent of market. The devoted to Government work. The occurred since the previous valuation contractor’s policy is to place junior date and has merged such gains and corridor for the plan’s assets as of January 1 is from $12 million to $8 employees in this segment. The salary losses with the unfunded actuarial scale assumption for employees of the liabilities that are being amortized. million. Because the asset value reached by the contractor, $7,650,000, falls segment is so different from that of the Pursuant to 9904.413–40(a), the other segments that the pension cost for contractor must make an actuarial outside that corridor, the value reached must be adjusted to equal the nearest Segment Y would be materially different valuation annually. Any actuarial gains if computed separately. Pursuant to boundary of the corridor: $8 million. In or losses measured must be separately 9904.413–50(c)(2)(iii), the contractor subsequent years the contractor must amortized over a 15-year period must compute the pension cost for continue to use the same method for beginning with the period for which the Segment Y as if it were a separate valuing assets in accordance with actuarial valuation is made in pension plan. Therefore, the contractor 9904.413–50(b)(3). If the value produced accordance with 9904.413–50(a) (1) and must allocate a portion of the market falls inside the corridor, such value (2). value of pension plan’s assets to shall be used in measuring pension (b)(1) Valuation of the assets of a Segment Y in accordance with costs. pension plan. Contractor B has a 9904.413–50(c)(5). Memorandum qualified defined-benefit pension plan, (c) Allocation of pension costs to records may be used in making the the assets of which are invested in segments. (1) Contractor C has a allocation. However, because the equity securities, debt securities, and defined-benefit pension plan covering necessary records only exist for the last real property. The contractor, whose employees at five segments. Pension five years, 9904.413–50(c)(5)(ii) permits cost accounting period is the calendar cost is computed by use of an an initial allocation to be made as of the year, has an annual actuarial valuation immediate-gain actuarial cost method. earliest date such records are available. of the pension plan assets in June of One segment (X) is devoted primarily to The initial allocation must be made on each year; the effective date of the performing work for the Government. the basis of the immediate gain actuarial valuation is the beginning of that year. During the current cost accounting cost method or methods used to The contractor’s method for valuing the period, Segment X had a large and calculate prior years’ pension cost for assets of the pension plan is as follows: unforeseeable reduction of employees the plan. Once the assets have been debt securities expected to be held to because of a contract termination at the allocated, they shall be brought forward maturity are valued on an amortized convenience of the Government and to the current period as described in basis running from initial cost at because the contractor did not receive 9904.413–50(c)(7). A portion of the purchase to par value at maturity; land an anticipated follow-on contract to one undivided actuarial value of assets shall and buildings are valued at cost less that was completed during the period. then be allocated to the segment based depreciation taken to date; all equity The segment does continue to perform on the segment’s proportion of the securities and debt securities not work under several other Government market value of assets in accordance expected to be held to maturity are contracts. As a consequence of this with 9904.413–50(c)(5)(iii). In future valued on the basis of a five-year termination of employment gain, a cost accounting periods, the contractor moving average of market values. In separate calculation of the pension cost shall make separate pension cost making an actuarial valuation, the for Segment X would result in calculations for Segment Y based on the contractor must compare the values materially different allocation of costs to appropriate salary scale assumption. reached under the asset valuation the segment than would a composite Because the factors comprising pension method used with the market value of calculation and allocation by means of cost for the other nine segments are all the assets as required by 9904.413– a base. Accordingly, pursuant to relatively equal, the contractor may 40(b). In this case, the assets are valued 9904.413–50(c)(2), the contractor must compute pension cost for these nine as of January 1 of that year. The calculate a separate pension cost for segments by using composite factors. As contractor established the following Segment X. In doing so, the entire required by 9904.413–50(c)(1), the base values as of the valuation date. termination of employment gain must to be used for allocating such costs shall be assigned to Segment X and amortized be representative of the factors on which Asset over fifteen years. If the actuarial the pension benefits are based. valuation Market method assumptions for Segment X continue to (3) Contractor E has a defined-benefit be substantially the same as for the pension plan which covers employees at Cash ...... $100,000 100,000 other segments, the termination of twelve segments. The contractor uses Equity securities 6,000,000 7,800,000 employment gain may be separately composite actuarial assumptions to 16554 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations develop a pension cost for all segments. that it had a separate pension plan. (8) Contractor K has a five-year Three of these segments primarily Accordingly, pursuant to 9904.413– contract to operate a Government- perform Government work; the work at 50(c)(3), Contractor G must allocate to owned facility. The employees of that the other nine segments is primarily Segment H a portion of the assets of the facility are covered by the contractor’s commercial. Employee turnover at the combined plan. The amount to be overall qualified defined-benefit segments performing commercial work allocated shall be the market value of pension plan which covers salaried and is relatively stable. However, Segment H’s pension plan assets at the hourly employees at other locations. At employment experience at the date of the merger determined in the conclusion of the five-year period, Government segments has been very accordance with 9904.413–50(c)(5), and the Government decides not to renew volatile; there have been large shall be adjusted for subsequent receipts the contract. Although some employees fluctuations in employment levels and and expenditures applicable to the are hired by the successor contractor, the contractor assumes that this pattern segment in accordance with 9904.413– because Contractor K no longer operates of employment will continue to occur. 50(c)(7). Pursuant to 9904.413–40(b)(1) the facility, it meets the 9904.413– It is evident that separate termination of and 9904.413–50(c)(5)(iii), Contractor G 30(a)(20)(i) definition of a segment employment assumptions for the must use these amounts of assets as the closing. Contractor K must compute the Government segments and the basis for determining the actuarial value actuarial accrued liability for the commercial segments will result in of assets used for calculating the annual pension plan for that facility using the materially different pension costs for the pension cost applicable to Segment H. accrued benefit cost method as of the Government segments. Therefore, the (6) Contractor I has a defined-benefit date the contract expired in accordance cost for these segments must be pension plan covering employees at with 9904.413–50(c)(12)(i). Because separately calculated, using the seven segments. The contractor has been many of Contractor K’s employees are appropriate termination of employment making a composite pension cost terminated from the pension plan, the assumptions for these segments in calculation for all of the segments. Internal Revenue Service considers it to accordance with 9904.413–50(c)(2)(iii). However, the contractor determines be a partial plan termination, and thus (4) Contractor F has a defined-benefit that, pursuant to this Standard, separate requires that the terminated employees pension plan covering employees at 25 pension costs must be calculated for one become fully vested in their accrued segments. Twelve of these segments of the segments. In accordance with benefits to the extent such benefits are primarily perform Government work; 9904.413–50(c)(9), the contractor elects funded. Taking this mandated benefit the remaining segments perform to allocate pension plan assets only for improvement into consideration in primarily commercial work. The the active participants of that segment. accordance with 9904.413–50(c)(12)(iv), contractor’s records show that the The contractor must then create a the actuary calculates the actuarial termination of employment experience segment to accumulate the assets and accrued liability to be $12.5 million. and projections for the twelve segments actuarial accrued liabilities for the The contractor must then determine the are so different from that of the average plan’s inactive participants. When market value of the pension plan assets of all of the segments that separate active participants of a segment become allocable to the facility, in accordance pension cost calculations are required inactive, the contractor must transfer with 9904.413–50(c)(5), as of the date for these segments pursuant to assets to the segment for inactive agreed to by the contracting parties 9904.413–50(c)(2). However, because participants equal to the actuarial pursuant to 9904.413–50(c)(12)(iii), the the termination of employment accrued liabilities for the participants date the contract expired. In making this experience and projections are about the that become inactive. determination, the contractor is able to same for all twelve segments, Contractor (7) Contractor J has a defined-benefit do a full historical reconstruction of the F may calculate a composite pension pension plan covering employees at ten market value of the assets allocated to cost for the twelve segments and segments. The contractor makes a the segment. In this case, the market allocate the cost to these segments by composite pension cost calculation for value of the segment’s assets amounted use of an appropriate allocation base in all segments. The contractor’s records to $13.8 million. Thus, for this facility accordance with 9904.413–50(c)(1). show that the termination of (5) After this Standard becomes employment experience for one the value of pension plan assets applicable to Contractor G, it acquires segment, which is performing primarily exceeded the actuarial accrued liability Contractor H and makes it Segment H. Government work, has been by $1.3 million. Pursuant to 9904.413– Prior to the merger, each contractor had significantly different from the average 50(c)(12)(vi), this amount indicates the its own defined-benefit pension plan. termination of employment experience extent to which the Government over- Under the terms of the merger, of the other segments. Moreover, the contributed to the pension plan for the Contractor H’s pension plan and plan contractor assumes that such different segment and, accordingly, is the amount assets were merged with those of experience will continue. Because of of the adjustment due to the Contractor G. The actuarial this fact, and because the application of Government. assumptions, current salary scale, and a different termination of employment (9) Contractor L operated a segment other plan characteristics are about the assumption would result in significantly over the last five years during which same for Segment H and Contractor G’s different costs being charged the 80% of its work was performed under other segments. However, based on the Government, the contractor must Government CAS-covered contracts. same benefits at the time of the merger, develop separate pension cost for that The Government work was equally the plan of Contractor H had a segment. In accordance with 9904.413– divided each year between fixed-price disproportionately larger unfunded 50(c)(2)(ii), the amount of pension cost and cost-type contracts. The employees actuarial liability than did Contractor must be based on an acceptable of the facility are covered by a funded G’s plan. Any combining of the assets termination of employment assumption nonqualified defined-benefit pension and actuarial liabilities of both plans for that segment; however, as provided plan accounted for in accordance with would result in materially different in 9904.413–50(c)(10), all other 9904.412–50(c)(3). For each of the last pension cost allocation to Contractor G’s assumptions for that segment may be five years the highest Federal corporate segments than if pension cost were the same as those for the remaining income tax rate has been 30%. Pension computed for Segment H on the basis segments. costs of $1 million per year were Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16555 computed using a projected benefit cost buyer and is subsumed in the future the contract the market value of the method. Contractor L funded at the pension cost accounting of the buyer. If segment’s assets was $20 million and complement of the tax rate ($700,000 the transferred liabilities and assets of the actuarial accrued liability per year). The pension plan assets held the segment are merged into the buyer’s determined under the actuarial cost by the funding agency earned 8% each pension plan which has a different ratio method in use was $22 million. An year. At the end of the five-year period, of market value of pension plan assets actuarial accrued liability of $16 million the funding agency balance; i.e., the to actuarial accrued liabilities, then is determined using the accrued benefit market value of invested assets, was pension costs must be separately cost method as required by 9904.413– $4.4 million. As of that date, the computed in accordance with 9904.413– 50(c)(12)(i). The segment closing accumulated value of permitted 50(c)(3). adjustment is $4 million ($20 million— unfunded accruals; i.e., the current (12) Contractor M sells its only $16 million). value of the $300,000 not funded each government segment. Through a (15) Contractor P terminated its year, is $1.9 million. As defined by contract novation, the buyer assumes underfunded defined-benefit pension 9904.413–30(a)(20)(i), a segment closing responsibility for performance of the plan for hourly employees. The market occurs when Contractor L sells the segment’s government contracts. Just value of the assets for the pension plan segment at the end of the fifth year. prior to the sale, the actuarial accrued is $100 million. Although the actuarial Thus, for this segment, the market value liability under the actuarial cost method accrued liability exceeds the $100 of the assets of the pension plan in use is $18 million and the market million of assets, the termination determined in accordance with value of assets allocated to the segment liability for benefits guaranteed by the 9904.413–30(a)(10) is $6.3 million, of $22 million. In accordance with the Pension Benefit Guarantee Corporation which is, the sum of the funding sales agreement, Contractor M is (PBGC) is only $85 million. Therefore, account balance ($4.4 million) and the required to transfer $20 million of assets the $15 million of assets in excess of the accumulated value of permitted to the new plan. In determining the liability for guaranteed benefits are unfunded accruals ($1.9 million). segment closing adjustment under allocated to plan participants in Pursuant to 9904.413–50(c)(12)(i), the 9904.413–12(c)(12) the actuarial accrued accordance with PBGC regulations. The contractor uses the accrued benefit cost liability and the market value of assets PBGC does not impose an assessment method to calculate an actuarial accrued are reduced by the amounts transferred for unfunded guaranteed benefits liability of $5 million as of that date. to the buyer by the sale. The adjustment against the contractor. The adjustment There is no transfer of plan assets or amount, which is the difference amount determined under 9904.413– liabilities to the buyer. The difference between the remaining assets ($2 50(c)(12) is zero. between the market value of the assets million) and the remaining actuarial (16) Assume the same facts as and the actuarial accrued liability for liability ($0), is $2 million. 9904.413–60(c)(17), except that the the segment is $1.3 million ($6.3 (13) Contractor N has three segments termination liability for benefits million—$5 million). Pursuant to that perform primarily government work guaranteed by the Pension Benefit 9904.413–50(c)(12)(vi), the adjustment and has been separately calculating Guarantee Corporation (PBGC) is $120 due the Government for its 80% share pension costs for each segment. As part million. The PBGC imposes a $20 of previously-determined pension costs of a corporate reorganization, the million ($120 million—$100 Million) for CAS-covered contracts is $1.04 contractor closes the production facility assessment against Contractor P for the million (80% times $1.3 million). for Segment A and transfers all of that unfunded guaranteed benefits. The Because contractor L has no other segment’s contracts and employees to contractor then determines the Government contracts the $1.04 million Segments B and C, the two remaining Government’s share of the pension plan is a credit due to the Government. government segments. The pension termination adjustment charge of $20 (10) Assume the same facts as in assets from Segment A are allocated to million in accordance with 9904.413– 9904.413–60(c)(9), except that the remaining segments based on the 50(c)(12)(vi). In accordance with Contractor L continues to perform actuarial accrued liability of the 9904.413–50(c)(12)(vii), the cognizant substantial Government contract work transferred employees. Because Segment Federal official may negotiate an through other segments. After A has discontinued operations, a amortization schedule based on the considering the amount of the segment closing has occurred pursuant contractor’s schedule of payments to the adjustment and the current level of to 9904.413–30(a)(20)(ii). However, PBGC. contracts, the contracting officer and the because all pension assets and liabilities (17) Assume the same facts as in contractor establish an amortization have been transferred to segments that 9904.413–60(c)(16), except that schedule so that the $1.04 million is are the successors in interest of the pursuant to 9904.412–50(a)(2) recognized as credits against ongoing contracts of Segment A, an immediate Contractor P has an unassignable contracts in five level annual period adjustment is not required if portion of unfunded actuarial liability installments, including an interest Contractor N and the cognizant Federal for prior unfunded pension costs which adjustment based on the interest official negotiate an amortization equals $8 million. The $8 million assumption used to compute pension schedule pursuant to 9904.413– represents the value of assets that would costs for the continuing contracts. This 50(c)(12)(vii). have been available had all assignable amortization schedule satisfies the (14) Contractor O does not renew its costs been funded and, therefore, must requirements of 9904.413– government contract and decides to not be added to the assets used to determine 50(c)(12))(vii). seek additional government contracts the pension plan termination (11) Assume the same facts as in for the affected segment. The contractor adjustment in accordance with 9904.413–60(c)(9). As part of the reduces the work force of the segment 9904.413–50(c)(12)(ii). In this case, the transfer of ownership, Contractor L also that had been dedicated to the adjustment charge is determined to be transfers all pension liabilities and government contract and converts the $12 million ($20 million¥$8 million). assets of the segment to the buyer. segment’s operations to purely (18) Contractor Q terminates its Pursuant to 9904.413–50(c)(12)(v), the commercial work. In accordance with qualified defined-benefit pension plan segment closing adjustment amount for 9904.413–30(a)(20)(iii), the segment has without establishing a replacement the current period is transferred to the closed. Immediately prior to the end of plan. At termination, the market value 16556 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations of assets are $85 million. All obligations is determined under the accrued benefit for Segments A and B and has for benefits are irrevocably transferred cost method using the interest separately computed pension costs for to an insurance company by the assumption used for the last four each segment. Both segments perform purchase of annuity contracts at a cost actuarial valuations. The market value work under contracts subject to this of $55 million, which thereby of assets, determined in accordance Standard. On the first day of the current determines the actuarial liability in with 9904.413–50(c)(12)(ii), is $90 cost accounting period, Contractor T accordance with 9904.413–50(c)(12)(i). million. Contractor R shall determine merges the two pension plans so that The contractor receives a reversion of the Government’s share of the segments A and B are now covered by $30 million ($85 million¥$55 million). adjustment in accordance with a single pension plan. Because the ratio The adjustment is equal to the reversion 9904.413–50(c)(12)(vi). The contractor of assets to liabilities for each plan is amount, which is the excess of the then shall allocate that share of the $12 materially different from that of the market value of assets over the actuarial million adjustment ($90 million¥$78 merged plan, the contractor continues liability. However, ERISA imposes a million) determined under 9904.413– the separate computation of pension 50% excise tax of $15 million (50% of 50(c)(12) to CAS-covered contracts. The costs for each segment pursuant to $30 million) on the reversion amount. In full amount of adjustment shall be made 9904.413–50(c)(3). After considering the accordance with 9904.413–50(c)(12)(vi), without limitation in the current cost assignable cost limitations for each the $30 million adjustment amount is accounting period unless arrangements segment, Contractor T determines the reduced by the $15 million excise tax. to amortize the adjustment are potentially assignable pension cost is Pursuant to 9904.413–50(c)(12)(vi), a permitted and negotiated pursuant to $12,000 for Segment A and $24,000 for share of the $15 million net adjustment 9904.413–50(c)(12)(vii). Segment B. The maximum tax- ($30 million—$15 million) shall be (21) Contractor S amends its qualified deductible amount for the merged plan allocated, without limitation, as a credit defined-benefit pension plan to ‘‘freeze’’ is $30,000, which is $6,000 less than the to CAS-covered contracts. all accrued benefits at their current sum of the otherwise assignable costs (19) Assume that, in addition to the level. Although not required by law, the for the segments ($36,000). To facts of 9904.413–60(c)(18), Contractor amendment also provides that all determine the portion of the total Q has an accumulated value of accrued benefits are fully vested. maximum tax-deductible amount prepayment credits of $10 million. Contractor S must determine the applicable to each segment on a Contractor Q has $3 million of adjustment for the curtailment of reasonable basis, the contractor prorates unfunded actuarial liability separately benefits. Fifteen months prior to the the $30,000 by the pension cost identified and maintained pursuant to date of the plan amendment freezing determined for each segment after 9904.412–50(a)(2). The assets used to benefits, Contractor S voluntarily considering the assignable cost determine the adjustment amount equal amended the plan to increase benefits. limitations for each segment. Therefore, $78 million. This amount is determined This voluntary amendment resulted in in accordance with 9904.413–50(c)(1)(i), as the market value of assets ($85 an overall increase of over 10%. All the assignable pension cost is $10,000 million) minus the accumulated value actuarial accrued liabilities are for Segment A ($30,000 times $12,000 of prepayment credits ($10 million) plus computed using the accrued benefit cost divided by $36,000) and $20,000 for the portion of unfunded actuarial method. The actuarial accrued liability Segment B ($30,000 times $24,000 liability maintained pursuant to for all accrued benefits is $1.8 million. divided by $36,000). Contractor T funds 9904.412–50(a)(2) ($3 million). The actuarial accrued liability for vested the full $30,000 and allocates the Therefore, the difference between the benefits immediately prior to the assignable pension cost for each assets and the actuarial liability is $23 current plan amendment is $1.6 million. segment to final cost objectives. million ($78 million¥$55 million). In The actuarial accrued liability accordance with 9904.413–50(c)(12)(vi), determined for vested benefits based on (23) Assume the same facts as in the $23 million adjustment is reduced the plan provisions before the voluntary 9904.413–60(c)(22), except that the tax- by the $15 million excise tax to equal amendment is $1.4 million. The $1.4 deductible maximum is $40,000 and the $8 million. The contracting officer million actuarial liability is based on ERISA minimum funding requirement is determines that the pension cost data of benefit provisions that have been in $18,000. Since funding of the accrued the most recent eight years reasonably effect for six years and is fully pension cost is not constrained by tax- reflects the government’s participation recognized. However, the $200,000 deductibility, Contractor T determines in the pension plan. The sum of costs increase in liability due to the voluntary the assignable pension cost to be allocated to fixed-price and cost-type benefit improvement adopted 15 $12,000 for Segment A and $24,000 for contracts subject to this Standard over months ago must be phased-in on a Segment B. If the contractor funds the eight-year period is $21 million. The prorata basis over 60 months. Therefore, $36,000, the full assigned pension cost sum of costs assigned to cost accounting only 25% (15 months divided by 60 of each segment can be allocated to final periods during the last eight years months) of the $200,000 increase, or cost objectives. However, because the equals $42 million. Therefore, the $50,000, can be included in the contractor funds only the ERISA government’s share of the net curtailment liability. The current minimum of $18,000, the contractor adjustment is 50% ($21 million divided amendment voluntarily increasing must apportion the $18,000 contribution by $42 million) of the $8 million and vesting was just adopted and, therefore, to each segment on a basis that reflects equals $4 million. none of the associated increase in the assignable pension cost of each (20) Contractor R maintains a actuarial accrued liability can be segment in accordance with 9904.413– qualified defined-benefit pension plan. included. Accordingly, in accordance 50(c)(1)(ii). To measure the funding Contractor R amends the pension plan with 9904.413–50(c)(12)(iv), Contractor level of each segment, Contractor T uses to eliminate the earning of any future S determines the adjustment for the an ERISA minimum funding benefits; however the participants do curtailment of benefits using an requirement separately determined for continue to earn vesting service. actuarial accrued liability of $1.45 each segment, as if the segment were a Pursuant to 9904.413–30(a)(7), a million ($1.4 million plus $50,000). separate plan. On this basis, the curtailment of benefits has occurred. An (22) Contractor T has maintained allocable pension cost is determined to actuarial accrued liability of $78 million separate qualified defined-benefit plans be $8,000 for Segment A and $10,000 for Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Rules and Regulations 16557 Segment B. In accordance with and, therefore, $0 for each segment. redundantly provided for under revised 9904.412–50(a)(2), Contractor T must Contractor U will deem all existing methods. Conversely, costs that have separately identify, and eliminate from amortization bases maintained for not previously been provided for must future cost computations, $4,000 Segment A to be fully amortized in be provided for under the revised ($12,000¥$8,000) for Segment A and accordance with 9904.412–50(c)(2)(ii). method. This transition subsection is $14,000 ($24,000¥$10,000) for Segment For Segment B, the amortization of not intended to qualify for purposes of B. existing portions of unfunded actuarial assignment or allocation, pension costs (24) Assume the same facts as in liability continues unabated. which have previously been disallowed 9904.413–60(c)(23), except that Segment Furthermore, pursuant to 9904.412– for reasons other than ERISA funding B performs only commercial work. As 50(c)(2)(iii), the contractor establishes limitations. permitted by 9904.413–50(c)(1)(ii), the an additional amortization base for (b) The sum of all portions of contractor first applies $12,000 of the Segment B for the assignable cost deficit unfunded actuarial liability identified contribution amount to Segment A, of $5,000. pursuant to Standard 9904.413, effective which is performing work under 13. Subsection 9904.413–63 is revised March 30, 1995, including such portions Government contracts, for purposes of to read as follows: of unfunded actuarial liability 9904.412–50(d)(i). The remaining determined for transition purposes, is $6,000 is applied to Segment B. The full 9904.413±63 Effective date. subject to the requirements for assigned pension cost of $12,000 for (a) This Standard is effective as of assignment of 9904.412–40(c). Segment A is funded and such amount March 30, 1995. is allocable to CAS-covered contracts. (b) This Standard shall be followed by (c) Furthermore, this Standard, Pursuant to 9904.412–50(a)(2), the each contractor on or after the start of effective March 30, 1995, clarifies, but is contractor separately identifies, and its next cost accounting period not intended to create, rights of the eliminates from future pension costs, beginning after the receipt of a contract contracting parties, and specifies the $18,000 ($24,000¥$6,000) of or subcontract to which this Standard is techniques for determining adjustments unfunded assigned cost for Segment B. applicable. pursuant to 9904.413–50(c)(12). These (25) Contractor U has a qualified (c) Contractors with prior CAS- rights and techniques should be used to defined-benefit pension plan covering covered contracts with full coverage resolve outstanding issues that will employees at two segments that perform shall continue to follow Standard affect pension costs of contracts subject work on contracts subject to this 9904.413 in effect prior to March 30, to this Standard. Standard. The ratio of the actuarial 1995, until this Standard, effective (d) The method, or methods, value of assets to actuarial accrued March 30, 1995, becomes applicable employed to achieve an equitable liabilities is significantly different following receipt of a contract or transition shall be consistent with the between the two segments. Therefore, subcontract to which this revised provisions of this Standard and shall be Contractor U is required to compute Standard applies. approved by the contracting officer. pension cost separately for each 14. A new subsection 9904.413–64 is (e) All adjustments shall be segment. The actuarial value of assets added to read as follows: prospective only. However, costs/prices allocated to Segment A exceeds the of prior and existing contracts not actuarial accrued liability by $50,000. 9904.413±64 Transition method. subject to price adjustment may be Segment B has an unfunded actuarial (a) To be acceptable, any method of considered in determining the liability of $20,000. Thus, the pension transition from compliance with appropriate transition method or plan as a whole has an actuarial surplus Standard 9904.413 in effect prior to adjustment amount for the computation of $30,000. Pension cost of $5,000 is March 30, 1995, to compliance with of costs/prices of contracts subject to computed for Segment B and is less Standard 9904.413 in effect as of March this Standard. than Segment B’s assignable cost 30, 1995, must follow the equitable limitation of $9,000. The tax-deductible principle that costs, which have been [FR Doc. 95–7555 Filed 3–29–95; 8:45 am] maximum is $0 for the plan as whole previously provided for, shall not be BILLING CODE 3110±01±P federal register March 30,1995 Thursday Assessments; Notice NOFA forLead-BasedPaint(LBP)Risk Development Housing andUrban Department of Part III 16559 16560 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices DEPARTMENT OF HOUSING AND free number). A telecommunications available, the remaining funds are to be URBAN DEVELOPMENT device (TDD) for persons with hearing carried over in subsequent NOFAs. and speech impediments is available at Thus, in FY 1992, the Department Office of the Assistant Secretary for 1–800–877–8339. awarded $9,055,821. In FY 1993, Public and Indian Housing FOR FURTHER INFORMATION CONTACT: $14,797,634 was available for LBP risk assessment funding and $2,840,711 was [Docket No. N±95±3778; FR±3875±N±01] William J. Flood, Director, Modernization Division, Office of awarded based on applications received. NOFA for Lead-Based Paint (LBP) Risk Distressed and Troubled Housing In FY 1994, $11,946,823 was available; Assessments Recovery, Department of Housing and of that amount $3,888,076 was awarded, Urban Development, 451 Seventh Street, based on applications received. AGENCY: Office of the Assistant SW., Room 4134, Washington, D.C. Additionally, $16,312 was awarded in Secretary for Public and Indian 20410, telephone (202) 708–1640. FY 1994 to correct calculation errors Housing, HUD. Indian Housing Authorities may made on applications submitted and ACTION: Notice of funding availability contact: Dom Nessi, Director, Office of eligible for funding in FY 1993. The for FY 1995. Native American Programs, Department total amount of funding that remains of Housing and Urban Development, available under this FY 1995 NOFA is SUMMARY: This NOFA informs Public 451 Seventh Street, SW., Room B–133, up to $8,052,535. The funding may Housing Agencies and Indian Housing Washington, DC 20410, telephone (202) change if the carryovers, transfers, and Authorities (referred to jointly as 755–0032. A telecommunications device recaptures estimated to occur in FY ‘‘HAs’’) that have pre-1980 family (TDD) for persons with hearing and 1995 are not realized. developments, of the availability of up speech impediments is available at (202) (2) Selection of applications for to $8,052,535 in funding for lead-based 708–0850 . (These are not toll-free funding. Awards shall be made on a paint (LBP) risk assessments. The NOFA telephone numbers.) first-come, first-served basis. contains information on the following: Additionally, an application must be SUPPLEMENTARY INFORMATION: (a) The purpose of the NOFA, complete and must meet the threshold available amounts and eligibility; Paperwork Reduction Act Statement criteria set forth in Section II.B. of this (b) Application processing, including The information collection NOFA. As such, it is required that the how to apply and how selections will be requirements contained in this NOFA proposed risk assessment be performed made; have been approved by the Office of in pre-1980 family developments. (c) A schedule of steps involved in the Management and Budget (OMB), under Further, the Department has determined application process; section 3504(h) of the Paperwork that a development targeted within an (d) Notice that funds will be awarded Reduction Act of 1980 (44 U.S.C. 3501– application will not be eligible for on a first-come, first-served basis; and funding where a development has been: 3520), and assigned OMB control • (e) Notice of the requirement that the numbers 0348–0043, 2577–0044, 2525– Tested and abated; or • Tested and the results were Department’s risk assessment protocol 0101, and 0348–0046. negative; or be used by HAs in conducting a LBP • risk assessment and in developing I. Purpose and Substantive Description Tested, results were positive, and an adequate interim control plan has recommendations regarding interim A. Allocation Amounts controls. been developed; or (1) Total amount available. The • The subject of a risk assessment DATES: An application may be submitted Departments of Veterans Affairs and previously. immediately after publication of this Housing and Urban Development, and In these instances, the Department NOFA, and must be submitted by 3:00 Independent Agencies Appropriations recognizes that hazards have been p.m. local time (i.e., the time in the Act, 1992 (Pub. L. 102–139, approved addressed or identified; thus, there is no HUD Field Office where the application October 28, 1991; at 105 Stat. 744) (1992 need to conduct a risk assessment. is submitted) on May 30, 1995. This Appropriations Act) set aside (3) Cost. Where a development is deadline is firm as to date and hour. In $25,000,000, of the $2,800,975,000 of eligible to be the subject of a complete the interest of fairness to all applicants, budget authority available for risk assessment, in accordance with the the Department will treat as ineligible modernization of existing public threshold criteria set forth in Section for consideration any application that is housing developments, for the risk II.B. of this NOFA, the HA shall base its received after the deadline. Applicants assessment of lead-based paint (LBP). funding request on a per-unit-to-be- should take this practice into account However, amounts actually available sampled-per-development cost. The per- and make early submission of their from the appropriated amount were unit cost must include costs for applications to avoid any risk of loss of reduced because conversions from collection of dust and soil samples, eligibility brought about by Section 8 (U.S. Housing Act of 1937)- collection of paint chip samples (where unanticipated delays or other delivery- funded section 202 (Housing Act of necessary), administration, laboratory related problems. 1959) direct loan projects to rental analysis of collected paint, dust, and ADDRESSES: Application kits may be assistance-funded section 202 grant soil samples, interpretation of laboratory obtained from HUD Field Offices. projects did not occur at the rate results on samples collected, review of Completed applications are to be anticipated by Congress in the FY 1992 maintenance and management practices, submitted to the Field Office that has Appropriations Act. Reductions were and the development (not the jurisdiction over the HA submitting the made in the FY 1991 carryover balances implementation) of recommendations request for funding. Copies of the to fund FY 1992 programs, as provided for interim controls. Costs associated Department’s LBP risk assessment in the Appropriations Act. The amount with interim controls are not eligible for protocol, which establishes minimum of funds available for LBP risk funding under this NOFA. Funding of requirements that must be used by HAs assessment in FY 1992 was $23,853,455. interim controls must be secured from funded under this NOFA, are available In accordance with the language of that other HA sources (i.e., CIAP, CGP, at cost by calling HUD USER on 1–800– Appropriations Act, where funds operating subsidy, operating reserves, or 245–2691 or (301) 251–5154 (not a toll- awarded totaled less than the amount State/local contributions). Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16561 The cost-per-unit-to-be-sampled may using the same method as in previous Act) (added by the 1992 Appropriations not exceed the amount of $495. Prior fiscal years. Funds will be assigned to Act, 105 Stat. 759), pre-1980 family year funding indicates that a number of Field Offices based on the number of developments within a HA’s inventory HAs were able to complete risk applications submitted that met the may be the subject of a LBP risk assessments at less than this amount eligibility criteria and the amount of assessment. As stated in section (ranging from $250 to $350 per-unit-to- funds requested. The Department 14(a)(3), risk assessments are intended be-sampled, excluding HA expects to have enough money to fund ‘‘to assess the risks of lead-based paint administrative costs). HAs are strongly all eligible applications. In the event poisoning * * * in all projects encouraged to budget prudently for funding requests exceed the amount constructed before 1980 that are, or will these costs. Where this amount is available, awards will be made based on be, occupied by families.’’ Risk exceeded, the HA must submit the date and time applications were assessments are not mandatory; justification of the amount requested, received in the HUD Field Office. HUD however, HAs are strongly encouraged and the Field Office will examine the Field Offices shall date- and time-stamp to conduct them. In undertaking a risk cost reasonableness of such request. each application upon receipt. assessment, a HA shall use a risk The number of units to be sampled, In Fiscal Year 1995, up to $7,835,117 assessment protocol that, at a minimum, which, at a minimum, must be used by will be targeted to public housing follows the Department’s Lead-Based HAs funded under this NOFA, is agencies, and up to $217,418 will be Paint Risk Assessment Protocol. Upon outlined in the table below: targeted to Indian housing authorities in completion of the risk assessment, the the Office of Native American Programs HA must provide a copy of the results Number of units in Number of units for in- (ONAP). As many eligible applications of the risk assessment to the appropriate development specting and testing as possible will be funded. Field Office. The risk assessment must (collecting samples) (5) Remaining funds. In the event that be completed within eighteen (18) 1±4 ...... All. the funds awarded under this NOFA months of HUD’s fund reservation 5±20 ...... 4 units or 50% (which- total less than the amount available, the notification to the HA. ever is greater). remaining amount will be carried over While the scope of the risk assessment 21±75 ...... 10 units or 20% to FY 1996, because the FY 1992 may exceed the contents of the (whichever is great- Appropriations Act specifically targets Department’s protocol, funding shall be er). these funds for the assessment of risks requested based on this protocol. The 76±125 ...... 17. associated with lead-based paint. If goal of the protocol is to enable a HA 126±175 ...... 19. funds are carried over to FY 1996, a to identify lead hazards, so that 176±225 ...... 20. subsequent NOFA for these remaining appropriate interim controls can be 226±300 ...... 21. 301±400 ...... 22. set-aside funds will be published. implemented until random testing and/ 401±500 ...... 23. (6) Section 3 (24 CFR part 135). or full abatement can be undertaken. 501+ ...... 24, plus 1 dwelling for Section 3 of the Housing and Urban Section 14(a)(3) of the 1937 Act requires each additional incre- Development Act of 1968 and the that professional risk assessments ment of 50 units or regulations at 24 CFR part 135 (see June include dust and soil sampling and less. 30, 1994, Interim Rule, 59 FR 33866) are laboratory analysis. The risk assessment applicable to funding awards made protocol has been developed by the The method to be used in determining under this NOFA. One of the purposes Department to ensure compliance with which units are to be included in the of the assistance is to give to the greatest this provision and with certain sample is as follows: extent feasible, and consistent with requirements of the Lead-Based Paint (a) Units cited as having building existing Federal, State, and local laws Poisoning Prevention Act. code violations within the past year; and regulations, job training, HAs are expected to implement the (b) Units determined to be in poor employment, contracting and other interim control recommendations condition; economic opportunities to section 3 resulting from the completed risk (c) Units that contain two or more residents and section 3 business assessment, especially in cases where children between the ages of 6 months concerns. full abatement will not be undertaken and 6 years; within a reasonable time frame (one (d) Units that serve as day-care B. Eligibility and Requirements year). However, actual implementation facilities; and (1) All HAs with pre-1980 family of recommendations that result from the (e) Units prepared for reoccupancy developments are eligible (i.e., both risk assessment conducted is not within the past 3 months. If necessary, large HAs funded under the eligible for funding under this NOFA. add additional units to achieve the Comprehensive Grant Program (CGP) The implementation of resulting required minimum sample number and small HAs funded under the recommendations (e.g., comprehensive specified in the above table. Comprehensive Improvement or random testing, abatement of lead, Note: In addition to the minimum number Assistance Program (CIAP)). Specific interim control measures, and work of units to be sampled, add units housing developments targeted for funding order modifications) may be funded children with elevated blood lead levels. within an application must meet the from other HA sources (i.e., CIAP, CGP, As explained in Section III, requirements set forth in Section II.B. of operating subsidy, operating reserves or Application Content, of this NOFA, an this NOFA. State/local contributions). application must state each (2) HAs, especially smaller ones, are In no instance shall the development number and specify the encouraged to form a consortium for implementation of interim control number of units to be sampled, the purposes of having risk assessments measures satisfy the HA’s obligation amount requested for each conducted. Such a consortium would under the Lead-Based Paint Poisoning development, and the total amount the enable a number of HAs to obtain Prevention Act to abate lead-based HA is requesting. coordinated services for those risk paint hazards; rather, they are interim (4) Distribution of funds. An assessments. measures to be used until testing and/ administrative decision has been made (3) In accordance with section 14(a)(3) or full abatement can be undertaken, as not to assign funds to HUD Field Offices of the U.S. Housing Act of 1937 (1937 appropriate. Similarly, in no instance 16562 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices shall conducting a risk assessment conduct risk assessments required to be Office that has jurisdiction over the satisfy the HA’s obligation under the in place prior to the issuance of an applicant HA. The contents of the Lead-Based Paint Poisoning Prevention insurance policy, under no application are listed below, in Section Act to test for and abate lead-based circumstance may these funds be used III of this NOFA. paint hazards. to pay for the premiums associated with The above-stated deadline is firm as (4) CIAP requirements, as set forth in this insurance. to date and hour. In the interest of 24 CFR part 968, subpart B, and the fairness to all applicants, the CIAP Handbook, 7485.1 REV–4, are D. Selection of Applications Department will treat as ineligible for applicable to HAs funded under this (1) Applications will be selected for consideration any application that is NOFA. These requirements encompass funding only after they have been received after the deadline. Applicants implementation schedules, progress deemed eligible in accordance with the should take this practice into account reports, budget revisions, requests for threshold requirements set forth in and make early submission of their extensions, closeouts, etc. Fund Section II.B. of this NOFA. The materials to avoid any risk of loss of requisitions are to be processed through Department expects to have enough eligibility brought about by the LOCCS/VRS system. money to fund all eligible applications. unanticipated delays or other delivery- (5) HAs must follow the requirements In the event funding requests exceed the related problems. of 24 CFR part 85 for the procurement amount available, awards will be made B. Threshold Requirements of risk assessments. based on a first-come, first-served basis (6) In accepting funding to perform a as indicated by the date- and time-stamp To be considered eligible for funding, risk assessment, HAs must agree to posted by the HUD Field Office when an HA must propose to conduct risk participate, if requested by HUD, in a the HA’s application is submitted. assessments for pre-1980 family subsequent evaluation of the risk (2) Field Offices shall ensure that all developments that: assessment protocol. This evaluation applications (including copies) are date- • Have not previously been the will entail a review of collected and time-stamped immediately upon subject of a risk assessment; or sampling data and the effectiveness of • Have not been tested and abated; or receipt. Field Offices shall notify • recommended interim control Headquarters of funding decisions on Have been tested and results were procedures. July 13, 1995. The Field Office will be positive, but the developments have not been abated or an adequate interim C. Ineligible Costs and Activities responsible for identifying, notifying applicants of, and receiving corrections control plan has not been developed. (1) A specific development targeted of any technical deficiencies in the III. Checklist of Application within an application is not eligible for application, as discussed in Section IV Submission Requirements funding, in accordance with the of this NOFA. The following documents comprise threshold requirements set forth in (3) The Field Office Public Housing the application: Section II.B. of this NOFA, where the Division Director shall make final development has been: (a) OMB Standard Form 424, • funding decisions. Each Field Office Application for Federal Assistance (HAs Tested and abated; or will advise Headquarters, by the date • Tested and the results were shall complete only items 2, 5, 12, 13, specified in Section I.D (2) of this 14, 15, 17 and 18) and SF–424(B); negative; or NOFA, of the number of eligible • Tested, results were positive, and (b) Form HUD–52825, Comprehensive applications, the amounts requested for an adequate interim control plan has Assessment/Program Budget, Part I— each eligible development listed in each been developed; or Summary. The total amount requested • The subject of a risk assessment eligible application, and the total for funding will be identified on this previously. amount requested by an eligible housing form under either account 1410.1, (2) Actual implementation of authority. Headquarters will assign Administration (where HA staff will be recommendations that result from the funds to the Field Offices based on total used and the HA certifies that it has the risk assessment conducted is not eligible amounts requested from applicant HAs capability of, and will be conducting the for funding under this NOFA. The within each Field Offices’ jurisdiction. professional risk assessment; NOTE: a implementation of resulting E. Notification of Awards portion, not to exceed ten percent [10%] recommendations (e.g., comprehensive of the funding requested, may be used The Field Office will notify the HA of or random testing, abatement of lead, for administrative expenses incurred by its funding decision after HUD has interim control measures, and work the HA, including the use of a completed the required congressional order modifications) may be funded consultant to prepare background notification. Reservation and from other HA sources (i.e., CIAP, CGP, materials in support of the risk congressional notification documents operating subsidy, or operating assessment), or account 1430.2, will be prepared by the Field Office. reserves). HAs are expected to Consultant Fees (where the HA will be implement these recommendations, II. Application Process contracting for the professional risk especially those related to interim assessment). A. General Requirements control measures when abatement of (c) Form HUD–52825, Comprehensive lead hazards will not take place within Forms that comprise the application Assessment/Program Budget, Part II— a reasonable time (one year). In no kit are available from HUD Field Supporting Pages. Developments instance shall the implementation of Offices. To be considered for funding, proposed to be the subject of a risk interim control measures satisfy the an original and 2 copies of the assessment are to be identified on this HA’s obligation under the Lead-Based application must be submitted to the form. The applicant must provide the Paint Poisoning Prevention Act to test HUD Field Office that has jurisdiction name; address; project number; total and/or abate lead-based paint hazards. over the applicant HA. An application number of units; number of units to be (3) Funds under this NOFA may not may be submitted immediately upon sampled, in accordance with the be used to purchase insurance including publication of this NOFA, and must be requirements set forth in Section I.A(3) existing-conditions LBP liability submitted before 3:00 p.m., local time, of this NOFA and in the risk assessment insurance. While funds may be used to on May 30, 1995, to the HUD Field protocol; and amount requested for each Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices 16563 development, with supporting the date of HUD’s written notification to will be made available along with the justification, as appropriate. submit or correct the specified items. If applicant disclosure reports, but in no (d) Certification signed by the HA any of items 4–12 are missing and the case for a period less than 3 years. All Executive Director that, at a minimum, HA does not submit them within the 14- reports—both applicant disclosures and the risk assessment protocol to be used day cure period, the application will be updates—will be made available in will be equivalent to the Department’s ineligible for further processing. accordance with the Freedom of protocol. Information Act (5 U.S.C. 552) and V. Other Matters (e) Certification signed by the HA HUD’s implementing regulations at 24 Executive Director that the proposed A. Environmental Review CFR part 15. (See 24 CFR part 12, risk assessment will be completed A finding of no significant impact subpart C, and the notice published in within eighteen (18) months of the date with respect to the environment has the Federal Register on January 16, that funds are awarded and that the HA been made in accordance with HUD 1992 (57 FR 1942), for further agrees to participate, if requested by regulations at 24 CFR part 50, which information on these disclosure HUD, in a subsequent evaluation of the implement section 102(2)(C) of the requirements.) risk assessment protocol, to assess its National Environmental Policy Act of Public notice. HUD will include validity for the identification of lead- 1969. The finding of no significant recipients that receive assistance based paint hazards and effectiveness in impact is available for public inspection pursuant to this NOFA in its Federal addressing those hazards. between 7:30 a.m. and 5:30 p.m. Register notice of recipients of all HUD (f) Certification signed by the HA weekdays in the Office of the Rules assistance awarded on a competitive Executive Director that a copy of the Docket Clerk, Office of the General basis. (See 24 CFR 12.16(b), and the completed risk assessment will be Counsel, Room 10276, Department of notice published in the Federal Register provided to the appropriate HUD Field Housing and Urban Development, 451 on January 16, 1992 (57 FR 1942), for Office upon completion of the Seventh Street, SW., Washington, DC further information on these assessment. 20410–0500. requirements.) (g) Certification that HA staff are E. Section 103 of the HUD Reform Act qualified to conduct LBP risk B. Federalism Executive Order assessments in accordance with the The General Counsel, as the HUD’s regulation implementing protocol, if applicable. Designated Official under section 6(a) of section 103 of the Department of (h) Certification that the HA will Executive Order 12612, Federalism, has Housing and Urban Development comply with the requirements of section determined that the policies contained Reform Act of 1989 (42 U.S.C. 3537a) is 3 of the Housing and Urban in this notice will not have substantial codified as 24 CFR part 4 and applies to Development Act of 1968 (12 U.S.C. direct effects on States or their political the funding competition announced 1701u) and the implementing subdivisions, or the relationship today. The requirements of the rule regulations at 24 CFR part 135. between the Federal government and continue to apply until the (i) Form HUD–50070, Certification for the States, or on the distribution of announcement of the selection of Drug-Free Workplace. power and responsibilities among the successful applicants. (j) Certification for Contracts, Grants, various levels of government. As a HUD employees involved in the Loans and Cooperative Agreements, result, the notice is not subject to review review of applications and in the required of HAs established under State under the Order. The NOFA merely sets making of funding decisions are law that are applying for grants forth funding availability for HAs to restrained by part 4 from providing exceeding $100,000. conduct, at their discretion, risk advance information to any person (k) SF–LLL, Disclosure of Lobbying assessments for lead paint hazards. (other than an authorized employee of Activities, required of HAs established HUD) concerning funding decisions, or under State law only where any funds, C. Family Executive Order from otherwise giving any applicant an other than federally appropriated funds, The General Counsel, as the unfair competitive advantage. Persons will be or have been used to influence Designated Official under Executive who apply for assistance in this Federal workers or Members of Congress Order 12606, The Family, has competition should confine their or their staffs regarding specific grants determined that this notice will likely inquiries to the subject areas permitted or contracts. have a beneficial impact on family under 24 CFR part 4. (l) Form HUD–2880, Applicant/ formation, maintenance, and general Applicants who have questions Recipient Disclosure/Update Report. well-being. Families could benefit from should contact the HUD Office of Ethics this funding action as a result of the (202) 708–3815 (voice/TDD) (this is not IV. Corrections to Deficient identification of immediate and a toll-free number). The Office of Ethics Applications potential lead-based paint hazards; that can provide information of a general Immediately after the submission of identification will ultimately lead to a nature to HUD employees, as well. an application, the appropriate Field safer environment. However, since the However, a HUD employee who has Office will screen the application to impact on the family is not necessarily specific program questions, such as determine whether all items were significant and is beneficial, no further whether particular subject matter can be submitted. If items 1, 2, and 3 listed in review is considered necessary. discussed with persons outside the Section III, Application Content, of this Department, should contact his or her D. Section 102 of the HUD Reform Act; NOFA are missing, the application will Regional or Field Office Counsel, or Documentation and Public Access be considered substantially incomplete Headquarters counsel for the program to Requirements; Applicant/Recipient and, therefore, ineligible for processing. which the question pertains. If the HA fails to submit any of items Disclosures 4–12 listed in Section III of this NOFA, Disclosures. HUD will make available F. Section 112 of the Reform Act or the application contains a technical to the public for five years all applicant Section 13 of the Department of mistake, such as an incorrect signatory, disclosure reports (HUD Form 2880) Housing and Urban Development Act the Field Office will immediately notify submitted in connection with this (42 U.S.C. 3537b), added by section 112 the HA that it has 14 calendar days from NOFA. Update reports (also Form 2880) of the Reform Act, contains two 16564 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Notices provisions dealing with efforts to Development, 451 Seventh Street, S.W., the recipient has made an acceptable influence HUD’s decisions with respect Washington, D.C. 20410–3000. certification regarding lobbying. Under to financial assistance. The first imposes Telephone: (202) 708–3815 (voice/TDD). 24 CFR part 87, applicants, recipients, disclosure requirements on those who (This is not a toll-free number.) Forms and subrecipients of assistance are typically involved in these efforts— necessary for compliance with the rule exceeding $100,000 must certify that no those who pay others to influence the may be obtained from the local HUD federal funds have been or will be spent award of assistance or the taking of a office. on lobbying activities in connection management action by the Department G. Prohibition Against Lobbying with the assistance. The Department has and those who are paid to provide the Activities determined that an IHA established by influence. The second restricts the an Indian Tribe as a result of the The use of funds awarded under this payment of fees to those who are paid exercise of its sovereign power is not NOFA is subject to the disclosure to influence the award of HUD subject to the Byrd Amendment, but an requirements and prohibitions of assistance, if the fees are tied to the IHA established under State law is number of housing units received or are section 319 of the Department of Interior and Related Agencies Appropriations subject to those requirements and based on the amount of assistance prohibitions. received, or if they are contingent upon Act for Fiscal Year 1990 (31 U.S.C. the receipt of assistance. 1352) (the ‘‘Byrd Amendment’’) and the Authority: 42 U.S.C. 1437l and 3535(d). Section 13 has been implemented in implementing regulations at 24 CFR part Dated: March 17, 1995. 24 CFR part 86. If readers are involved 87. These authorities prohibit recipients Ronald J. Morony, in any efforts to influence the of federal contracts, grants, or loans from using appropriated funds for Acting Director, Office of Lead-Based Paint Department in these ways, they are Abatement and Poisoning Prevention. urged to read the final rule, particularly lobbying the Executive or Legislative the examples contained in Appendix A branches of the Federal government in Joseph Shuldiner, of that part. connection with a specific contract, Assistant Secretary for Public and Indian Any questions about the rule should grant, or loan. The prohibition also Housing. be directed to the Office of Ethics, room covers the awarding of contracts, grants, [FR Doc. 95–7833 Filed 3–29–95; 8:45 am] 2158, Department of Housing and Urban cooperative agreements, or loans unless BILLING CODE 4210±33±P i Reader Aids Federal Register Vol. 60, No. 61 Thursday, March 30, 1995 INFORMATION AND ASSISTANCE CFR PARTS AFFECTED DURING MARCH Federal Register At the end of each month, the Office of the Federal Register Index, finding aids & general information 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which Public inspection announcement line 523±5215 lists parts and sections affected by documents published since the Corrections to published documents 523±5237 revision date of each title. Document drafting information 523±3187 Machine readable documents 523±4534 3 CFR 319...... 14202 Proclamations: 354...... 11897 Code of Federal Regulations 6763 (Modified by 372...... 13212 Index, finding aids & general information 523±5227 Proc. 6780) ...... 15845 868...... 16364 Printing schedules 523±3419 6772...... 11609 906...... 13891 916...... 14891 6773...... 12101 917...... 14891 Laws 6774...... 12657 989...... 12403 Public Laws Update Service (numbers, dates, etc.) 523±6641 6775...... 13887 1209...... 13613 Additional information 523±5230 6776...... 13889 1210...... 13515 6777...... 14351 Presidential Documents 1220...... 15027 6778...... 15455 1942...... 11019 6779...... 15843 Executive orders and proclamations 523±5230 Proposed Rules: 6780...... 15845 Public Papers of the Presidents 523±5230 51...... 11918, 13926 Weekly Compilation of Presidential Documents 523±5230 Executive Orders: 58 ...... 11919, 12154, 12156 November 24, 1916 201...... 15257 The United States Government Manual (Revoked in part by 301...... 16067 General information 523±5230 PLO 7121)...... 12886 319...... 13382, 16067 Other Services 12903 (Superseded by 360...... 15260 EO 12955)...... 13365 800...... 15075 Data base and machine readable specifications 523±4534 12954...... 13023 810...... 15075 Guide to Record Retention Requirements 523±3187 12955...... 13365 927...... 14914 Legal staff 523±4534 12956...... 14199 945...... 13080 Privacy Act Compilation 523±3187 12957...... 14615 981...... 15522 Public Laws Update Service (PLUS) 523±6641 Administrative Orders: 1036...... 15523 TDD for the hearing impaired 523±5229 Memorandums: 1050...... 15262 March 2, 1995 ...... 12393 1099...... 12907 ELECTRONIC BULLETIN BOARD Presidential Determinations: 1220...... 15082 No. 95±15 of February 1230...... 13384 Free Electronic Bulletin Board service for Public Law 1940...... 13650, 13928 numbers, Federal Register finding aids, and list of 28, 1995 ...... 12859 documents on public inspection. 202±275±0920 No. 95±16 of March 8 CFR 13, 1995 ...... 15227 FAX-ON-DEMAND No. 95±17 of March 103...... 16039 16, 1995 ...... 16035 204...... 14353 You may access our Fax-On-Demand service. You only need a fax 211...... 14353 machine and there is no charge for the service except for long 5 CFR 217...... 15855 distance telephone charges the user may incur. The list of 235...... 14353, 16042 documents on public inspection and the daily Federal Register’s Ch. LXXVII...... 12396 242...... 16042 table of contents are available using this service. The document 362...... 11017 251...... 14353 numbers are 7050-Public Inspection list and 7051-Table of 532 ...... 12395, 12396, 16363 252...... 14353 Contents list. The public inspection list will be updated 582...... 13027 274a...... 14353 immediately for documents filed on an emergency basis. 731...... 13613 286...... 16039 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 831...... 14201 299...... 14353, 16039 FILE AND NOT THE ACTUAL DOCUMENT. Documents on 842...... 14201 316...... 14353 public inspection may be viewed and copied in our office located 843...... 13034 334...... 14353 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 890...... 16037 Proposed Rules: telephone number is: 301±713±6905 1300...... 12396 100...... 15703 1650...... 13604 242...... 16386 1653...... 13604 FEDERAL REGISTER PAGES AND DATES, MARCH Proposed Rules: 9 CFR Ch. XIV ...... 11057 2...... 13893 11017±11608...... 1 14201±14350...... 16 Ch. LX...... 15700 75...... 14617 11609±11896...... 2 14351±14616...... 17 890...... 15074 77...... 11898 11897±12102...... 3 14617±14890...... 20 91...... 13896 7 CFR 12103±12394...... 6 14891±15026...... 21 92 ...... 13896, 13898, 16043 12395±12658...... 7 15027±15228...... 22 29 ...... 12398, 12399, 12400, 94...... 15856 98...... 16043 12659±12858...... 8 15229±15456...... 23 13515 51...... 11242 101...... 14353 12859±13022...... 9 15457±15648...... 24 56...... 12401, 13780 113 ...... 14353, 14355, 14357 13023±13366...... 10 15649±15854...... 27 58...... 11246 317...... 12883 13367±13612...... 13 15855±16034...... 28 68...... 16364 381...... 12883 13613±13888...... 14 16035±16362...... 29 235...... 15457 Proposed Rules: 13889±14200...... 15 16363±16564...... 30 300...... 14202 1...... 12908, 15524 ii Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Reader Aids 3...... 12908, 15524 12663, 12666, 13618, 13620, 270...... 11890 45...... 15481 92...... 13929 13621, 13623, 13624, 14619, 274...... 11890 58...... 13518 101...... 14392 14897, 15034, 15035, 15037, 91...... 16377 102...... 12159, 12162 15667, 15864, 16366 18 CFR 92...... 13348 104...... 12159 61...... 11254 11...... 15040 200...... 14632, 14816 105...... 12159 71 ...... 11625, 12108, 12667, 141...... 15868 201...... 13834, 13854 112...... 14392 13626, 13900, 14363, 15669, 375...... 15868 202...... 13834 114...... 12162 15867, 16367 381...... 15040 203...... 16032 116...... 12159 73...... 15229 385...... 15868 215...... 14816 160...... 13084 91...... 13627 Proposed Rules: 235...... 14816 161...... 13084 95...... 13035 154...... 13651 236...... 14816 381...... 14668 97 ...... 12109, 12110, 14363, 158...... 13651 243...... 11828 14365 247...... 14816 10 CFR 201...... 13651 121...... 11194, 12034 250...... 13651 248...... 16377 20...... 15649 135...... 11194, 13010 284...... 13651 290...... 11844 50...... 13615 1241...... 11022 570...... 15836, 16377 55...... 13615 1260...... 16045 19 CFR 572...... 16377 61...... 15649 1262...... 12668 10...... 14630, 16046 582...... 16377 73...... 13615 Proposed Rules: 12...... 13352, 14486 583...... 16377 430...... 15015 Ch. I ...... 15525 101...... 14211 594...... 16358 765...... 15015 23...... 14698 123...... 16046 595...... 16358 766...... 15015 27...... 15883 145...... 16046 760...... 11828, 14632 1003...... 15004 29...... 15883 178...... 16046 812...... 14816 Proposed Rules: 33...... 12360 Proposed Rules: 813...... 11626 2...... 15878 39 ...... 11635, 11637, 11942, 122...... 15703 850...... 14816 20...... 13385 11944, 11945, 12714, 14231, 134...... 14705 880...... 14816 50...... 14669 14233, 14235, 14237, 14395, 210...... 16082, 16087 881...... 14816 60...... 15180, 15190 15084, 16388, 16390, 16392, 882...... 14816, 16377 170...... 14670 16395, 16396, 16398 20 CFR 883...... 14816 171...... 14670 71 ...... 11057, 13931, 14238, 884...... 14816 228...... 16368 430...... 15330 14240, 14397, 15723, 15884, 886...... 11844, 14816 237...... 16368 490...... 15020 15885, 15887 887...... 14816 416...... 14215, 16373 119...... 16230 888...... 12594 12 CFR 121 ...... 13008, 13862, 16230 Proposed Rules: 889...... 11828, 16377 205...... 15032 125...... 13862, 16230 200...... 11639 890 ...... 11836, 13515, 16377 226...... 15463 127...... 16230 335...... 14241 900...... 14816 325...... 15858 135...... 13862, 16230 404...... 12166 904...... 14816 401...... 16045 150...... 14701 416...... 12166 905...... 11626, 14816 402...... 16045 15 CFR 21 CFR 908...... 11626 406...... 16045 912...... 14816 543...... 12103 777...... 15669 5...... 15870 913...... 11626 552...... 12103 925...... 12592 173...... 11899 960...... 14816 563...... 15861 2012...... 15229 179...... 12669 3500...... 11194, 14635 184...... 15871 571...... 12103 Proposed Rules: Proposed Rules: 328...... 13590 708a...... 12759 905...... 11947 Chapter IX ...... 14707 450...... 11026, 16376 Proposed Rules: 929...... 16399 100...... 13840, 14890 510...... 11027, 14216 4...... 15705 937...... 16399 888...... 11870 7...... 11924 944...... 14241, 16082 520...... 14216, 14217 10...... 15705 522...... 14217 25 CFR 16 CFR 11...... 15705 558...... 11027, 11028 Proposed Rules: 18...... 15705 305...... 14209, 15198 886...... 15872 Ch. I ...... 14582 31...... 11924 1203...... 15231 1308...... 15956 225...... 15881 Proposed Rules: Proposed Rules: 26 CFR 303...... 16069 24...... 15724 101...... 14918 1 ...... 11028, 11906, 12415, 334...... 15882 231...... 15724 111...... 14918 14636, 15874, 16381 359...... 16069 247...... 15724 170...... 14918 25...... 16382 543...... 13008 305...... 15200 310...... 13014, 14918 Proposed Rules: 552...... 13008 405...... 15725 314...... 13014 1 ...... 11059, 11060, 11195, 571...... 13008 1700...... 12165 22 CFR 11950, 12034, 13213, 13393 722...... 13388 31...... 15526 17 CFR 22...... 16046 13 CFR 1...... 13901 41...... 15872 28 CFR 101...... 15864 200...... 14622, 15673 0...... 11906, 15674 23 CFR 121...... 15477 239...... 11876 31...... 13330 Proposed Rules: 240...... 14366 658...... 15212 40...... 13902 108...... 15525 270 ...... 11876, 11887, 14622 635...... 15478 345...... 15826 120...... 11941 274...... 11876 1313...... 15479 545...... 15826 122...... 11941 400...... 11022 401...... 11022 24 CFR 29 CFR 14 CFR 402...... 11022, 12825 Appendix A to Subtitle 500...... 15232 11...... 12034, 12108 403...... 11022 A...... 16377 825...... 16382 25...... 11194 404...... 11022 Appendix B to Subtitle 1910...... 11194, 13782 39 ...... 11020, 11611, 11613, 405...... 11022 B...... 16377 1915 ...... 11194, 13782, 14218 11615, 11617, 11619, 11621, 450...... 11022 15...... 11901 1917...... 13782 11623, 12406, 12407, 12408, Proposed Rules: 25...... 13834 1918...... 13782 12410, 12411, 12413, 12414, 239...... 11890 44...... 15481 1926...... 11194 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Reader Aids iii 1952...... 12416, 12417 Proposed Rules: 61...... 13938 4...... 15115 2509...... 12328 Ch. VI...... 15737 63 ...... 12723, 13088, 13664, 5...... 15115 2619...... 13904 16090 10...... 13570 36 CFR 2676...... 13904 68...... 13526 12...... 13570 Proposed Rules: 7...... 13629 70 ...... 12521, 13088, 13683, 67...... 12188 1230...... 13908 14921, 15105 270...... 16354 47 CFR 1910...... 15263 Proposed Rules: 81...... 12520 1915...... 15263 7...... 13662 82...... 14611 1...... 13636, 16055 85...... 12185 2 ...... 13071, 15248, 15686 1926...... 15263, 15888 37 CFR 1952...... 12488 123...... 14588 5...... 13636 2627...... 16026 1...... 14488 148...... 11702 15...... 13071, 16055 202...... 15874 180 ...... 13938, 13939, 13941, 22...... 15490 30 CFR 15109, 15111, 15113, 16111 24...... 13915 38 CFR 914...... 13038 185...... 15113 32...... 12137 936...... 13040, 16047 3...... 12886, 14222 186...... 15113 36...... 12137 194...... 11060 61...... 13637 943...... 15675 39 CFR 944...... 13367, 15680 261...... 12525 64...... 15495 20...... 14370 950...... 14368 266...... 11702 65...... 12137 3001...... 12113, 12116 268...... 11702 73 ...... 11909, 11910, 11911, Proposed Rules: Proposed Rules: 271...... 11702, 12525 13918, 15255, 15496, 15688 Ch. II...... 14707, 15888 20...... 14878 300 ...... 13944, 15273, 15737 74...... 14224 Ch. VII...... 13858 111...... 12490 302...... 12525 76...... 14373 254...... 13652 761...... 13095 80...... 15686 756...... 13086 40 CFR 90...... 15248, 15490 773...... 13087 42 CFR 9...... 12670, 15366 97...... 15686 904...... 14399 52 ...... 12121, 12123, 12125, 410...... 14223 913...... 15726 Proposed Rules: 12438, 12442, 12446, 12451, 485...... 11632 925...... 11640, 15728 Ch. I...... 13102, 15527, 15739 12453, 12459, 12685, 12688, 486...... 11632 926...... 13932 1...... 13396, 15275 12691, 12695, 12700, 13042, Proposed Rules: 935...... 14400, 14401 2 ...... 11644, 13687, 15116 13631, 13634, 13908, 14899, 65a...... 12525 944...... 13935, 15729 15...... 15116 15053, 15056, 15061, 15062, 43 CFR 63...... 11644, 15118 31 CFR 15233, 15235, 15241, 15483, 64...... 12529 15875 2720...... 12710 351...... 15430 73 ...... 12530, 12724, 12725, 58...... 11907 Public Land Orders: 13947, 15275 356...... 13906 61...... 13912 7100...... 12592 500...... 12885 63 ...... 11029, 12670, 13045 7117...... 11045 48 CFR Proposed Rules: 70 ...... 12128, 12478, 13046, 7118...... 11046 Ch. 99 ...... 12711 1...... 15705, 15730 15066 7119...... 11633 2 ...... 12366, 12384, 13397 7120...... 11633 32 CFR 81 ...... 12453, 12459, 13368, 3...... 12366, 13397 13634 7121...... 12886 4...... 12366, 12384 199...... 12419 82...... 14608 7122...... 12887 5 ...... 12366, 12384, 13397 1636...... 13907 86...... 15242 7123...... 12887 6...... 12366, 13397 1690...... 15682 122...... 15366 7124...... 13915 7...... 12384, 13397 Proposed Rules: 123...... 15366 7125...... 15248 8...... 12366, 12384 199 ...... 12717, 14403, 14919 131...... 15366 7126...... 16383 9 ...... 12366, 12384, 13397 209...... 11642 132...... 15366 7127...... 16384 10...... 13397 311...... 13936 180 ...... 11029, 11032, 12702, 7128...... 16384 11...... 13397 855...... 15086 12703, 12704, 12705, 12707, Proposed Rules: 12...... 12384, 13397 13914, 15069, 15486, 15488, 3100...... 16424 13...... 12366, 13397 33 CFR 15683 14...... 12384, 13397 44 CFR Ch. I ...... 16423 185...... 16052 15 ...... 12366, 12384, 13397 100 ...... 11629, 15049, 15052 186...... 15683, 16052 64...... 15071 16 ...... 12366, 12384, 13397 110...... 14220, 15052 281 ...... 12630, 12709, 14334, 65...... 13049 22 ...... 12366, 13397, 14377 117...... 13629, 14221 14371, 14372 67...... 13050 23...... 12366, 13397 143...... 13550 282...... 12630, 14334 152...... 11236 25...... 12366 155...... 13318 300 ...... 14641, 14645, 15247, 354...... 15628 27...... 12366 157...... 13318 15489, 16053 Proposed Rules: 28...... 12366 165 ...... 12112, 15049, 15053, 372...... 13047 61...... 13945 29...... 12366 15736 704...... 16298 65...... 14708 32...... 12366, 12384 334...... 15232 720...... 16298 67...... 13096, 14710 36...... 12366, 13397 Proposed Rules: 721 ...... 11033, 16298, 16311 206...... 13945 41...... 12366 117 ...... 12178, 13393, 13395, 723...... 16316, 16336 42...... 12366, 13397 45 CFR 13653 799...... 14910 43...... 12366 162...... 15734 Proposed Rules: 2543...... 13055 44...... 12366, 13397 165 ...... 14242, 14243, 14245, Ch. I...... 15264, 16088 Proposed Rules: 45...... 12366, 12384 14246, 15101, 15102, 15736 22...... 15208 1180...... 12186 46...... 12366, 13397 320...... 13654 50...... 13663 47...... 12366, 13397 46 CFR 325...... 13654 51...... 12492 49...... 12366, 13397 333...... 13654 52 ...... 12180, 12184, 12185, 2...... 13550 52 ...... 12366, 12384, 13397, 402...... 11643 12519, 12520, 12721, 12722, 30...... 13318 14377 13937, 14708, 14920, 15104, 32...... 13318 53 ...... 12366, 12384, 13397 34 CFR 15269, 15270, 15271, 15527, 70...... 13318 209...... 13073 3...... 11907 15891 90...... 13318 219...... 13074 75...... 12096, 12648 53...... 13663 172...... 13318 223...... 13075 280...... 14864 58...... 12492 Proposed Rules: 235...... 13076, 15689 607...... 15446 60...... 13937 Ch. I ...... 16423 252...... 13073, 13075 iv Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Reader Aids 701...... 11911, 12825 9904...... 12725 673...... 11054, 12825 703...... 11911, 12825 675 ...... 11915, 12149, 12487, 715...... 11911, 12825 49 CFR 13780, 14390, 14912, 15521 724...... 11911 1 ...... 11046, 13639, 14225, 676 ...... 11916, 12152, 13780 731...... 11911, 12825 15877 681...... 13380 752...... 11911, 12825 107...... 12139 Proposed Rules: 927...... 11812 192...... 14379, 14646 14...... 15277 952...... 11812 195...... 14646 970...... 11812 218...... 11047 17 ...... 11768, 12531, 12728, 1517...... 12712 382...... 13369 12730, 13105, 13397, 13950, 1604...... 16056 391...... 13369 14253, 14410, 15280, 15281 1652...... 16056 393...... 12146 18...... 14408 1801...... 16058 501...... 15503 20...... 14194, 15642 1804...... 16058 564...... 14226 222...... 11951, 14410 1805...... 14378 571 ...... 11913, 13216, 13286, 227...... 14253 1806...... 16058 13297, 13639, 15504, 15690 1808...... 16058 640...... 15743 575...... 11913 1813...... 16058 649...... 14261, 15893 582...... 15509 1815...... 16058, 16063 650...... 15893 583...... 14228 1816...... 16058 651...... 15893 653...... 12296 1819...... 15497 663...... 11062 654...... 12296, 12298 1832...... 16058 672...... 13106 661...... 14174 1836...... 16058 675...... 13106 1837...... 11634, 16063 1312...... 13077 1840...... 16058 1314...... 13077 1841...... 16058 Proposed Rules: 1842...... 16058 Ch. V ...... 14717, 15119 1845...... 16058 192...... 14714 1851...... 16058 195...... 14714 1852 ...... 15497, 16058, 16063 234...... 11649 1870...... 16058 393...... 13306 2801...... 16065 564...... 14247 9903...... 16534 571 ...... 12192, 13688, 14247 9904...... 16534 575...... 15529 Proposed Rules: 661...... 14178 Ch. I ...... 11198 800...... 13948 1...... 14340, 15450 830...... 13948 6...... 14346 831...... 13948 7...... 14340 50 CFR 12...... 15220 16...... 14346 17 ...... 12483, 12887, 15693 17...... 14340 204...... 11050 32...... 14156, 15450 227...... 15512 33...... 15450 280...... 14381 37...... 14340 285...... 14381 45 ...... 12530, 15528, 15740 301...... 14651 49...... 14340 611...... 13780 52 ...... 12530, 14156, 14340, 625...... 14230 14346, 15220, 15450, 15528, 646...... 12592 15740 651...... 13078 215...... 15528 654...... 13918 245...... 15276 663...... 13377 252...... 15276 672 ...... 11915, 12149, 12152, 933...... 11646 13079, 14390, 14912, 15072, 970...... 11646 15521