Pages 42425±42766 Vol. 60 8±16±95 No. 158 federal register August 16,1995 Wednesday this issue. Atlanta, GA,seeannouncementontheinsidecoverof For informationonbriefingsinWashington,DCand Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995
SUBSCRIPTIONS AND COPIES
PUBLIC Subscriptions: Paper or fiche 202–512–1800 FEDERAL REGISTER Published daily, Monday through Friday, Assistance with public subscriptions 512–1806 (not published on Saturdays, Sundays, or on official holidays), by Online: the Office of the Federal Register, National Archives and Records Telnet swais.access.gpo.gov, login as newuser 2 III Contents Federal Register Vol. 60, No. 158 Wednesday, August 16, 1995 Agriculture Department Defense Department See Animal and Plant Health Inspection Service RULES See Forest Service Federal Acquisition Regulation (FAR): See Grain Inspection, Packers and Stockyards Contract award implementation, 42652–42657 Administration Contractor employees; entertainment, gift, and recreation costs, 42662–42663 Animal and Plant Health Inspection Service Contractor overhead certification; indirect costs, 42663– PROPOSED RULES 42664 Phytosanitary export certification regulations; revision, Contract value threshold; unallowable indirect costs, 42472–42479 penalties, 42657–42659 NOTICES Cost principle provisions; implementation, 42659–42662 Environmental statements; availability, etc.: Miscellaneous amendments, 42648–42649 Genetically engineered organisms; field test permits— Procurement integrity and miscellaneous amendments; Tobacco mosaic virus, etc., 42498 technical corrections, 42664–42665 Records examination authority; consolidation and Arts and Humanities, National Foundation revision, 42649–42652 See National Foundation on the Arts and the Humanities Drug Enforcement Administration Children and Families Administration RULES NOTICES Domestic Chemical Diversion Control Act of 1993; Grants and cooperative agreements; availability, etc.: implementation: Welfare reform demonstration projects, 42574–42576 List I chemicals; manufacturers, distributors, importers, Medicaid: and exporters; registration Welfare reform and combined welfare reform/Medicaid Correction, 42436 demonstration project proposals, 42576–42577 Education Department Commerce Department PROPOSED RULES See Foreign-Trade Zones Board Special education and rehabilitative services: See International Trade Administration American Indians with disabilities; vocational See National Oceanic and Atmospheric Administration rehabilitation service projects NOTICES Meeting, 42490–42491 Agency information collection activities under OMB review, 42499–42500 Employment and Training Administration Committee for the Implementation of Textile Agreements NOTICES NOTICES Adjustment assistance: Cotton, wool, and man-made textiles: Gould Shawmut, 42588 China, 42547 Heublein, Inc., 42588–42589 Macau, 42548 Adjustment assistance and NAFTA transitional adjustment Malaysia, 42548–42549 assistance: Poland, 42549 Rockwell Graphics Systems of Rockwell et al., 42589– Thailand, 42549–42550 42590 Textile and apparel categories: Correlation with U.S. Harmonized Tariff Schedule, 42550 Energy Department See Energy Efficiency and Renewable Energy Office Comptroller of the Currency See Federal Energy Regulatory Commission NOTICES See Southwestern Power Administration Agency information collection activities under OMB See Western Area Power Administration review, 42643 NOTICES Electricity export and import authorizations, permits, etc.: Congressional Budget Office Arizona Public Service Co., 42552–42553 NOTICES Grant and cooperative agreement awards: Balanced Budget and Emergency Deficit Control Auburn University, 42550–42551 Reaffirmation Act (Gramm-Rudman-Hollings): Florida Solar Energy Center, 42551 Sequestration update report for 1996 FY transmittal to General Electric Co., 42551 Congress and OMB, 42499 Institute of Paper Science and Technology, 42551–42552 Customs Service Energy Efficiency and Renewable Energy Office RULES NOTICES Customs bonds: Consumer product test procedures; waiver petitions: Duty-free stores; CFR correction, 42431 Miele Appliance Inc., 42553–42556 IV Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Contents Environmental Protection Agency Federal Election Commission RULES RULES Pesticides; tolerances in food, animal feeds, and raw Presidential primary and general election candidates; agricultural commodities: public financing Bacillus thuringiensis CryIA(b) delta-endotoxin, etc., Effective date, 42429 42443–42446 Definitions and interpretations, etc.— Federal Emergency Management Agency Summer squash, 42447–42449 RULES Deltamethrin, 42453–42455 Flood insurance; communities eligible for sale: Dimethoate, 42446–42447 Illinois et al., 42462–42464 NOTICES Flutolanil, 42456–42458 Meetings: Hexazinone, 42460–42462 National Fire Academy Board of Visitors, 42568 Occlusion bodies of Granulosis Virus of Cydia pomenella, 42449–42450 Federal Energy Regulatory Commission Phosphinothricin acetyltransferase, 42450–42453 NOTICES Sodium propionate, etc., 42458–42460 Electric rate and corporate regulation filings: PROPOSED RULES Texas Utilities Electric Co. et al., 42556–42557 Air quality implementation plans; approval and Environmental statements; availability, etc.: promulgation; various States: Kittitas Reclamation District, 42556 Illinois, 42491–42494 Natural gas certificate filings: Pesticides; tolerances in food, animal feeds, and raw Texas Eastern Transmission Corp. et al., 42557–42558 agricultural commodities: Preliminary permits surrender: Tralomethrin, 42494–42496 Hildebrand Hydro Associates, 42558 NOTICES Point Marion Hydro Associates, 42558–42559 Meetings: Border Environment Cooperation Commission, 42563– Federal Maritime Commission 42564 NOTICES Pesticide registration, cancellation, etc.: Freight forwarder licenses: American Cyanamid Co., 42565–42566 Abroad Cargo Service, Inc., et al., 42568 Rohm & Haas Co., 42566 Pesticides; experimental use permits, etc.: Federal Reserve System AgrEvo USA Co. et al., 42564–42565 NOTICES Waste Isolation Pilot Plant, NM: Meetings; Sunshine Act, 42644 Energy Department compliance certification application Applications, hearings, determinations, etc.: availability, 42566–42567 First Union Corp. et al., 42568–42569 National Westminster Bank PLC et al., 42569 Executive Office of the President Federal Trade Commission NOTICES PROPOSED RULES Meetings: Practice and procedure rules: Personal Motor Vehicle Greenhouse Gas Reductions Existing competition and consumer protection orders Advisory Committee, 42567–42568 duration, 42481–42482 NOTICES Competition and consumer protection orders duration; Federal Aviation Administration policy statement, 42569–42574 RULES Class E airspace, 42429–42431 Fish and Wildlife Service PROPOSED RULES PROPOSED RULES Air carrier certification and operations: Hunting and fishing: Advanced qualification program (SFAR No. 58); Refuge-specific hunting and fishing regulations, 42668– termination date, 42764–42766 42677 Airworthiness directives: NOTICES Beech, 42479–42481 Endangered and threatened species permit applications, NOTICES 42585–42586 Environmental statements; availability, etc.: Wide Area Augmentation System (WAAS), 42639–42640 Food and Drug Administration Passenger facility charges; applications, etc.: RULES Dubuque Regional Airport, IA, 42640–42641 Human drugs: Topical otic products (OTC) for prevention of swimmer’s ear, etc.; final monograph Federal Deposit Insurance Corporation Partial stay, 42435–42436 RULES NOTICES Assessments: Medical devices: Bank Insurance Fund; rate schedule establishment, Mammography facilities— 42680–42741 Educational requirements, training, and assisting small Savings Association Insurance Fund; rate schedule business in meeting requirements; workshop, retention, 42741–42752 42577–42578 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Contents V Medical devices; premarket approval: Interior Department Femidom Female Condom; correction, 42577 See Fish and Wildlife Service Meetings: See Land Management Bureau Over-the-counter drug labeling issues, 42578–42581 See National Park Service Prescription drugs; direct-to-consumer promotion; See Surface Mining Reclamation and Enforcement Office hearing, 42581–42584 International Trade Administration Foreign-Trade Zones Board NOTICES NOTICES Antidumping: Applications, hearings, determinations, etc.: Chrome-plated lug nuts from— California China, 42504–42507 Silicon Valley Solutions, Inc.; personal computers, Corrosion-resistant carbon steel flat products from— 42500 Australia, 42507–42511 Louisiana Canada, 42511–42516 BP Exploration & Oil Inc.; oil refinery complex; Heavy forged hand tools, finished or unfinished, with or correction, 42645 without handles, from— Missouri; correction, 42645 China, 42516–42519 Forest Service Helical spring lock washers from— China, 42519–42521 NOTICES Honey from— Meetings: China, 42521–42527 Southwest Oregon Provincial Interagency Executive Light-scattering instruments and parts from— Committee Advisory Committee, 42498–42499 Japan, 42527–42529 General Services Administration Stainless steel hollow products from— RULES Sweden, 42529–42530 Federal Acquisition Regulation (FAR): Antidumping and countervailing duties: Contract award implementation, 42652–42657 Administrative review requests, 42500–42504 Contractor employees; entertainment, gift, and recreation Countervailing duties: costs, 42662–42663 Apparel from— Contractor overhead certification; indirect costs, 42663– Argentina, 42530–42532 42664 Ball bearings and parts from— Contract value threshold; unallowable indirect costs, Thailand, 42532–42535 penalties, 42657–42659 Roses, miniature carnations, and other cut flowers from— Cost principle provisions; implementation, 42659–42662 Colombia, 42535–42545 Miscellaneous amendments, 42648–42649 Procurement integrity and miscellaneous amendments; International Trade Commission technical corrections, 42664–42665 NOTICES Records examination authority; consolidation and Import investigations: revision, 42649–42652 Clog style articles of footwear, 42587 Grain Inspection, Packers and Stockyards Administration Interstate Commerce Commission RULES NOTICES Grain weighing equipment and related grain handling Railroad services abandonment: systems; official performance and procedural CSX Transportation, Inc., 42587–42588 requirements Effective date, 42429 Justice Department Health and Human Services Department See Drug Enforcement Administration See Children and Families Administration See Food and Drug Administration Labor Department See Substance Abuse and Mental Health Services See Employment and Training Administration Administration See Occupational Safety and Health Administration NOTICES Housing and Urban Development Department Meetings: RULES President’s Committee on International Labor Interstate land sales registration program; State Organization, 42588 certifications: Georgia; withdrawn, 42436–42437 Land Management Bureau Mortgage and loan insurance programs: Home equity conversion mortgage insurance NOTICES demonstration; use of direct endorsement program, Resource management plans, etc.: 42754–42762 Grand Resource Area, UT, 42586 NOTICES Agency information collection activities under OMB Maritime Administration review: RULES Proposed agency information collection activities; Surplus Federal real property utilization and disposal; port comment request, 42585 facility development or operation, 42466–42469 VI Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Contents National Aeronautics and Space Administration Cody, Steven, 42632–42633 RULES Hollingsworth, Maria, 42633–42635 Federal Acquisition Regulation (FAR): Contract award implementation, 42652–42657 Occupational Safety and Health Administration Contractor employees; entertainment, gift, and recreation NOTICES costs, 42662–42663 Nationally recognized testing laboratories, etc.: Contractor overhead certification; indirect costs, 42663– Factory Mutual Research Corp., 42590–42594 42664 TUV Rheinland of North America, Inc., 42594–42596 Contract value threshold; unallowable indirect costs, penalties, 42657–42659 Personnel Management Office Cost principle provisions; implementation, 42659–42662 RULES Miscellaneous amendments, 42648–42649 Child support and/or alimony; garnishment orders; Procurement integrity and miscellaneous amendments; processing technical corrections, 42664–42665 Correction, 42425–42429 Records examination authority; consolidation and revision, 42649–42652 Public Health Service National Foundation on the Arts and the Humanities See Food and Drug Administration See Substance Abuse and Mental Health Services RULES Administration Federal Council on Arts and Humanities: Arts and Artifacts Indemnity Act; implementation, 42464–42466 Railroad Retirement Board NOTICES PROPOSED RULES Meetings: Railroad Retirement Act: Humanities Panel, 42596 Annuities reduction and non-payment by reason of work, 42482–42490 National Highway Traffic Safety Administration PROPOSED RULES Research and Special Programs Administration Consumer information: NOTICES Uniform tire quality grading standards; comment period Hazardous materials: extension, 42496–42497 Applications; exemptions, renewals, etc., 42641–42643 Lamps, Reflective Devices, and Associated Equipment Negotiated Rulemaking Committee: Securities and Exchange Commission Meetings, 42496 NOTICES Self-regulatory organizations; proposed rule changes: National Oceanic and Atmospheric Administration American Stock Exchange, Inc., 42635–42636 RULES Chicago Board Options Exchange, Inc., 42636–42637 Fishery conservation and management: Philadelphia Stock Exchange, Inc., 42637–42639 North Pacific fisheries research plan, 42470–42471 Applications, hearings, determinations, etc.: Ocean salmon off coasts of Washington, Oregon, and Tridex Corp., 42639 California, 42469–42470 Tuna, Atlantic bluefin fisheries, 42469 Social Security Administration NOTICES RULES Meetings: Social security benefits: Monterey Bay National Marine Sanctuary Advisory Wage reports and pension information, 42431–42435 Council, 42545–42546 Permits: Marine mammals, 42546–42547 Southwestern Power Administration NOTICES National Park Service Integrated System power rates; extension, 42559–42560 NOTICES Environmental statements; availability, etc.: Substance Abuse and Mental Health Services California/Pony Express National Historic Trails, IA, et Administration al., 42587 NOTICES Meetings: Nuclear Regulatory Commission Substance Abuse Treatment Center National Advisory NOTICES Council, 42584–42585 Meetings: Reactor Safeguards Advisory Committee, 42596–42597 Surface Mining Reclamation and Enforcement Office Operating licenses, amendments; no significant hazards RULES considerations; biweekly notices, 42597–42622 Permanent program and abandoned mine land reclamation Probabilistic risk assessment methods; use in nuclear plan submissions: regulatory activities; policy statement, 42622–42629 West Virginia, 42437–42443 Reports; availability, etc: NOTICES Electronic personnel dosimeters; performance testing, Agency information collection activities under OMB 42629–42630 review: Applications, hearings, determinations, etc.: Proposed agency information collection activities; Carlisle Hospital, 42630–42632 comment request, 42586–42587 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Contents VII Textile Agreements Implementation Committee Part III See Committee for the Implementation of Textile Interior Department, Fish and Wildlife Service, 42668– Agreements 42677 Transportation Department Part IV See Federal Aviation Administration Federal Deposit Insurance Corporation, 42680–42752 See Maritime Administration See National Highway Traffic Safety Administration Part V See Research and Special Programs Administration Housing and Urban Development Department, 42754–42762 Treasury Department Part VI See Comptroller of the Currency Transportation Department, Federal Aviation See Customs Service Administration, 42764–42766 Western Area Power Administration NOTICES Reader Aids Power rate adjustments: Additional information, including a list of public laws, Central Valley Project, CA, 42560–42563 telephone numbers, and finding aids, appears in the Reader Aids section at the end of this issue. Separate Parts In This Issue Electronic Bulletin Board Part II Free Electronic Bulletin Board service for Public Law Defense Department, General Services Administration, numbers, Federal Register finding aids, and a list of National Aeronautics and Space Administration, documents on public inspection is available on 202–275– 42648–42665 1538 or 275–0920. VIII Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Contents 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 45 CFR 581...... 42425 1160...... 42464 7 CFR 46 CFR 802...... 42429 387...... 42466 Proposed Rules: 48 CFR 353...... 42472 Ch. 1 ...... 42648 354...... 42472 1 (2 documents) ...... 42649, 11 CFR 42664 106...... 42429 2...... 42652 9002...... 42429 4 (2 documents) ...... 42649, 9003...... 42429 42652 9004...... 42429 5...... 42652 9006...... 42429 6 (2 documents) ...... 42652, 9007...... 42429 42664 9008...... 42429 14 (2 documents) ...... 42649, 9032...... 42429 42652 9033...... 42429 15 (2 documents) ...... 42649, 9034...... 42429 42652 9036...... 42429 17...... 42652 9037...... 42429 19...... 42652 9038...... 42429 25 (2 documents) ...... 42649, 9039...... 42429 42652 12 CFR 31 (3 documents) ...... 42657, 327 (2 documents) ...... 42680, 42659, 42662 42741 36...... 42652 37...... 42659 14 CFR 42 (3 documents) ...... 42657, 71 (3 documents) ...... 42429, 42659, 42663 42430, 42431 50...... 42649 Proposed Rules: 51...... 42652 39...... 42479 52 (5 documents) ...... 42649, 61...... 42764 42652, 42657, 42659, 42663 63...... 42764 49 CFR 65...... 42764 108...... 42764 Proposed Rules: 121...... 42764 571...... 42496 135...... 42764 575...... 42496 16 CFR 50 CFR Proposed Rules: 285...... 42469 661...... 42469 3...... 42481 677...... 42470 19 CFR Proposed Rules: 19...... 42431 32...... 42668 20 CFR 404...... 42431 422...... 42431 Proposed Rules: 230...... 42482 21 CFR 310...... 42435 1309...... 42436 1310...... 42436 24 CFR 203...... 42754 206...... 42754 1710...... 42436 30 CFR 948...... 42437 34 CFR Proposed Rules: 371...... 42490 40 CFR 180 (8 documents) ...... 42443, 42446, 42447, 42449, 42450, 42453, 42456, 42458 185 (4 documents) ...... 42453, 42456, 42458, 42460, 186...... 42460 Proposed Rules: 52...... 42491 180...... 42494 44 CFR 64...... 42462 42425 Rules and Regulations Federal Register Vol. 60, No. 158 Wednesday, August 16, 1995 This section of the FEDERAL REGISTER Office of the Deputy Secretary Consumer Service, 3101 Park Center Drive, contains regulatory documents having general Office of the Under Secretaries Room 623, Alexandria, VA 22302, (703) applicability and legal effect, most of which Office of the Assistant Secretaries 305–2374 are keyed to and codified in the Code of Director, Executive Resources and Services Marketing and Regulatory Programs Federal Regulations, which is published under Division, Office of Personnel, Room 334 50 titles pursuant to 44 U.S.C. 1510. W—Administration Bldg., 14th St. and Agricultural Marketing Service (Except for Independence Ave., SW., Washington, DC employees of the Milk Marketing The Code of Federal Regulations is sold by 20250, (202) 720–6047 Administration) the Superintendent of Documents. Prices of Office of Inspector General Chief, Employee Relations Branch, new books are listed in the first FEDERAL Agricultural Marketing Service, PED, ERB, REGISTER issue of each week. Chief Counsel to the Inspector General, Room 1745—South Bldg., P.O. Box 96456, Office of Inspector General, Room 27 E— Washington, DC 20090–6456, (202) 720– Administration Bldg., 14th St. and 5721 Independence Ave., SW., Washington, DC OFFICE OF PERSONNEL 20250, (202) 720–9110 Agricultural Marketing Service MANAGEMENT Administration Milk Marketing Employees 5 CFR Part 581 Board of Contract Appeals Personnel Management Specialist, Chief Financial Officer Agricultural Marketing Service, DA, Room RIN 3206±AG49 Judicial Officer 2754—South Bldg., P.O. Box 96456, Office of Administrative Law Judges Washington, DC 20090–6456, (202) 720– Processing Garnishment Order for Office of Budget and Program Analysis 7258 Child Support and/or Alimony Office of Civil Rights Enforcement Office of Communications Animal and Plant Health Inspection Service AGENCY: Office of Personnel Office of Congressional and Grain Inspection, Packers and Stockyards Management. Intergovernmental Relations Administration ACTION: Final rule; correction. Office of the General Counsel Office of Information and Resources Chief, Personnel Branch, Animal and Plant Health Inspection Service, HRD, HRO, SUMMARY: This document contains Management Office of Operations Butler Square West, 5th Floor, 100 N. 6th corrections to the final regulations St., Minneapolis, MN 55403, (612) 370– which were published on Wednesday, Office of Personnel Office of Small and Disadvantaged Business 2107 January 25, 1995, (60 FR 5044). The Utilization Food Safety regulations updated the list of agents Chief, Employment and Compensation Food Safety and Inspection Service designated to accept service of process Branch, Office of Personnel—POD, Room in garnishment actions. Chief, Classification and Organization 31 W—Administration Bldg., 14th St. and Branch, Personnel Division, Food Safety EFFECTIVE DATE: February 24, 1995. Independence Ave., SW., Washington, DC and Inspection Service, Room 3821—South 20250–9630, (202) 720–7797 FOR FURTHER INFORMATION CONTACT: Bldg., 14th St. and Independence Ave., Murray M. Meeker, Attorney, Office of Chief Economist SW., Washington, DC 20250–3700, (202) the General Counsel, (202) 606–1980. Office of Risk Assessment and Cost-Benefit 720–6287 SUPPLEMENTARY INFORMATION: On Analysis World Agricultural Outlook Rural Economic and Community Board January 25, 1995, OPM published a list Development of agents designated to receive legal Chief, Economics and Statistics Operations Rural Housing and Community Development Branch, Human Resources Division, Service process in garnishment actions where Agricultural Research Service, Room the indebtedness was based on child Rural Business and Cooperative Development 1424—South Bldg., 14th St. and Service support and/or alimony, and on April Independence Ave., SW., Washington, DC 14, 1995, OPM published corrections to 20250, (202) 720–7657 Chief, Employee Information Systems the list. Subsequent to the publication of Branch, Human Relations Division, Rural Farm and Foreign Agricultural Housing and Community Development the corrections, OPM was notified that ServicesI25Consolidated Farm Service Service, 501 School St., SW., Washington, additional corrections needed to be Agency DC 20250, (202) 245–5573 made. This amendment is in Foreign Agricultural Service Rural Utilities Service compliance with these requests. Chief, Employee and Labor Relations Branch, Chief, Rural Utilities Service, Personnel Human Resources Division, Consolidated Correction Operations Branch, Human Relations Farm Service Agency, Room 6732—South Division, Rural Housing and Community In rule document 95–1781 beginning Bldg., P.O. Box 2415, Washignton, DC 20013, (202) 720–5964 Development Service, Room 4031—South on page 5044 in the issue of Wednesday, Bldg., 14th St. and Independence Ave., January 25, 1995, make the following Federal Crop Insurance Corporation SW., Washington, DC 20250–1382, (202) corrections: Chief, Labor Relations Branch, Federal Crop 720–1382. Appendix A to Part 581—List of Agents Insurance Corporation, Consolidated Farm Natural Resources and Environment Designated to Accept Legal Process Service Agency, Room 6732—South Bldg., 14th St. and Independence Ave., SW., Forest Service 1. On page 5044, in the second Washington, DC 20250, (202) 720–5964 (agents are listed below by subordinate units) column, under the heading ‘‘Department Food, Nutrition, and Consumer Services Natural Resources Conservation Service of Agriculture,’’ the designated agent Food and Consumer Service Director, Employee Relations Branch, Human listing is corrected as follows: Senior Employee Relations Specialist, Resources Management Division, Natural Office of the Secretary Employee Relations Division, Food and Resources Conservation Service, Room 42426 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 6205—South Bldg., P.O. Box 2890, Colorado Santa Fe—Forest Supervisor, 1220 St. Francis Washington, DC 20250, (202) 720–4137 Arapaho and Roosevelt—Forest Supervisor, Dr., Sanata Fe, NM 87504, (505) 988–6940 Research, Education, and Economics 240 W. Prospect, Fort Collins, CO, (303) Region 4 Agricultural Research Service 498–1100 Regional Forester, Regional Officer, Federal Grand Mesa, Uncompahgre, and Gunnison— Cooperative State Research, Education, and Bldg., 324 25th St., Ogden, UT 84401, (801) Forest Supervisor, 2250 Highway 50, Delta, Extension Service 625–5298 CO 81416, (303) 874–7691 National Agricultural Statistics Service Pike and San Isabel—Forest Supervisor, 1920 Idaho Economic Research Service Valley Dr., Pueblo, CO 81008, (719) 545– Boise—Forest Supervisor, 1750 Front Street, Chief, Personnel Operations Branch, 8737 Boise, ID 83702, (208) 364–4100 Agricultural Research Service, Personnel Rio Grande—Forest Supervisor, 1803 West Caribou—Forest Supervisor, 250 S. 4th Ave., Division—POB, 6305 Ivy Lane, Room 301, Highway 160, Monte Vista, CO 81144, Suite 282, Federal Bldg., Pocatello, ID Greenbelt, MD 20770, (301) 344–3151 (719) 852–5941 83201, (208) 236–7500 National Appeals Division Routt—Forest Supervisor, 29587 W. US 40, Challis—Forest Supervisor, HC 63 Box 1671, Suite 20, Steamboat Springs, CO 80487– F.S. Bldg., Challis, ID 83226, (208) 879– Administrative Officer, National Appeals 9550, (303) 879–1722 2285 Division, 3101 Park Center Drive, Room San Juan—Forest Supervisor, 701 Camino Payette—Forest Supervisor, Box 1026 or 106 1020, Alexandria, VA 22302, (703) 305– Del Rico, Room 301, Durango, CO 81301, W. Park, McCall, ID 83638, (208) 634–0700 2566 (303) 247–4874 Salmon—Forest Supervisor, PO Box 729, Forest Service White River—Forest Supervisor, Old Federal Salmon, ID 83467–0729, (208) 765–2215 Bldg., Box 948, Glenwood Springs, CO Sawtooth—Forest Supervisor, 2647 Kimberly Washington Office 81602, (303) 945–2521 Rd. East, Twin Falls, ID 83301–7976, (208) Director, Personnel Management, 900 RP–E, 737–3200 Nebraska PO Box 96090, Washington, DC 20090– Targhee—Forest Supervisor, 420 N. Bridge 6090, (703) 235–8102 Nebraska—Forest Supervisor, 125 N. Main St., PO Box 208, St. Anthony, ID 83445, St., Chadron, NE 69337, (308) 432–0300 (208) 624–3151 International Institute of Tropical Forestry South Dakota Director, Call Box 25000, UPR Experimental Nevada Station Grounds, Rio Piedras, PR 00928– Black Hills—Forest Supervisor, R.R. 2, Box Humboldt—Forest Supervisor, 976 Mountain 2500, (809) 766–5335 200, Custer, SD 57730–9504, (605) 673– City Highway, Elko, NV 89801, (702) 738– 2251 Region 1 5171 Wyoming Toiyabe—Forest Supervisor, 1200 Franklin Regional Forester, Regional Office, Federal Way, Sparks, NV 89431, (702) 355–5300 Bldg., PO Box 7669, Missoula, MT 59807, Bighorn—Forest Supervisor, 1969 So. (406) 329–3003 Seridan Ave., Seridan, WY 82801, (307) Utah 672–0751 Ashley—Forest Supervisor, 355 North Vernal Idaho Medicine Bow—Forest Supervisor, 2468 Ave., Vernal, UT 84078, (801) 789–1181 Clearwater—Forest Supervisor, 12730 Jackson St., Laramie, WY 82070–6535, Dixie—Forest Supervisor, 82 No. 100 E. St., Highway 12, Orofino, ID 83544, (208) 476– (305) 745–8971 PO Box 580, Cedar City, UT 84721–0580, 4541 Shoshone—Forest Supervisor, 808 Meadow (801) 865–3700 Idaho Panhandle National Forests—Forest Lane, Cody, WY 82414, (307) 527–6241 Fishlake—Forest Supervisor, 115 E. 900 N, Supervisor, 1201 Ironwood Dr., Coeur Region 3 Richfield, UT 84701, (801) 896–9233 d’Alene, ID 83814, (208) 765–7223 Manti—La Sal—Forest Supervisor, 599 W. Regional Forester—Regional Office, Federal Price River Drive, Price, UT 84501, (801) Nez Perce—Forest Supervisor, Rt. 2, Box 475, Bldg. 517 Gold Ave., SW., Albuquerque, Grangeville, ID 83530, (208) 983–1950 637–2817 NM 87102, (505) 842–3380 Uinta—Forest Supervisor, 88 W. 100 N., Montana Arizona Provo, UT 84601, (801) 342–5100 Wasatch—Cache—Forest Supervisor, 8236 Beaverhead—Forest Supervisor, 420 Barrett Apache—Sitgreaves—Forest Supervisor, Federal Bldg., 125 S. State St., Salt Lake St., Dillon, MT 59725–3572, (406) 683– Federal Bldg., Box 640, Springerville, AZ City, UT 84138, (801) 524–5030 3900 85938, (602) 333–4301 Bitterroot—Forest Supervisor, 1801 N. 1st St., Coconino—Forest Supervisor, 2323 E. Wyoming Hamilton, MT 59840, (406) 363–7121 Greenlaw Lane, Flagstaff, AZ 86004, (602) Bridger—Teton—Forest Supervisor, F.S. Custer—Forest Supervisor, Box 2556, 527–3600 Billings, MT 59103, (406) 657–6361 Bldg., 340 N. Cache, Box 1888, Jackson, Coronado—Forest Supervisor, 300 W. WY 83001, (307) 739–5500 Deerlodge—Forest Supervisor, Federal Bldg., Congress, Tucson, AZ 85701, (692) 670– Box 400, Butte, MT, (406) 496–3400 4552 Region 5 Flathead—Forest Supervisor, 1935 3rd Ave., Kaibab—Forest Supervisor, 800 S. 6th St., Regional Forester, Regional Office, 630 E., Kalispell, MT, (406) 755–5401 Williams, AZ 86046, (602) 635–2681 Sansome St., San Francisco, CA 94111, Gallatin—Forest Supervisor, Federal Bldg., Prescott—Forest Supervisor, 344 South (415) 705–2856 10 E. Babcock, Box 130, Bozeman, MT Cortez, Prescott, AZ 86303, (602) 771–4700 59771, (406) 587–6701 Tonto—Forest Supervisor, 2324 E. McDowell California Helena—Forest Supervisor, 2880 Skyway Dr., Rd., Phoenix, AZ 85006, (602) 225–5200 Angeles—Forest Supervisor, 701 N. Santa Helena, MT, (406) 449–5201 Anita Ave., Arcadia, CA 91006, (818) 574– New Mexico Kootenai—Forest Supervisor, 506 Highway 2 1613 W., Libby, MT 59923, (406) 293–6211 Carson—Forest Supervisor, 208 Cruz Alta Cleveland—Forest Supervisor, 10845 Rancho Lewis and Clark—Forest Supervisor, PO Box Rd., PO Box 558, Paos, NM 87571, (505) Bernardo Rd., Suite 200, San Diego, CA 869, 1101 15th St. N., Great Falls, MT 758–6200 92127–2107, (619) 673–6180 59403, (406) 791–7700 Cibola—Forest Supervisor, 2113 Osuna Rd., Eldorado—Forest Supervisor, 100 Forni Rd., Lolo—Forest Supervisor, Bldg. 24, Ft. NE., Suite A, Albuquerque, NM 87113– Placerville, CA 95667, (916) 622–5062 Missoula, Missoula, MT 59801, (406) 329– 1001, (505) 761–4650 Inyo—Forest Supervisor, 873 North Main St., 3750 Gila—Forest Supervisor, 3005 E. Camino del Bishop, CA 93514, (619) 873–2400 Bosque, Silver City, NM 88061, (505) 388– Klamath—Forest Supervisor, 1312 Fairlane Region 2 8201 Rd., Yreka, CA 96097, (916) 842–6131 Regional—Forester, Regional Office, 740 Lincoln—Forest Supervisor, Federal Bldg. Lassen—Forest Supervisor, 55 So. Simms St., Lakewood, CO 80255, (303) 1101 New York Ave., Alamogordo, NM Sacramento St., Susanville, CA 96130, 275–5306 88310–6992, (505) 434–7200 (916) 257–2151 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42427 Los Padres—Forest Supervisor, 6144 Calle Okanogan—Forest Supervisor, 1240 South Texas Real, Goleta, CA 93117, (805) 683–6711 Second Ave., Okanogan, WA 98840, (509) National Forests in Texas—Forest Mendocino—Forest Supervisor, 420 E. Laurel 826–3275 Supervisor, Homer Garrison Federal Bldg., St., Willows, CA 95988, (916) 934–3316 Olympic—Forest Supervisor, 1835 Black 701 N. First St., Lufkin, TX 75901, (409) Modoc—Forest Supervisor, 800 W. 12th St., Lake Blvd., SW., Olympia, WA 98512, 639–8501 Alturas, CA 96101, (916) 233–5811 (206) 956–2300 Plumas—Forest Supervisor, 159 Lawrence Wenatchee—Forest Supervisor, 301 Yakima Virginia St., Box 11500, Quincy, CA 95971–6025, St., P.O. Box 811, Wenatchee, WA 98807, George Washington—Forest Supervisor, P.O. (916) 283–2050 (509) 662–4335 Box VA, 22801, (703) 433–2491 San Bernardino—Forest Supervisor, 1824 S. Commercenter Cir., San Bernardino, CA Region 8 Region 9 92408–3430, (909) 383–5588 Regional Forester, Regional Office, 1720 Regional Forester, Regional Office, 310 W. Sequoia—Forest Supervisor, 900 W. Grand Peachtree Rd., NW., Atlanta, GA 30367, Wisconsin Ave., Room 500 Milwaukee, WI Ave., Porterville, CA 93257–2035, (209) (404) 347–3841 53203 (414) 297–3674 784–1500 Illinois Shasta—Trinity—Forest Supervisor, 2400 Alabama Washington Ave., Redding, CA 96001, National Forests in Alabama—Forest Shawnee—Forest Supervisor, 901 S. (916) 246–5222 Supervisor, 2946 Chestnut St., Commercial Street, Harrisburg, IL 62946, Sierra—Forest Supervisor, 1600 Tollhouse Montgomery, AL 36107–3010, (205) 832– (618) 523–7114 Rd., Clovis, CA 93611, (209) 297–0706 4470 Indiana Six Rivers—Forest Supervisor, 1330 Bayshore Way, Eureka, CA 95501–3834, Arkansas Hoosier—Forest Supervisor, 811 Constitution (707) 441–3517 Ouachita—Forest Supervisor, Box 1270, Ave., Bedford, IN 47421, (812) 275–5987 Stanislaus—Forest Supervisor, 19777 Federal Bldg., Hot Springs National Park, Michigan Greenley Rd., Sonora, CA 95370, (209) AR 71902, (501) 321–5200 532–3671 Ozark—St. Francis—Forest Supervisor, 605 Hiawatha—Forests Supervisor, 2727 N. Tahoe—Forest Supervisor, 631 Coyote St., West Main, Box 1008, Russellville, AR Lincoln, Rd., Escanaba, MI 49829, (906) 785–4062 PO Box 6003, Nevada City, CA 95959– 72801, (501) 968–2354 6003, (916) 265–4531 Huron—Manistee Forest—Supervisor, 421 S. Florida Mitchell St., Cadillac, MI 49601, (616) 775– Region 6 National Forests in Florida—Forest 2421 Regional Forester, Regional Office, 333 S.W. Supervisor, Woodcrest Office Park, 325 Ottawa—Forest Supervisor 2100 E. 1st Ave., PO Box 3623, Portland, OR John Knox Rd., Suite F–100, Tallahassee, Cloverland Dr., Ironwood, MI 49938, (906) 97208, (503) 326–3630 FL 32303, (904) 681–7265 932–1330 Oregon Georgia Minnesota Deschutes—Forest Supervisor, 1645 Highway Chattahoochee and Oconee—Forest Chippewa—Forest Supervisor, Rt. 3 Box 244, 20 E., Bend, OR 97701, (503) 388–2715 Cass Lake, MN 56633, (218) 335–8600 Fremont—Forest Supervisor, 524 North G St., Supervisor, 508 Oak St., NW., Gainesville, GA 30501, (404) 536–0541 Superior—Forest Supervisor, Box 338, Lakeview, OR 97630, (503) 947–2151 Federal Bldg., 515 W. First St., Duluth, MN Malheur—Forest Supervisor, 139 N. E. Kentucky 55802, (218) 720–5324 Dayton St., John Day, OR 97845, (503) 575– 1731 Daniel Boone—Forest Supervisor, 100 Missouri Vaught Rd., Winchester, KY 40391, (606) Mt. Hood—Forest Supervisor, 2955 N.W. Mark Twain—Forest Supervisor, 401 745–3100 Division St., Gresham, OR 97030, (503) Fairgounds Rd., Rolla, MO 65401, (314) 666–0700 Louisiana 364–4621 Ochoco—Forest Supervisor, Box 490, Prineville, OR 97754, (503) 447–6247 Kisatchie—Forest Supervisor, 2500 New Hampshire and Maine Shreveport Hwy., P.O. Box 5500, Pineville, Rogue River—Forest Supervisor, Federal White Mountain—Forest Supervisor, Federal LA 71361–5500, (318) 473–7160 Bldg., 333 W. 8th St., Box 520, Medford, Bldg., 719 Main St., P.O. Box 638, Laconia, OR 97501, (503) 776–3600 Mississippi NH 03247, (603) 528–8721 Siskiyou—Forest Supervisor, Box 440, Grants Pass, OR 97526, (503) 471–6500 National Forests in Mississippi—Forest Ohio Siuslaw—Forest Supervisor, Box 1148, Supervisor, 100 W. Capital St., Suite 1141, Wayne—Forest Supervisor, 219 Columbus Corvallis, OR 97339, (503) 750–7000 Jackson, MS 69, (601) 965–4391 Rd., Athens, OH 45701–1399, (614) 592– Umatilla—Forest Supervisor, 2517 S.W. North Carolina 6644 Hailey Ave., Pendleton, OR 97801, (503) 278–3721 National Forests in North Carolina—Forest Pennsylvania Umpqua—Forest Supervisor, Box 1008, Supervisor, Post and Otis Streets, P.O. Box Allegheny—Forest Supervisor, 222 Liberty Roseburg, OR 97470, (503) 672–6601 2750, Asheville, NC 28802, (704) 257–4200 St., Box 847, Warren, PA 16365, (814) 723– Wallowa—Whitman—Forest Supervisor, Box Puerto Rico and the Virgin Islands 5150 907, Baker City, OR 97814, (503) 523–6391 Willamette—Forest Supervisor, Box 10607, Caribbean N.F.—Forest Supervisor, Call Box Vermont Eugene, OR 97440, (503) 465–6521 25000, Rio Piedras, PR 00928–2500, (809) Green Mountain and Finger Lakes—Forest Winema—Forest Supervisor, 2819 Dahlia, 766–5335 Supervisor, 231 N. Main St., Rutland, NY Klamath Falls, OR 97601, (503) 883–6714 South Carolina 05701, (802) 747–6700 Washington Francis Marion and Sumter National West Virginia Colville—Forest Supervisor, 765 S. Main, Forests— Forest Supervisor, 4923 Broad Monogahela—Forest Supervisor, USDA Colville, WA 99114, (509) 684–7000 River Rd., Columbia, SC 29212, (803) 765– Bldg., 200 Sycamore St., Elkins, WV Gifford Pinchot—Forest Supervisor, 6926 E. 5222 26241–3962, (304) 636–1800 4th Plain Blvd., Vancouver, WA 98668– 8944, (206) 750–5000 Tennessee Wisconsin Mt. Baker—Snoqualmie—Forest Supervisor, Cherokee, Forest Supervisor, 2800 N. Ocoee Chequamegon—Forest Supervisor, 1170 4th 21905 64th Avenue, West, Mountlake St., NE., P.O. Box 2010, Cleveland, TN Ave. South, Park Falls, WI 54552, (715) Terrace, WA 98043, (206) 744–3200 37320, (615) 476–9700 762–2461 42428 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Nicolet—Forest Supervisor, Federal Bldg., 68 Headquarters Pennsylvania Avenue, NW., Suite 1170, S. Stevens, Rhinelander, WI 54501, (715) Chief, Systems Support Branch, Technology Washington, DC 20530, (202) 514–6008 362–1300 Support Division, 451 7th Street, SW., 5. On page 5048, in the third column, Region 10 Room 2256, Washington, DC 20410, (202) under the heading ‘‘Immigration and Regional Forester, Regional Office, Federal 708–0241 Naturalization Service,’’ the designated Office Bldg., Box 21628, Juneau, AK New England (Massachusetts, Maine, agent listing is corrected as follows: 99802–1628, (907) 586–8719 Vermont, New Hampshire, Rhode Island, and Connecticut) Personnel Support, Immigration and Alaska Naturalization Service, 425 I Street, NW., Human Resources Officer, Thomas P. O’Neill, Room 2038, Washington, DC 20536, (202) Chugach—Forest Supervisor, 3301 C St., Jr. Federal Building, 10 Causeway Street, Suite 300, Anchorage, AK 99503–3998, 514–2525 Room 375, Boston, MA 02222, (617) 565– Human Resources and Career Development, (907) 271–2500 5435 Tongass—Chatham Area—Forest Supervisor, Immigration and Naturalization Service, # 204 Siginaka Way, Sitka, AK 99835, (907) New York, New Jersey One Federal Drive 400, Whipple, Bldg., 747–6671 Human Resources Officer, 26 Federal Plaza, Fort Snelling, MN 55111, (612) 725–3211 Tongass—Ketchikan Area—Forest New York, NY 10278, (212) 264–0782 Human Resources and Career Development, Immigration and Naturalization Service, 70 Supervisor, Federal Bldg., Ketchikan, AK Mid-Atlantic (Pennsylvania, Maryland, Kimball Avenue, South Burlington, VT 99901, (907) 225–3101 Washington, DC, West Virginia, Virginia, and 05403, (802) 660–5137 Tongass—Stikine Area—Forest Supervisor, Delaware) Box 309, Petersburg, AK 99833, (907) 772– Human Resources and Career Development, 3841 Human Resources Officer, The Wanamaker Immigration and Naturalization Service, Forest and Range Experiment Stations, Building, 100 Penn Square East, 7701 N. Stemmons Freeway, Dallas, TX Intermountain Research Station, Director, Philadelphia, PA 19107, (215) 656–0593 75247, (214) 655–6032 324 25th St., Ogden, UT 84401, (801) 625– Southwest (Georgia, North Carolina, Personnel Office, Immigration and 5412 Kentucky, Tennessee, South Carolina, Naturalization Service, P.O. Box 30070, North Central Forest Experiment Station, Alabama, Mississippi, Puerto Rico, and Laguna Niguel, CA 92607, (714) 643–4934 Director, 1992 Folwell Ave., St. Paul, MN Florida) 6. On page 5052, in the first column, 55108, (612) 649–5249 Human Resources Officer, Richard B. Russell under the heading ‘‘Department of the Northeastern Forest Experiment Station, Federal Building, 75 Spring Street, SW., Treasury,’’ the U.S. Savings Bonds Director, 5 Radnor Corporate Center, Suite Atlanta, GA 30303, (404) 331–4078 200, P.O. Box 6775, Radnor, PA 19087– Division should be removed and the Midwest (Illinois, Minnesota, Wisconsin, 8775, (610) 975–4017 listings renumbered. Michigan, Ohio, and Indiana) Pacific Northwest Research Station, Director, 7. On page 5052, in the first column, P.O. Box 3890, Portland, OR 97208–3890, Human Resources Officer, Ralph H. Metcalfe under the heading ‘‘Department of the (503) 326–5640 Federal Building, 77 West Jackson Treasury,’’ the designated agent listing Pacific Southwest Forest and Range Boulevard, Chicago, IL 60604, (312) 353– for the Bureau of the Public Debt should Experiment Station, Director, 800 5960 be corrected as follows: Buchanan St., West Bldg., Albany, CA Southwest (Texas, Oklahoma, Arkansas, Deputy Chief Counsel, Bureau of the Public 94710–0011, (510) 559–6310 Louisiana, and New Mexico) Debt, Room 119, Hintgen Building, Rocky Mountain Forest and Range Human Resources Officer, 1600 Experiment Station, Director, 240 W. Parkersburg, WV 26106–1328, (304) 480– Throckmorton, Post Office Box 2905, Fort 5192 Prospect Rd., Fort Collins, CO 80526–2098, Worth, TX 76113, (817) 885–5471 (303) 498–1126 8. On page 5060, in the third column, Southeastern Forest Experiment Station, Great Plains (Kansas, Missouri, Iowa, and Nebraska) the following heading and designated Director, 200 Weaver Blvd., P.O. Box 2680, agent should be added: Ashville, NC 28802, (704) 257–4300 Human Resources Officer, Gateway Tower II, Southern Forest Experiment Station, 400 State Avenue, Kansas City, KS 66101, Social Security Administration, Office of the Director, T–10210, U.S. Postal Service (913) 551–5419 General Counsel, Room 311, Althmeyer Bldg., 6401 Security Blvd., Baltimore, MD Bldg., 701 Loyola Ave., New Orleans, LA Rocky Mountain (Colorado, Montana, North 21235 (410) 965–3169 70113, (504) 589–3921 Dakota, South Dakota, Wyoming, and Utah) Forest Products Laboratory, Director, One 9. On page 5061, in the first column, Gifford Pinchot Dr., Madison, WI 53705– Human Resources Officer, First Interstate under the heading ‘‘Central Intelligence 2398, (608) 231–9318 Tower North, 633 17th Street, Denver, CO Agency,’’ the designated agent listing is 80202, (303) 672–5259 Northeastern Area State and Private Forestry, corrected as follows: Director, 5 Radnor Corporate Center, Suite Pacific/Hawaii (California, Nevada, Arizona, 200, P.O. Box 6775, Radnor, PA 19087– and Hawaii) Office of Personnel Security, Attn: Chief, 8775, (610) 975–4103 Special Activities Staff, Washington, DC Human Resources Officer, Phillip Burton 20505, (703) 482–1217 Federal Building and U.S. Courthouse, 450 2. On page 5046, in the second Golden Gate Avenue, Post Office Box 10. On page 5062, in the first column, column, under the heading ‘‘Air Force,’’ 36003, San Francisco, CA 94102, (415) under the heading ‘‘National paragraph 4, ‘‘Civilian employees of all 556–7142 Aeronautics and Space other Air Force nonappropriated fund Northwest/Alaska (Washington, Oregon, Administration,’’ the designated agent activities’’ the designated agent listing is Idaho, and Alaska) listing for NASA Headquarters is corrected as follows: Human Resources Officer, Federal Office corrected as follows: Office of Legal Counsel, Air Force Service Building, 909 First Avenue, Suite 200, Associate General Counsel (General), Agency, 10100 Reunion Place, Suite 503, Seattle, WA 98104, (206) 220–5125 Attention: SN Code GG, NASA San Antonio, TX 78216–4138, (210) 652– 4. On page 5048, in the second Headquarters, 300 E Street, SW., 7051 column, under the heading Department Washington, DC 20546, (202) 358–2465 3. On page 5048, in the first column, of Justice the designated agent listing for 11. On page 5062, in the second under the heading ‘‘Department of ‘‘Offices, Boards and Divisions’’ is column, under the heading ‘‘National Housing and Urban Development’’ the corrected to read as follows: Credit Union Administration,’’ the designated agent listing is corrected as Office, Boards, and Divisions, Personnel designated agent listing is corrected as follows: Group/Payroll Operations, 1331 follows: Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42429 General Counsel, Office of General Counsel, DATES: The effective date of the direct 9006, 9007, 9008, 9032, 9033, 9034, 1775 Duke Street, Alexandria, VA 22314– final rule is confirmed as August 18, 9036, 9037, 9038 and 9039 were 3428, (703) 518–6540 1995. transmitted to Congress on June 12, 12. On page 5062, in the third FOR FURTHER INFORMATION CONTACT: 1995. Thirty legislative days expired in column, under the heading ‘‘Panama George Wollam, GIPSA–FGIS, USDA, the Senate and the House of Canal Commission,’’ the designated Room 0623–S, P.O. Box 96454, Representatives on August 2, 1995. agent listing should be corrected as Washington, DC 20090–6454; Announcement of Effective Date: The follows: Telephone (202) 720–0292; FAX (202) amendments to 11 CFR 106.2(a)(1) and Secretary, Office of the Secretary, 720–4628. 11 CFR Parts 9002, 9003, 9004, 9006, International Square, 1825 I Street, NW., 9007, 9008, 9032, 9033, 9034, 9036, Authority: Pub. L. 940582, 90 Stat. 2867, Suite 1050, Washington, DC 20006–5402, as amended (7 U.S.C. 71 et seq.) 9037, 9038 and 9039, as published at 60 (202) 634–6441 FR 31854, are effective as of August 16, Dated: August 10, 1995. 1995. 13. On page 5064, in the third James R. Baker, column, the following heading and Administrator. Dated: August 11, 1995. designated agent should be added: [FR Doc. 95–20219 Filed 8–15–95; 8:45 am] Lee Ann Elliott, Vice Chairman, Federal Election Commission. VI. Executive Office of the President BILLING CODE 3410±EN±M [FR Doc. 95–20281 Filed 8–15–95; 8:45 am] Executive Office of the President BILLING CODE 6715±01±M General Counsel, Office of FEDERAL ELECTION COMMISSION Administration, Old Executive Office Building, Washington, DC 20503, 11 CFR Parts 106, 9002, 9003, 9004, DEPARTMENT OF TRANSPORTATION (202) 395–2273 9006, 9007, 9008, 9032, 9033, 9034, U.S. Office of Personnel Management. 9036, 9037, 9038, and 9039 Federal Aviation Administration Lorraine A. Green, [Notice 1995±11] Deputy Director. 14 CFR Part 71 [FR Doc. 95–19893 Filed 8–15–95; 8:45 am] Public Financing of Presidential [Airspace Docket No. 95±AWP±12] BILLING CODE 6325±01±M Primary and General Election Candidates Revocation of Class E Airspace Area; Merced, Castle Air Force Base (AFB), AGENCY: DEPARTMENT OF AGRICULTURE Federal Election Commission. CA, and Amendment of Class E ACTION: Final rule; announcement of Airspace Areas; Merced Municipal/ Grain Inspection, Packers and effective date. MacReady Field, CA Stockyards Administration SUMMARY: On June 16, 1995 (60 FR AGENCY: Federal Aviation 7 CFR Part 802 31854), the Commission published the Administration [FAA], DOT. text of revised regulations governing RIN 0580±AA39 ACTION: Final rule; change in effective publicly financed Presidential primary date. Official Performance and Procedural and general election candidates. 11 CFR Requirements for Grain Weighing Parts 9002, 9003, 9004, 9006, 9007, SUMMARY: This corrective action changes Equipment and Related Grain Handling 9008, 9032, 9033, 9034, 9036, 9037, the effective date of the revocation of Systems 9038 and 9039. These regulations Class E airspace area at Merced, Castle implement the provisions of 26 U.S.C. AFB, CA, and amendment of Class E AGENCY: Grain Inspection, Packers and Chapters 95 and 96, the Presidential airspace area at Merced Municipal/ Stockyards Administration, USDA. Election Campaign Fund Act and the MacReady Field, CA. The recent closure ACTION: Direct Final Rule; Confirmation Presidential Primary Matching Payment of Castle AFB, CA, has made this change of Effective Date. Account Act. The Commission also necessary. published a conforming amendment to EFFECTIVE DATE: The effective date of SUMMARY: On June 19, 1995, the Grain 11 CFR 106.2(a)(1). The Commission 0901 UTC, November 9, 1995, is Inspection, Packers and Stockyards announces that these rules are effective changed to 0901 UTC September 5, Administration published a direct final as of August 16, 1995. 1995. rule [69 FR 31907] entitled, ‘‘Official Performance and Procedural EFFECTIVE DATE: August 16, 1995. FOR FURTHER INFORMATION CONTACT: Requirements for Grain Weighing FOR FURTHER INFORMATION CONTACT: Scott Speer, System Management Equipment and Related Grain Handling Ms. Susan E. Propper, Assistant General Specialist, System Management Branch, Systems.’’ The direct final rule notified Counsel, 999 E Street NW., Washington, AWP–530, Air Traffic Division, the public of amendments to the grain DC 20463, (202) 219–3690 or toll free Western-Pacific Region, Federal weighing equipment and related grain (800) 424–9530. Aviation Administration, 15000 handling systems regulations by SUPPLEMENTARY INFORMATION: Section Aviation Boulevard, Lawndale, adopting the applicable 438(d) of Title 2, United States Code, California 90261, telephone (310) 725– recommendations of the National require that any rules or regulations 6533. Institute of Standards and Technology prescribed by the Commission to SUPPLEMENTARY INFORMATION: Handbook 44, 1994 edition, implement Titles 2 and 26 of the United ‘‘Specifications, Tolerances, and Other States Code be transmitted to the History Technical Requirements for Weighing Speaker of the House of Representatives Airspace Docket No. 95–AWP–12, and Measuring Devices.’’ No adverse and the President of the Senate thirty published on July 18, 1995 (60 FR comments or written notice of intent to legislative days prior to final 36637), modified the Class E airspace submit adverse comments were received promulgation. The revisions to 11 CFR areas at Merced, Castle AFB, CA, and in response to the direct final rule. 106.2(a)(1) and Parts 9002, 9003, 9004, Merced Municipal/MacReady Field, CA. 42430 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations This action was originally scheduled instrument conditions from other under Executive Order 12866; (2) is not to become effective on November 9, aircraft operating in visual weather a ‘‘significant rule’’ under DOT 1995; however, the early closure of conditions. An Automated Weather Regulatory Policies and Procedures (44 Castle AFB, CA, has required the Observation System (AWOS) provides FR 11034; February 26, 1979); and (3) effective date of this action to be 24-hour weather reporting capability for does not warrant preparation of a changed to September 5, 1995. the airport which makes it possible to Regulatory Evaluation as the anticipated The FAA has determined that this designate a full-time Class E2 airspace impact is so minimal. Since this is a regulation only involves an established area. The appropriate publications will routine matter that will only affect air body of technical regulations for which be modified to provide the aviation traffic procedures and air navigation, it frequent and routine amendments are public with updated information. is certified that this rule will not have necessary to keep them operational EFFECTIVE DATE: 0901 UTC, November 9, a significant economic impact on a current. Therefore, this regulation—(1) 1995. substantial number of small entities is not a ‘‘significant regulatory action’’ FOR FURTHER INFORMATION CONTACT: under Executive Order 12866; (2) is not under the criteria of the Regulatory Angeline Perri, Air Traffic Division, Flexibility Act. a ‘‘significant rule’’ under DOT System Management Branch, AGL–530, Regulatory Policies and Procedures (44 Federal Aviation Administration, 2300 List of Subjects in 14 CFR Part 71 FR 11034; February 26, 1979); and (3) East Devon Avenue, Des Plaines, Illinois does not warrant preparation of a 60018, telephone (708) 294–7571. Airspace, Incorporation by reference, Regulatory Evaluation as the anticipated Navigation (air). impact is so minimal. Since this is a SUPPLEMENTARY INFORMATION: Adoption of the Amendment routine matter that will only affect air History traffic procedures and air navigation, it In consideration of the foregoing, the is certified that this rule will not have On June 9, 1995, the FAA proposed to amend part 71 of the Federal Aviation Federal Aviation Administration a significant economic impact on a amends 14 CFR part 71 as follows: substantial number of small entities Regulations (14 CFR Part 71) to modify the Class E2 airspace near Mount under the criteria of the Regulatory PART 71Ð[AMENDED] Flexibility Act. Vernon, IL (60 FR 30478). Interested parties were invited to List of Subjects in 14 CFR Part 71 participate in this rulemaking 1. The authority citation for 14 part 71 continues to read as follows: Airspace, Incorporation by reference, proceeding by submitting written Navigation (air). comments on the proposal to the FAA. Authority: 49 U.S.C. 40103, 40113, 40120; No comments objecting to the proposal E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Change in Effective Date were received. Class E airspace areas Comp., p. 389; 49 U.S.C. 106(g); 14 CFR The effective date on Airspace Docket designated as a surface area for an 11.69. No. 95–AWP–12 is hereby changed from airport are published in paragraph 6002 § 71.1 [Amended] November 9, 1995, to September 5, of FAA Order 7400.9B dated July 18, 1995. 1994, and effective September 16, 1994, 2. The incorporation by reference in Authority: 49 U.S.C. 40103, 40113, 40120; which is incorporated by reference in 14 14 CFR 71.1 of the Federal Aviation E.O. 10854, 24 FR 9565, 3 CFR 1959–1963 CFR 71.1. The Class E airspace Administration Order 7400.9B, Airspace Comp., p. 389; 49 U.S.C. 106(g); 14 CFR designation listed in this document will Designations and Reporting Points, 11.69. be published subsequently in the Order. dated July 18, 1994, and effective Issued in Los Angeles, California, on The Rule September 16, 1994, is amended as August 4, 1995. follows: James H. Snow, This amendment to part 71 of the Federal Aviation Regulations (14 CFR Paragraph 6002 Class E airspace areas Acting Manager, Air Traffic Division, Western-Pacific Region. part 71) modifies the Class E airspace designated as a surface area for an airport. area near Mount Vernon, IL, by [FR Doc. 95–20268 Filed 8–15–95; 8:45 am] * * * * * changing the airspace area’s effective BILLING CODE 4910±13±M hours from part-time to full-time. The AGL IL E2 Mount Vernon, IL [Revised] intended effect of this action is to Mount Vernon-Outland Airport, IL 14 CFR Part 71 enhance safety for all potential users of (Lat. 38°19′24′′ N, long. 88°51′31′′ W) this airspace by providing segregation of Mount Vernon-VOR/DME [Airspace Docket No. 95±AGL±6] aircraft using instrument approach (Lat. 38°21′43′′ N, long. 88°48′26′′ W) procedures in instrument conditions Within a 4.2-mile radius of Mount Vernon- Modification of Class E Airspace; from other aircraft operating in visual Mount Vernon, IL Outland Airport and within 4 miles each side weather conditions. An AWOS provides of the Mount Vernon VOR/DME 044° radial AGENCY: Federal Aviation 24-hour weather reporting capability for extending from the 4.2-mile radius to 9.1 Administration (FAA), DOT. the airport which makes it possible to miles northeast of the VOR/DME. designate a full-time Class E2 airspace ACTION: Final rule. * * * * * area. The appropriate publications will Issued in Des Plaines, Illinois, on July 27, SUMMARY: This action modifies the Class be modified to provide the aviation 1995. E2 airspace near Mount Vernon-Outland public with updated information. Airport, Mount Vernon, IL, by changing The FAA has determined that this Maureen Woods, the airspace area’s effective hours from regulation only involves an established Acting Manager, Air Traffic Division. part-time to full-time. The intended body of technical regulations for which [FR Doc. 95–20265 Filed 8–15–95; 8:45 am] effect of this action is to enhance safety frequent and routine amendments are BILLING CODE 4910±13±M for all potential users of this airspace by necessary to keep them operationally providing segregation of aircraft using current. Therefore, this regulation—(1) instrument approach procedures in is not a ‘‘significant regulatory action’’ Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42431 14 CFR Part 71 accommodate existing instrument That airspace extending upward from 700 approach procedures to Devils Lake feet above the surface within an 8.7-mile [Airspace Docket No. 95±AGL±5] Municipal Airport, Devils Lake, ND. radius of the Devils Lake Municipal Airport and that airspace extending upward from Modification of Class E Airspace; The intended effect of this action is to 1,200 feet above the surface within a 22-mile Devils Lake, ND provide segregation of aircraft using radius of the Devils Lake VORTAC. instrument approach procedures in * * * * * AGENCY: Federal Aviation instrument conditions from other Issued in Des Plaines, Illinois, on July 27, Administration (FAA), DOT. aircraft operating in visual weather 1995. ACTION: Final rule. conditions. The area will be depicted on Maureen Woods, aeronautical charts to provide a Acting Manager, Air Traffic Division. SUMMARY: This action modifies the Class reference for pilots operating in VFR [FR Doc. 95–20266 Filed 8–15–95; 8:45 am] E5 airspace near Devils Lake, ND. Based conditions. on the results of an airspace review the The FAA has determined that this BILLING CODE 4910±13±M existing geographic size of the E5 regulation only involves an established airspace area was found to be body of technical regulations for which insufficient to accommodate existing frequent and routine amendments are DEPARTMENT OF TREASURY instrument approach procedures to necessary to keep them operationally Customs Service Devils Lake Municipal Airport, Devils current. Therefore, this regulation—(1) Lake, ND. The intended effect of this is not a ‘‘significant regulatory action’’ 19 CFR Part 19 action is to provide segregation of under Executive Order 12866; (2) is not aircraft using instrument approach a ‘‘significant rule’’ under DOT Duty±Free Stores procedures in instrument conditions Regulatory Policies and Procedures (44 from other aircraft operating in visual FR 11034; February 26, 1979); and (3) CFR Correction weather conditions. The area will be does not warrant preparation of a In title 19 of the Code of Federal depicted on aeronautical charts to Regulatory Evaluation as the anticipated Regulations, parts 1 to 140, revised as of provide a reference for pilots operating impact is so minimal. Since this is a July 1, 1995, § 19.5 appearing on page in Visual Flight Rule (VFR) conditions. routine matter that will only affect air 235 should be removed and reserved. EFFECTIVE DATE: 0901 UTC, November 9, traffic procedures and air navigation, it 1995. is certified that this rule will not have BILLING CODE 1505-01-D FOR FURTHER INFORMATION CONTACT: a significant economic impact on a substantial number of small entities Angeline Perri, Air Traffic Division, SOCIAL SECURITY ADMINISTRATION System Management Branch, AGL–530, under the criteria of the Regulatory Federal Aviation Administration, 2300 Flexibility Act. 20 CFR Parts 404 and 422 East Devon Avenue, Des Plaines, Illinois List of Subjects in 14 CFR Part 71 60018, telephone (708) 294–7571. RIN 0960±AD70 Airspace, Incorporation by reference, SUPPLEMENTARY INFORMATION: Navigation (air). Wage Reports and Pension Information History Adoption of the Amendment AGENCY: Social Security Administration. On June 9, 1995, the FAA proposed to In consideration of the foregoing, the amend part 71 of the Federal Aviation Federal Aviation Administration ACTION: Final rules. Regulations (14 CFR part 71) to modify amends 14 CFR part 71 as follows: SUMMARY: We are updating our rules on the Class E5 airspace near Devils Lake, the need for and use of employer ND (60 FR 30479). PART 71Ð[AMENDED] identification numbers and on Interested parties were invited to 1. The authority citation for 14 part 71 processing reports of wages provided participate in this rulemaking continues to read as follows: annually by employers to the Social proceeding by submitting written Security Administration (SSA). In comments on the proposal to the FAA. Authority: 49 U.S.C. 40103, 40113, 40120; addition, we are adding to our rules the No comments objecting to the proposal E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 procedures we have for maintaining and were received. Class E airspace Comp., p. 389; 49 U.S.C. 106(g); 14 CFR 11.69. providing information we receive from designations for airspace areas employers on deferred vested pension extending upward from 700 feet or more § 71.1 [Amended] benefits. above the surface of the earth are 2. The incorporation by reference in published in paragraph 6005 of FAA EFFECTIVE DATE: These rules are effective 14 CFR 71.1 of the Federal Aviation August 16, 1995. Order 7400.9B dated July 18, 1994, and Administration Order 7400.9B, Airspace ADDRESSES: effective September 16, 1994, which is Designations and Reporting Points, Organizations and incorporated by reference in CFR 71.1. dated July 18, 1994, and effective individuals desiring to submit The Class E airspace designation listed September 16, 1994, is amended as comments on the information collection in this document will be published follows: requirements under ‘‘Paperwork subsequently in the Order. Reduction Act’’ should submit them to Paragraph 6005 Class E airspace areas the Office of Information and Regulatory The Rule extending upward from 700 feet or more Affairs, OMB, New Executive Office above the surface of the earth. This amendment to part 71 of the Building, Room 3208, Washington, DC Federal Aviation Regulations (14 CFR * * * * * 20503, Attention: Desk Officer for SSA. part 71) modifies the Class E airspace AGL ND E5 Devils Lake, ND [Revised] FOR FURTHER INFORMATION CONTACT: Jack area near Devils Lake, ND. Based on the Devils Lake Municipal Airport, ND Schanberger, Legal Assistant, 3–B–1 results of an airspace review the (Lat. 48°06′51′′ N, long. 98°54′32′′ W) Operations Building, 6401 Security geographic size of the E5 airspace area Devils Lake VORTAC Boulevard, Baltimore, MD 21235, (410) was found to be insufficient to (Lat. 48°06′48′′ N, long. 98°54′29′′ W) 965–8471. 42432 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations SUPPLEMENTARY INFORMATION: more wage reports per year must file benefits under a private pension plan. In Employer Identification Numbers them on magnetic media, unless the these rules, we explain how we requirement is waived by IRS. These administer this provision. Pursuant to section 205(c)(2)(A) of the regulations reflect these requirements Final Rules Social Security Act (the Act), SSA for filing annual wage reports with SSA maintains a record of the wages and and explain how SSA will process the On August 30, 1994, we published self-employment income of each reports and reconcile reporting errors proposed rules in the Federal Register individual. The record includes with IRS, employees, and employers. at 59 FR 44674 with a 60-day comment earnings covered under title II of the period. We received no comments on Act, earnings covered under title XVIII Incorrect Wage Reports these proposed rules. We are, therefore, of the Act, and earnings not covered We are also consolidating §§ 422.115 publishing the proposed rules under the Act. The record is identified and 422.120 to include in one section essentially unchanged as final rules. by the individual’s social security (§ 422.120) our current procedures for Regulatory Procedures number. Wages posted to an processing wage reports submitted to us individual’s record are based on wage by employers that do not include a Executive Order 12866 reports submitted to SSA and the worker’s social security number or We have consulted with the Office of Internal Revenue Service (IRS) by include an incorrect name or number. Management and Budget (OMB) and employers. IRS regulations at 26 CFR The existing regulations provide that we determined that these rules do not meet 31.6011(a)–1 require an employer to file will first contact the employer for the the criteria for a significant regulatory employment tax returns with IRS each missing information or correction. action under Executive Order 12866. year and IRS regulations at 26 CFR However, in this revised regulation, we Thus, they were not subject to OMB 31.6051–2 and 31.6091–1(d) require an state our current procedure which is to review. employer to file wage reports with SSA attempt to contact the employee first. each year. These requirements are also Additionally, we provide that we may Regulatory Flexibility Act explained on wage reporting forms and return to the employer a wage report We certify that these final rules will in related instructions issued by SSA submittal if 90 percent or more of the not have a significant economic impact and IRS. To help account for these wage reports in that submittal are on a substantial number of small entities returns and reports, IRS assigns an unidentified or incorrectly identified. because the procedures stated in these employer identification number (EIN) to We also explain in revised § 422.120 rules are already in effect without every employer. However, SSA will that we will inform IRS of all wage having caused a significant impact. assign a special identification number to reports filed with SSA that do not Therefore, a regulatory flexibility one or more political subdivisions of a include the required social security analysis as provided in Public Law 96– State which submits a modification to numbers. IRS may then assess the 354, the Regulatory Flexibility Act, is its coverage agreement under section employer a penalty for erroneous report not required. 218 of the Act. These numbers are filing, pursuant to the authority assigned only for State bookkeeping provided in section 6721 of the Internal Paperwork Reduction Act purposes unless coverage is extended to Revenue Code. These final rules contain reporting periods prior to 1987. Then, the special requirements in §§ 422.114 (e) and (f) Pension Plan Information number will be assigned and used for and 422.120(a). We would normally reporting the pre-1987 wages to SSA. Under section 6057 of the Internal seek approval of these requirements, The special number will also be Revenue Code, certain private pension under the Paperwork Reduction Act, assigned to an interstate instrumentality plan administrators must file with the from OMB. We are not doing so in this if pre-1987 coverage is obtained. IRS annual reports that identify situation because we already have individuals who separated from plan clearance from OMB to collect this Annual Wage Reporting coverage during the year and still have information using forms SSA–L93, 95 Section 232 of the Act was added by a right to future retirement benefits. In and 97 (OMB No. 0960–0432) and form section 8 of Public Law 94–202. Section addition, this provision of the Internal SSA–2765 (OMB No. 0960–0471). 8 is cited as the ‘‘Combined Old-Age, Revenue Code, as amended by section There is also a reporting requirement Survivors, and Disability Insurance- 108(h)(5) of Public Law 103–296, in § 422.122, which deals with Income Tax Reporting Amendments of provides for transmitting copies of the information on deferred vested pension 1975.’’ Section 232, as amended by annual reports to the Commissioner of benefits. As required by section 2(a) of section 107 of Public Law 103–296, Social Security. Then SSA transcribes the Paperwork Reduction Act of 1980, provides authority for the Secretary of the reports onto an electronic record for 44 U.S.C. 3504(h), we have submitted a the Treasury to make available to the the purpose of maintaining the pension copy to OMB for its review of this Commissioner of Social Security such information which SSA must provide to information collection requirement. documents that are agreed upon as specified individuals, as explained Other organizations and individuals being necessary for processing below. desiring to submit comments on these information contained in returns Section 1131 of the Act, as amended information collection requirements required by the Internal Revenue Code by section 108(b)(11) of Public Law should direct them to the address and by IRS regulations. Under this 103–296, requires that whenever the shown in ADDRESSES. authority and Public Law 94–455 and Commissioner of Social Security is Public reporting burden for this 95–216, SSA and IRS have entered into requested to do so, or whenever he or collection of information is estimated to an Agreement governing the manner in she makes a finding of fact and a average 30 minutes per response. This which employer wage reports will be decision as to the entitlement of an includes the time it will take to processed. Included in this process are individual to social security or medicare understand what is needed, gather the the wage reports which employers are benefits under title II of the Act, he or necessary facts, and provide the required to file annually with SSA. As she must transmit to the individual any information. We expect that annually required by IRS regulations at 26 CFR information, as reported by the there will be 2,280 requesters of pension 301.6011–2, employers who file 250 or employer, regarding any deferred vested plan information. Therefore, the annual Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42433 reporting burden is expected to be 1,140 Then, the special number will be if pre-1987 coverage is obtained. SSA hours. If you have any comments or assigned and used for reporting the pre- will inform the appropriate State or suggestions on this estimate, write to the 1987 wages to SSA. The special number interstate instrumentality official of the Social Security Administration, ATTN: will also be assigned to an interstate assigned number by sending a Form Reports Clearance Officer, 1–A–21 instrumentality if pre-1987 coverage is SSA–214–CD, ‘‘Notice of Identifying Operations Building, Baltimore, MD obtained and SSA will send a Form Number.’’ 21235, and to the Office of Management SSA–214–CD to the interstate 3. A new § 422.114 is added to read and Budget, Paperwork Reduction instrumentality to notify it of the as follows: number assigned. Project (0960–NEW), Washington, DC § 422.114 Annual wage reporting process. 20503. * * * * * (a) General. Under the authority of (e) Use. For wages paid prior to 1987, (Catalog of Federal Domestic Assistance section 232 of the Act, SSA and IRS the employer shall show the appropriate Program Nos. 96.001 Social Security- have entered into an agreement that sets SSA-issued identifying number, Disability Insurance; 96.002 Social Security- forth the manner by which SSA and IRS Retirement Insurance; 96.004 Social Security- including any coverage group or payroll will ensure that the processing of Survivors Insurance.) record unit number, on records, reports, employee wage reports is effective and returns, and claims to report wages, List of Subjects efficient. Under this agreement, adjustments, and contributions. 20 CFR Part 404 employers are instructed by IRS to file PART 422ÐORGANIZATION AND annual wage reports with SSA on paper Administrative practice and PROCEDURES Forms W–2, ‘‘Wage and Tax Statement,’’ procedure, Blind, Disability benefits, and Forms W–3, ‘‘Transmittal of Income Old-Age, Survivors, and Disability Subpart BÐ[Amended] and Tax Statements,’’ or equivalent W– Insurance, Reporting and recordkeeping 2 and W–3 magnetic media reports. requirements, Social Security. 1. The authority citation for subpart B Special versions of these forms for 20 CFR Part 422 of part 422 is revised to read as follows: Puerto Rico, Guam, American Samoa, Authority: Secs. 205, 232, 1102, 1131, and the Virgin Islands, and the Administrative practice and 1143 of the Social Security Act (42 U.S.C. Commonwealth of the Northern Mariana procedure, Freedom of information, 405, 432, 1302, 1320b–1, and 1320b–13). Islands are also filed with SSA. SSA Organization and functions processes all wage reporting forms for (Government agencies), Social security. 2. Section 422.112 is revised to read as follows: updating to SSA’s earnings records and Dated: July 27, 1995. IRS tax records, identifies employer Shirley Chater, § 422.112 Employer identification reporting errors and untimely filed numbers. Commissioner of Social Security. forms for IRS penalty assessment action, (a) General. Most employers are and takes action to correct any reporting For the reasons set out in the required by section 6109 of the Internal errors identified, except as provided in preamble, we are amending subpart M Revenue Code and by Internal Revenue paragraph (c) of this section. SSA also of part 404 and subpart B of part 422 of Service (IRS) regulations at 26 CFR processes Forms W–3c, ‘‘Transmittal of 20 CFR chapter III as follows: 31.6011(b)–1 to obtain an employer Corrected Income Tax Statements,’’ and PART 404ÐFEDERAL OLD-AGE, identification number (EIN) and to W–2c, ‘‘Statement of Corrected Income SURVIVORS AND DISABILITY include it on wage reports filed with and Tax Amounts’’ (and their magnetic INSURANCE (1950± ) SSA. A sole proprietor who does not media equivalents) that employers are pay wages to one or more employees or required to file with SSA when certain Subpart MÐ[Amended] who is not required to file any pension previous reporting errors are discovered. or excise tax return is not subject to this (b) Magnetic media reporting 1. The authority citation for subpart M requirement. To apply for an EIN, requirements. Under IRS regulations at of part 404 continues to read as follows: employers file Form SS–4, ‘‘Application 26 CFR 301.6011–2, employers who file Authority: Secs. 205, 210, 218, and 1102 of for Employer Identification Number,’’ 250 or more W–2 wage reports per year the Social Security Act; 42 U.S.C. 405, 410, with the IRS. For the convenience of must file them on magnetic media in 418, and 1302; sec. 12110 of Pub. L. 99–272, employers, Form SS–4 is available at all accordance with requirements provided 100 Stat. 287; sec. 9002 of Pub. L. 99–509, SSA and IRS offices. Household in SSA publications, unless IRS grants 100 Stat. 1970. employers, agricultural employers, and the employer a waiver. Basic SSA 2. Section 404.1220 is amended by domestic corporations which elect requirements are set out in SSA’s revising paragraphs (a) and (e) to read as social security coverage for employees Technical Instruction Bulletin No. 4, follows: of foreign subsidiaries who are citizens ‘‘Magnetic Media Reporting.’’ Special or residents of the U.S. may be assigned filing requirements for U.S. territorial § 404.1220 Identification numbers. an EIN by IRS without filing an SS–4. employers are set out in SSA Technical (a) State and local government. When (b) State and local governments. To Instruction Bulletins No. 5 (Puerto a State submits a modification to its facilitate a State’s bookkeeping, SSA Rico), No. 6 (Virgin Islands), and No. 7 agreement under section 218 of the Act, will assign a special identification (Guam and American Samoa). At the SSA will assign a special identification number to each political subdivision end of each year, SSA mails these number to each political subdivision included in a modification to the State’s technical instructions to employers (or included in that modification. SSA will agreement under section 218 of the Act. third parties who file wage reports on inform the State of the special These numbers are not used for their behalf) for their use in filing wage identification number(s) by sending a reporting purposes unless coverage is reports for that year. Form SSA–214–CD, ‘‘Notice of extended to periods prior to 1987. Then, (c) Processing late and incorrect Identifying Number,’’ to the State. These the special number will be assigned and magnetic media wage transmittals. If an numbers are assigned only for State used for reporting the pre-1987 wages to employer’s transmittal of magnetic bookkeeping purposes unless coverage SSA. This special number will also be media wage reports is received by SSA is extended to periods prior to 1987. assigned to an interstate instrumentality after the filing due date, SSA will notify 42434 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations IRS of the late filing so that IRS can wage reports after the due date, SSA will write to the employer and request decide whether to assess penalties for will notify IRS of the late filing so that the missing or corrected employee late filing, pursuant to section 6721 of IRS can decide whether to assess information. SSA notifies IRS of all the Internal Revenue Code. If reports do penalties for late filing, pursuant to wage reports filed without employee not meet SSA processing requirements section 6721 of the Internal Revenue social security numbers so that IRS can (unprocessable reports) or are out of Code. SSA will ask an employer to decide whether to assess penalties for balance on critical money amounts, SSA provide replacement forms for illegible, erroneous filing, pursuant to section will return them to the employer to incomplete, or clearly erroneous paper 6721 of the Internal Revenue Code. If an correct and resubmit. In addition, reporting forms, or will ask the individual reports self-employment beginning with wage reports filed for tax employer to provide information income to IRS without a social security year 1993, if 90 percent or more of an necessary to process the reports without number or with a different name or employer’s magnetic media wage having to resubmit corrected forms. (For social security number than shown in reports have no social security numbers wage reports where earnings are SSA’s records, SSA will write to the or incorrect employee names or social reported without a social security individual and request the missing or security numbers so that SSA is unable number or with an incorrect name or corrected information. If the employer, to credit their wages to its records, SSA social security number, see § 422.120.) If employee, or self-employed individual will not attempt to correct the errors, an employer fails to provide legible, does not provide the missing or but will instead return the reports to the complete, and correct W–2 reports corrected report information in response employer to correct and resubmit (see within 45 days, SSA may identify the to SSA’s request, the wages or self- also § 422.120(b)). An employer must employers to IRS for assessment of employment income cannot be correct and resubmit incorrect and employer reporting penalties. identified and credited to the proper unprocessable magnetic media wage (f) Reconciliation of wage reporting individual’s earnings records. In such reports to SSA within 45 days from the errors. After SSA processes wage cases, the information is maintained in date of the letter sent with the returned reports, it matches them with the a ‘‘Suspense File’’ of uncredited report. Upon request, SSA may grant the information provided by employers to earnings. Subsequently, if identifying employer a 15-day extension of the 45- the IRS on Forms 941, ‘‘Employer’s information is provided to SSA for an day period. If an employer does not Quarterly Federal Tax Return,’’ for that individual whose report is recorded in submit corrected reports to SSA within tax year. Based upon this match, if the the Suspense File, the wages or self- the 45-day (or, if extended by SSA, 60- total social security or medicare wages employment income then may be day) period, SSA will notify IRS of the reported to SSA for employees is less credited to his or her earnings record. late filing so that IRS can decide than the totals reported to IRS, SSA will (b) Returning incorrect reports. SSA whether to assess a penalty. If an write to the employer and request may return to the filer, unprocessed, an employer timely resubmits the reports corrected reports or an explanation for employer’s annual wage report as corrected magnetic media reports, but the discrepancy. If the total social they are unprocessable or out of balance submittal if 90 percent or more of the security or medicare wages reported to wage reports in that submittal are on W–2 money totals, SSA will return SSA for employees is more than the the resubmitted reports for the second unidentified or incorrectly identified. In totals reported to IRS, IRS will resolve such instances, SSA will advise the filer and last time for the employer to correct the difference with the employer. If the and return to SSA. SSA will enclose to return corrected wage reports within employer fails to provide SSA with 45 days to avoid any possible IRS with the resubmitted and returned corrected reports or information that forms a letter informing the employer penalty assessment for failing to file shows the wage reports filed with SSA correct reports timely with SSA. (See that he or she must correct and return are correct, SSA will ask IRS to the reports to SSA within 45 days or be also § 422.114(c).) Upon request, SSA investigate the employer’s wage and tax may grant the employer a 15-day subject to IRS penalties for late filing. reports to resolve the discrepancy and to (d) Paper form reporting extension of the 45-day period. assess any appropriate reporting requirements. The format and wage 5. A new § 422.122 is added to read penalties. reporting instructions for paper forms as follows: are determined jointly by IRS and SSA. § 422.115 [Removed] Basic instructions on how to complete § 422.122 Information on deferred vested 4. Section 422.115 is removed. pension benefits. the forms and file them with SSA are 5. Section 422.120 is revised to read provided in IRS forms materials as follows: (a) Claimants for benefits. Each available to the public. In addition, SSA month, SSA checks the name and social provides standards for employers (or § 422.120 Earnings reported without a security number of each new claimant third parties who file wage reports for social security number or with an incorrect for social security benefits or for them) to follow in producing completed employee name or social security number. hospital insurance coverage to see reporting forms from computer software; (a) Correcting an earnings report. If an whether the claimant is listed in SSA’s these standards appear in SSA employer reports an employee’s wages electronic pension benefit record. This publication, ‘‘Software Specifications to SSA without the employee’s social record contains information received and Edits for Annual Wage Reporting.’’ security number or with a different from IRS on individuals for whom Requests for this publication should be employee name or social security private pension plan administrators sent to: Social Security Administration, number than shown in SSA’s records for have reported to IRS, as required by Office of Financial Policy and him or her, SSA will write to the section 6057 of the Internal Revenue Operations, Attention: AWR Software employee at the address shown on the Code, as possibly having a right to Standards Project, P.O. Box 17195, wage report and request the missing or future retirement benefits under the Baltimore, MD 21235. corrected information. If the wage report plan. SSA sends a notice to each new (e) Processing late and incorrect paper does not show the employee’s address claimant for whom it has pension form reports. If SSA receives paper form or shows an incomplete address, SSA benefit information, as required by Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42435 section 1131 of the Act. If the claimant DEPARTMENT OF HEALTH AND of the act (21 U.S.C. 355) and 21 CFR filed for the lump-sum death payment HUMAN SERVICES part 314. In the absence of an approved on the social security account of a application, products for this use also relative, SSA sends the claimant the Food and Drug Administration would be misbranded under section 502 pension information on the deceased of the act (21 U.S.C. 352). The agency 21 CFR Part 310 individual. In either case, SSA sends the also stated that, in appropriate notice after it has made a decision on [Docket No. 77N±334S] circumstances, a citizen petition to the claim for benefits. The notice shows RIN 0905±AA06 establish a monograph may be the type, payment frequency, and submitted under § 10.30 (21 CFR 10.30) amount of pension benefit, as well as Topical Drug Products for Over-the- in lieu of an application. the name and address of the plan Counter Human Use; Products for the Subsequently, Buc Levitt & Beardsley, administrator as reported to the IRS. Prevention of Swimmer's Ear and for on behalf of Del Pharmaceuticals, Inc., This information can then be used by the Drying of Water-Clogged Ears; filed a citizen petition (Ref. 1) to: (1) the claimant to claim any pension Partial Stay of Final Rule Permit the marketing of 95 percent benefits still due from the pension plan. isopropyl alcohol in 5 percent AGENCY: Food and Drug Administration, anhydrous glycerin for the drying of HHS. (b) Requesting deferred vested water-clogged ears, and (2) remove pension benefit information from SSA ACTION: Final rule; partial stay of glycerin, anhydrous glycerin, and files. Section 1131 of the Act also regulation. isopropyl alcohol from the list of active requires SSA to provide available SUMMARY: ingredients in § 310.545(a)(15)(ii) (21 pension benefit information on request. The Food and Drug Administration (FDA) is staying part of CFR 310.545(a)(15)(ii)). This petition SSA will provide this pension benefit a final rule that established that any included the results of a double- information only to the individual who over-the-counter (OTC) topical otic drug blinded, 3-arm parallel study to evaluate has the pension coverage (or a legal products for the prevention of the efficacy and tolerability of isopropyl guardian or parent, in the case of a swimmer’s ear or for the drying of alcohol in drying water-clogged ears in minor, on the individual’s behalf). water-clogged ears is not generally 90 adult volunteers. Buc Levitt & However, if the individual is deceased, recognized as safe and effective and is Beardsley, on behalf of Del the information may be provided to misbranded. This action, which is being Pharmaceuticals, Inc., also filed a someone who would be eligible for any taken in response to new clinical data petition (Ref. 2), pursuant to 21 CFR underpayment of benefits that might be and a petition for stay of action, applies 10.35, requesting a stay of the August due the individual under section 204(d) only to topical otic drug products for the 15, 1995, effective date of the final rule of the Act. All requests for such drying of water-clogged ears. This action to allow time for the agency to review information must be in writing and is part of the ongoing review of OTC the results of the new study. should contain the following drug products conducted by FDA. The agency reviewed the results of information: the individual’s name, EFFECTIVE DATE: June 22, 1995. this study and determined that 95 social security number, date of birth, FOR FURTHER INFORMATION CONTACT: percent isopropyl alcohol in a 5 percent and any information the requestor may William E. Gilbertson, Center for Drug anhydrous glycerin base is safe and have concerning the name of the Evaluation and Research (HFD–810), effective for OTC use for drying water- pension plan involved and the month Food and Drug Administration, 5600 clogged ears. The agency’s detailed and year coverage under the plan ended; Fishers Lane, Rockville, MD 20857, comments and evaluations of this study the name and address of the person to 301–594–5000. are on file in the Dockets Management whom the information is to be sent; and SUPPLEMENTARY INFORMATION: Branch (Ref. 3). the requester’s signature under the I. Background On June 22, 1995, FDA agreed to stay following statement: ‘‘I am the the effective date of the final rule for In the Federal Register of August 8, individual to whom the information OTC swimmer’s ear and the drying of 1986 (51 FR 28656), the agency applies (or ‘‘I am related to the water-clogged ear drug products (Ref. 4). published a final rule establishing individual as his or her llllll’’). The agency intends to propose to amend conditions under which OTC topical I know that if I make any representation the final monograph for OTC topical otic drug products are generally which I know is false to obtain otic drug products to include conditions recognized as safe and effective. That information from Social Security under which drug products for the final rule applied only to earwax records, I could be punished by a fine drying of water-clogged ears are removal aids. Products for the or imprisonment or both.’’ Such generally recognized as safe and prevention of swimmer’s ear and for the requests should be sent to: Social effective and not misbranded. drying of water-clogged ears were not Security Administration, Office of considered by the agency at that time. The agency has determined that the Central Records Operations, P.O. Box In the Federal Register of February stay of action applies only to topical otic 17055, Baltimore, Maryland 21235. 15, 1995 (60 FR 8916), the agency drug products for the drying of water- declared that OTC drug products clogged ears. The new study did not [FR Doc. 95–19501 Filed 8–15–95; 8:45 am] containing active ingredients for the involve the prevention of swimmer’s BILLING CODE 4190±29±P prevention of swimmer’s ear or for the ear. Therefore, the August 15, 1995, drying of water-clogged ears were new effective date for § 310.545(a)(15)(ii) drugs under section 201(p) of the remains in effect for topical otic drug Federal Food, Drug, and Cosmetic Act products for the prevention of (the act) (21 U.S.C. 321(p)). To be swimmer’s ear. The August 15, 1995, marketed, such products would require effective date is stayed only for topical an application or abbreviated otic drug products for the drying of application approved under section 505 water-clogged ears. 42436 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations II. References DEPARTMENT OF JUSTICE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT The following references are on Drug Enforcement Administration display in the Dockets Management Office of the Assistant Secretary for Branch (HFA–305), Food and Drug 21 CFR Parts 1309 and 1310 Housing-Federal Housing Administration, rm. 1–23, 12420 Commissioner Parklawn Dr., Rockville, MD 20857, and [DEA No. 112C] may be seen by interested persons 24 CFR Part 1710 Implementation of the Domestic between 9 a.m. and 4 p.m., Monday [Docket No. FR±3925±N±01] through Friday. Chemical Diversion Control Act of (1) Citizen’s Petition, Buc Levitt & 1993 (PL 103±200); Correction Interstate Land Sales Registration Beardsley, filed on behalf of Del AGENCY: Drug Enforcement ProgramÐNotice of Order of Pharmaceuticals, Inc., coded CP1, Docket No. Administration (DEA), Justice. Withdrawal of State Certification for 77N–334S, Dockets Management Branch. State of Georgia ACTION: Correction to final regulations. (2) Citizen’s Petition to Stay Action, Buc AGENCY: Office of the Assistant Levitt & Beardsley, filed on behalf of Del SUMMARY: This document contains Pharmaceuticals, Inc., coded PSA 1, Docket Secretary for Housing-Federal Housing corrections to the final regulations Commissioner, HUD. No. 77N–334S, Dockets Management Branch. which were published on Thursday, ACTION: Notice of Order of Withdrawal (3) Letter from W. E. Gilbertson, FDA, to June 22, 1995 (60 FR 32447). The of State Certification for Georgia. Buc Levitt & Beardsley, attorneys for Del regulations related to the registration, Pharmaceuticals, Inc., coded LET 12, Docket recordkeeping and reporting SUMMARY: A special feature of the No. 77N–334S, Dockets Management Branch. requirements for manufacturers, (4) Letter from W. E. Gilbertson, FDA to Interstate Land Sales Full Disclosure distributors, importers and exporters of Act, permits subdivisions to be Buc Levitt & Beardsley, attorneys for Del listed chemicals. Pharmaceuticals, Inc., coded LET 13, Docket registered under the Act through a State No. 77N–334S, Dockets Management Branch. EFFECTIVE DATE: August 21, 1995. Certification Program. Due to changes in FOR FURTHER INFORMATION CONTACT: G. Georgia law, the State of Georgia, which List of Subjects in 21 CFR Part 310 Thomas Gitchel, Chief, Liaison and had been one of five certified States, has withdrawn from the certification Administrative practice and Policy Section, Office of Division Control, Drug Enforcement program, effective July 1, 1995. procedure, Drugs, Labeling, Medical Administration, Washington, DC 20537, DATES: In accordance with HUD devices, Reporting and recordkeeping Telephone (202) 307–7297. regulations, HUD’s acceptance of all requirements. SUPPLEMENTARY INFORMATION: The final Georgia Certified Registrations expires Therefore, under the Federal Food, regulations that are the subject of these 90 days after the date of publication in Drug, and Cosmetic Act and under corrections implement the Domestic the Federal Register. Unless a registrant authority delegated to the Commissioner Chemical Diversion Control Act of 1993 submits a modified registration in of Food and Drugs, 21 CFR part 310 is (PL 103–200) (DCDCA). The regulations accordance with this Notice or requests amended as follows: amend Title 21, Code of Federal a voluntary suspension of its Regulations, to add a new Part 1309 and registration, its registration will be PART 310ÐNEW DRUGS revise certain sections in Parts 1310, terminated at the end of the 90-day 1313 and 1316. As published, the final period. 1. The authority citation for 21 CFR regulations contain errors that could FOR FURTHER INFORMATION CONTACT: part 310 continues to read as follows: cause confusion in the regulated Maurice D. Gulledge, Acting Director, Authority: Secs. 201, 301, 501, 502, 503, industry. Interstate Land Sales Registration 505, 506, 507, 512–16, 520, 601(a), 701, 704, Accordingly, the publication on June Division, Office of Housing, Room 9160, 705, 721 of the Federal Food, Drug, and 22, 1995 of the final regulations to Department of Housing and Urban Cosmetic Act (21 U.S.C. 321, 331, 351, 352, implement the DCDCA, which were the Development, 451 Seventh Street SW., 353, 355, 356, 357, 360b–360f, 360j, 361(a), subject of Federal Register Document Washington, DC 20410; telephone (202) 371, 374, 375, 379e; secs. 215, 301, 302(a) 95–14978, is corrected as follows: 708–0502, ext. 2073 or (202) 708–4594 351, 354–360F of the Public Health Service (TDD). § 1309.02 [Corrected] Act (42 U.S.C. 216, 241, 242(a), 262, 263b– SUPPLEMENTARY INFORMATION: The 263n). 1. On page 32455, in the first column, Secretary may certify a State disclosure in section 1309.02, paragraphs (f) § 310.545 [Partial stay] equivalency pursuant to subpart C of 24 through (h) are redesignated as CFR part 1710. Five States, Arizona, 2. Section 310.545 Drug products paragraphs (e) through (g). California, Florida, Georgia and containing certain active ingredients § 1310.04 [Corrected] Minnesota, have been participating in offered over-the-counter (OTC) for 2. On page 32461, in the first column HUD’s certification program. Georgia is certain uses is stayed in paragraph at the top, in section 1310.04, the first state to withdraw from this (a)(15)(ii) only for topical otic drug paragraphs (f)(1)(xxii) and (f)(1)(xxiii) certification program. The benefit of products for the drying of water-clogged are redesignated as paragraphs (f)(1)(xxi) certification is that a developer ears. and (f)(1)(xxii). operating in compliance with a certified state’s law does not have to file a Dated: August 7, 1995. Dated: July 28, 1995. comprehensive, duplicate registration William K. Hubbard, Stephen H. Greene, with HUD. Thus, once the Secretary has Acting Deputy Commissioner for Policy. Deputy Administrator, Drug Enforcement certified a State’s land sales program, [FR Doc. 95–20315 Filed 8–15–95; 8:45 am] Administration. the developer of a subdivision located BILLING CODE 4160±01±F [FR Doc. 95–20108 Filed 8–15–95; 8:45 am] in that state may satisfy the Federal BILLING CODE 4410±09±M registration requirements of the Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42437 Interstate Land Sales Full Disclosure notifying them of changes in Georgia’s Under SMCRA, OSM works with States Act, 15 U.S.C. 1701 et seq., by filing regulation of land sales development, to ensure that coal mines are operated with HUD a certified copy of the state’s effective July 1, 1995, pursuant to in a manner that protects citizens and disclosure report. Georgia House Bills 621 and 622. This the environment during mining, that the Under 24 CFR 1710.508(a), HUD’s Notice of Order of Withdrawal of State land is restored to beneficial use acceptance of Georgia’s Certified Certification for the State of Georgia will following mining, and that the effects of Registration will expire 90 days after the be sent to the same parties. past mining at abandoned coal mines date of this notice, unless a Georgia The above constitutes the Order of are mitigated. registrant files a registration request Withdrawal referred to in 24 CFR Many coal-producing States, with HUD by that date. Under the Act, 1710.508(a) with respect to the State of including West Virginia, have sought unless subdivision sales are exempt by Georgia’s certification under the and obtained approval from the statute or regulation, the subdivision Interstate Land Sales Full Disclosure Secretary of the Interior to carry out must be effectively registered with HUD Act. SMCRA’s requirements within their borders. In becoming the primary before the developer may offer to sell or Authority: 15 U.S.C. 1708. lease any lots. enforcers of SMCRA, these ‘‘primacy’’ HUD will try to minimize the burden Dated: August 7, 1995. States accept a shared responsibility on Georgia developers by accepting Nicolas P. Retsinas, with OSM to achieve the goals of the much of the former Georgia State Assistant Secretary for Housing-Federal Act. Such States join with OSM in a registration. A Georgia registrant Housing Commissioner. shared commitment to the protection of previously registered under the State [FR Doc. 95–20091 Filed 8–15–95; 8:45 am] citizens—our primary customers—from Certification Program that wants to BILLING CODE 4210±27±M abusive mining practices, to be maintain its Federal registration, must responsive to their concerns, and to submit, within 90 days after this Notice, allow them full access to information a modified Statement of Record that DEPARTMENT OF THE INTERIOR needed to evaluate the effects of mining includes (1) a current Property Report on their health, safety, general welfare, and (2) an Affirmation pursuant to the Office of Surface Mining Reclamation and property. This commitment also instructions found at 24 CFR and Enforcement recognizes the need for clear, fair, and § 17120.219. There will be no fees consistently applied policies that are 30 CFR Part 948 required for these changes. The Property not unnecessarily burdensome to the Report must be modified to include the West Virginia Regulatory Program coal industry—producers of an following changes: important source of our Nation’s energy. 1. A revised cover page pursuant to AGENCY: Office of Surface Mining Under SMCRA, OSM sets minimum the instructions found at 24 CFR Reclamation and Enforcement (OSM), regulatory and reclamation standards. 1710.105; Interior. Each primacy State ensures that coal 2. A revised Agent, Certification and ACTION: Final rule; approval of mines are operated and reclaimed in Cancellation page pursuant to amendment. accordance with the standards in its instructions found at 24 CFR 1710.118; approved State program. The States 3. Deletion of the Supplemental SUMMARY: OSM is approving an serve as the front-line authorities for Receipt for Georgia purchasers; and, amendment to the West Virginia implementation and enforcement of 4. Deletion of any other information permanent regulatory program under SMCRA, while OSM maintains a State that is no longer applicable due to the Surface Mining Control and performance evaluation role and changes in Georgia law. Reclamation Act of 1977 (SMCRA). The provides funding and technical Once these above mentioned amendment concerns West Virginia’s assistance to States to carry out their materials are accepted by the regulations for the design and approved programs. OSM also is Department, a new effective date will be construction of durable rock fills. The responsible for taking direct issued for the registration. Developers amendment will revise the West enforcement action in a primacy State, are reminded that within 30 days of Virginia program to be consistent with if needed, to protect the public in cases each anniversary date of the new SMCRA and the Federal regulations. of imminent harm or, following effective date, the registrant must EFFECTIVE DATE: August 16, 1995. appropriate notice to the State, when a submit to the Department an Annual State acts in an arbitrary and capricious FOR FURTHER INFORMATION CONTACT: Mr. Report of Activity accompanied by the James C. Blankenship Jr., Director, manner in not taking needed prescribed fee (see 24 CFR 1710.310). Charleston Field Office, Office of enforcement actions required under its Within 120 days after the close of the Mining Reclamation and Enforcement, approved regulatory program. Currently there are 24 primacy states developer’s fiscal year, the developer 1027 Virginia Street East, Charleston, that administer and enforce regulatory shall submit financial statements West Virginia 25301, Telephone: (304) programs under SMCRA. These states meeting the standards of 24 CFR 347–7158. 1710.212(c) to the Department. may amend their programs, with OSM In addition, any additional changes in SUPPLEMENTARY INFORMATION: approval, at any time so long as they material fact must be made in I. Background on the West Virginia Program remain no less effective than Federal II. Submission of the Amendment conformance with the Interstate Land III. Director’s Findings regulatory requirements. In addition, Sales Full Disclosure Act and its IV. Summary and Disposition of Comments whenever SMCRA or implementing implementing Regulations. For purposes V. Director’s Decision Federal regulations are revised, OSM is of these filings, Georgia developers need VI. Procedural Determinations required to notify the States of the only update the particular sections of changes so that they can revise their the Property Report and supply any I. Background on the West Virginia programs accordingly to remain no less required supporting documentation. Program effective than the Federal requirements. Charles Clark, Georgia Real Estate SMCRA was passed in 1977 to A major goal of SMCRA is to ensure Commissioner, sent a letter, dated May address environmental and safety adequate reclamation of all areas 8, 1995, to all interested parties, problems associated with coal mining. disturbed by surface coal mining. 42438 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations During reclamation, the removal of coal compliance with effluent limits or water Virginia proposes to require a more is followed by backfilling the mine pit quality standards. detailed certification, the Director finds with spoil to return the land to its • Prohibit certain materials from that subsection 14.14(b)(4) is consistent approximate original contour. There is being placed in durable rock fills. with the Federal rules and is hereby usually more spoil than is needed for OSM announced receipt of the approved. backfilling because solid rock that was proposed amendment in the August 12, B. CSR § 38–2–14.14(g)(1)(B) Testing of removed when the mine pit was 1993, Federal Register (58 FR 42903) excavated increases in volume. This and invited public comment on its Fill Materials excess rock is typically disposed of as adequacy. Following this initial State and Federal regulations for fills in valleys adjacent to the mine pit. comment period, WVDEP revised the durable rock fills require that no more A ‘‘durable rock fill’’ is an excess spoil amendment on September 1, 1994, and than 20 percent of the volume of the fill fill composed of at least 80 percent by May 16, 1995 (Administrative Record may be spoil material that is not durable volume of sandstone, limestone, or Nos. WV–937, and WV–979B). OSM rock as determined by tests performed other rocks that do not slake in water. reopened the comment period on by a registered engineer and approved It is usually constructed in a single lift August 31, 1994 (59 FR 44593), by the regulatory authority. Durable or layer and has an underdrain system September 29, 1994 (59 FR 49619), and rock is material that will not slake in that is created by the natural segregation July 5, 1995 (60 FR 34934), and held a water and will not degrade to soil of rock and soil as it is dumped and public hearing in Charleston, West material. West Virginia proposes to add rolls downslope. Virginia on September 7, 1993, and a a provision at subsection 14.14(g)(1)(B) Background information on the West public meeting on October 27, 1994. that defines soil material, as used in the Virginia program, including the definition of durable rock, as material of Secretary’s findings, the disposition of III. Director’s Findings which at least 50 percent is finer than comments, and the conditions of A. CSR § 38–2–14.14(b)(4) Certification 0.074 millimeters, which exhibits approval can be found in the January 21, of Durable Rock Fills plasticity, and which meets the criteria 1981, Federal Register (46 FR 5915). West Virginia proposes to add a for group symbol ML, CL, OL, MH, CH, Subsequent actions concerning the provision requiring that certification or OH, as determined by the Unified conditions of approval and program forms, submitted to WVDEP by Soil Classification System (ASTM D– amendments can be found at 30 CFR registered professional engineers 2487). In support of this amendment, 948.10, 948.12, 948.13, 948.15, and overseeing the construction of durable the WVDEP submitted to OSM a durable 948.16. rock fills, be accompanied by: (1) a rock testing protocol which the State II. Submission of the Amendment statement attesting that the fill contains would implement in applying its proposed regulations (Administrative In a series of three letters dated June no more than 20 percent non-durable material, (2) a statement attesting that Record No. WV–932). Under the 28, 1993, and July 30, 1993 protocol, rock is first checked for (Administrative Record Nos. WV–888, the foundation is proceeding in accordance with the design plans, (3) a durability by use of standard slake WV–889 and WV–893), the West durability tests. If a rock slakes in water, Virginia Division of Environmental statement that the prohibited materials are not being placed, deposited, or it is defined as non-durable, regardless Protection (WVDEP) submitted an of whether or not it degrades to soil amendment to its approved permanent disposed of into the fill areas, and (4) a statement that sediment control material. A rock which passes the slake regulatory program that included durability test may be further tested numerous revisions to the West Virginia measures are constructed and being maintained in accordance with the under subsection 14.14(g)(1)(B), on a Surface Coal Mining and Reclamation case-by-case basis, to determine whether Act (referred to herein as ‘‘the Act’’, approved design plans and the terms and conditions of the permit. it would potentially degrade to soil WVSCMRA § 22A–3–1 et seq.) and the particles exhibiting plasticity and West Virginia Surface Mining Under 30 CFR 816/817.73(c), the Federal rules require a qualified particle size below the specified limit. Reclamation Regulations (CSR § 38–2–1 The Federal rules do not define soil registered engineer to certify that the et seq.). OSM grouped the proposed material in the context of durable rock design of a durable rock fill will ensure revisions that concern durable rock fills fills or provide a testing protocol to the stability of the fill and meet all other into one amendment which is the determine if rock degrades to soil applicable requirements. Furthermore, subject of this notice. The main material. Since West Virginia’s protocol 30 CFR 816/817.71(h) requires provisions of the amendment will: adds a screening test for durable rock • inspections at least quarterly throughout Require that certification forms for not specifically required under the construction and during critical durable rock fills be accompanied by Federal regulations, the Director finds construction periods. Following each statements attesting to the percentage of that the proposed rule when applied in inspection, the qualified registered non-durable material, foundation conjunction with the State’s protocol is professional engineer must submit preparation, prohibited materials and no less effective than 30 CFR 816/ certified reports to the regulatory sediment control measures. 817.73(b) and is therefore approved. • Establish criteria for testing spoil authority attesting that the fill has been material to determine if it qualifies as constructed and maintained in C. CSR § 38–2–14.14(g)(8) Drainage durable rock. accordance with the approved plan and Control • Require surface water runoff from program requirements. The report must WVDEP is proposing to revise areas above and adjacent to the fill to be include appearances of instability, subsection 14.14(g)(8) to read as follows: diverted into channels designed and structural weakness, and other constructed to ensure stability of the fill, hazardous conditions. West Virginia’s Surface water runoff from areas above and adjacent to the fill shall be diverted into control erosion, and minimize water program already contains these properly designed and constructed stabilized infiltration. requirements. Other than described • diversion channels which have been Require additional sediment control above, the Federal rules do not specify designed, using best current technology, to measures if construction and operation that the certified report include specific safely pass the peak runoff from a 100-year, of the fill results in significant non- statements by the engineer. Since West 24-hour precipitation event. The channel Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42439 shall be designed and constructed to ensure constructed to minimize water Weighing the advantages and stability of the fill, control erosion, and infiltration. shortcomings of both methods of minimize water infiltration into the fill. An OSM ad hoc technical committee diversion construction, the Director The Federal rules at 30 CFR 816/ on excess spoil disposal considered the concludes that neither method is clearly 817.73(f) prohibit surface water runoff proposed amendment for technical more environmentally preferable than from areas adjacent to and above the fill sufficiency. The committee concluded the other. Therefore, the Director finds to flow onto the fill and require water that appropriate surface drainage proposed subsection 14.14(g)(8) to be no to be diverted into stabilized diversion control for durable rock fills can be less effective than 30 CFR 816/817.73(f) channels designed to safely pass the accomplished under the proposed West and he is approving it. runoff from a 100-year, 6-hour Virginia amendment. The amendment’s D. CSR § 38–2–14.14(g)(11) Sediment precipitation event. The Federal rule is proposed language and the other excess Control more restrictive than the proposed rule spoil provisions of the West Virginia with regard to the location of surface regulatory program provide clear WVDEP proposes to add a new drainage diversion channels relative to authority for WVDEP to require permit provision which states that additional the body of the fill. Under 30 CFR 816/ applications containing demonstrations storage capacity or sediment control 817.73(f), drainage diversion channels and technical analyses addressing measures may be required through must divert surface runoff from areas adequate hydraulic design—including permit revision if sediment removal adjacent to and above the fill away from channel capacity, erosion control, and during operation and construction of the fill is found to be deficient to the point the fill. Such channels must be located minimizing infiltration into the fill that significant non-compliance with either completely off of the fill or at the mass. The committee also considered applicable effluent limits and water interface of the natural slope and the that a proper channel design could quality standards results. In support of fill. West Virginia’s proposed overcome potential hydraulic problems this amendment WVDEP stated that the amendment would allow drainage from intersecting flows at channel and term ‘‘significant’’ refers to the NPDES diversion channels to be located terrace junctions, changes in channel permit and enforcement thereof and that anywhere, including on the fill itself, gradient, or anywhere hydraulic jump any failure to meet effluent limits provided that the channels are designed and/or overtopping would be likely to constitutes a violation and a notice of and constructed to ensure the stability occur. The committee recommended to non-compliance is issued of the fill, control erosion, and minimize WVDEP that a permittee show designs water infiltration into the fill. (Administrative Record No. WV–934). and specifications, based upon The proposed subsection has no Federal The Federal requirement to divert maximum design velocities, which runoff water away from durable rock counterpart. However, it is consistent would encompass riprap sizing, fills was adopted on March 13, 1979, as with 30 CFR 816/817.71(a)(1) which gradation, bedding, filters, and all permanent program rule 30 CFR requires that excess spoil be placed in channel material placement. The design 816.74(d). While there were no specific designated disposal areas in a manner to and specification should also address comments pertaining to diversions of minimize the adverse affects of leachate how infiltration will be minimized (e.g., water away from durable rock fills, and surface water runoff from the fill on through channel liners, etc.) and assure commenters stated, with regard to head- surface and ground waters. The Director that runoff adjacent to the channel can of-hollow fills, that stabilized diversion is hereby approving subsection enter the drainage diversion system channels ‘‘off of the fill’’ created an 14.14(g)(11). with a minimum of erosion. The unnecessary disturbance and that committee underscored the importance E. CSR § 38–2–14.14(g)(12) Prohibited channels on the fill could protect that Materials portion of the fill from erosion. In the that runoff not be allowed over the face preamble, OSM justified the of the fill in locations other than the WVDEP proposes to add a provision requirement by stating that ‘‘Diversion diversion channel. Finally, the which sets forth the materials that can of water away from the fill surface is committee provided WVDEP a series of not be placed, deposited, or disposed of considered sound engineering practice’’ recommendations on key areas of the in a durable rock fill or durable rock fill and cited several engineering references. durable rock fill drainage control system area. These prohibited materials include OSM concluded that, while more area that should be inspected during and surface soils except for surface soils will be disturbed where diversions are after fill construction (Administrative used to establish vegetation or surface placed off of the fill area, ‘‘less Record No. WV–1008). soils placed in the fill if accounted for environmental harm will result from In the absence of any clear in design and construction as retaining the requirement to build congressional intent, OSM evaluated nondurable materials and not placed in diversions off the fill structures.’’ (44 FR this amendment by comparing the critical zones. Other prohibited 15206). advantages and disadvantages of materials are mud, silt, or sediment; The intent of the Federal rule locating surface water diversions off of- vegetation or organic materials; non-coal prohibiting runoff diversion onto the and-on fills from a public safety and wastes; and coal refuse. There is no fill, as explained in the preamble, was environmental standpoint. The similar listing of materials prohibited to prevent water erosion of fill material perimeter or groin channels required from placement in durable rock fills in and infiltration into the fill. West under the Federal rules would likely the Federal rules. However, 30 CFR 816/ Virginia’s proposed rule, while not result in a larger disturbed area, greater 817.73(b) does require that at least 80 restricting the location of surface instability of the natural slope adjacent percent of the material in a fill be non- drainage diversion channels, to the fill and require more long-term acid and non-toxic-forming rock; 30 specifically requires control of erosion maintenance when compared to surface CFR 816/817.71(e) requires the removal and minimization of water infiltration, water diversions located on the fill of all vegetation and organic materials thus preserving the intent of the itself. However, surface diversions from the disposal area prior to corresponding Federal regulation. The located off the fill are less likely to placement of excess spoil; and 30 CFR proposed rule prohibits the diversion of result in erosion and in surface water 816/817.89(b) requires the final disposal water into or through the fill because infiltration to the fill mass than are and noncoal waste in a designated diversions must be designed and diversions located on the fill. disposal site in the permit area or a 42440 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations State approved solid waste disposal designed and constructed to ensure the AML project drainage control design area. Furthermore, 30 CFR 816/817.71(i) stability of the fill, control erosion, and options are very limited since fills are provides for the disposal of coal mine minimize water infiltration into the fill. in-place and site conditions may not be waste in excess spoil fills if approved by In the following section, OSM is suitable for diversion in natural ground. the regulatory authority and certain responding to all comments received, Excess spoil disposal designs provide conditions are met. Since West including those submitted in response greater flexibility since the fill location Virginia’s proposal does not allow to WVDEP’s July 30, 1993, and can be selected and the fill material has placement in durable rock fills of any September 1, 1994, proposals, even not yet been placed. Surface water material that is prohibited by the though these proposals were diversions on AML projects often Federal regulations, the Director finds subsequently revised on May 16, 1995. involve linings of concrete, grouted rip that subsection 14.14(g)(12) is no less History of durable rock performance: rap, or other less pervious material effective than the Federal rules and he Commenters reported that numerous which minimize surface drainage is hereby approving it. (up to about 4,000) excess spoil fills infiltration into the fill mass. Rarely do (including durable rock fills) have been mine operators line channels in a IV. Summary and Disposition of constructed in West Virginia over the similar manner. Comments past 20 to 25 years. Many of these are Future stability of durable rock fills: Public Comments durable rock fills. According to One commenter expressed hope that commenters, there are no documented ‘‘* * * future generations will put these The Director solicited public massive or structural failures among the fills to good use and will maintain comments and provided an opportunity fills. Commenters reported that surface drainage.’’ The objective of the for public hearings on the proposed problems identified have been minor Federal and State rules on excess spoil amendment. A public hearing was held and not unique to subsurface or center design and construction is to promote on September 7, 1993, and a public drains. The results of a 1994 WVDEP permanent stability for the long term meeting was held on October 27, 1994 survey of fills revealed no substantive protection of the environment, life, and (Administrative Records Nos. WV–906 difference in structural integrity among safety of future generations. The and WV–958). Comments on durable fills with different runoff diversion question of permanent stability is a rock fills were received from GAI systems. One commenter’s review of fundamental issue affecting OSM’s Consultants, Inc; Hobet Mining; Terra recent (1990–94) citizens’ complaints concerns about subsurface and center Engineers, Inc.; West Virginia Mining and WVDEP and OSM inspection drains. Destabilizing subsurface and Reclamation Association; West reports (July 1993–June 1994) supported processes such as piping, plugging, and Virginia Coal Association; West Virginia the apparent lack of failures or pore-water pressure build-up can take Highlands Conservancy; Pine Ridge significant problems with existing fills place over long periods of time without Coal Corporation; Burko Resources and and fills under construction in the state. being expressed on the surface. A key Eastern Association Coal Corporation. In response, OSM notes that the aspect underscoring this concern is the All comments received pertain to the similarity of earlier excess spoil absence of any fill maintenance drainage control provisions in CSR disposal practices in West Virginia to following bond release. § 38–2–14.14(g)(8) as first submitted to the present is uncertain. The oldest fills Some commenters contended that OSM on July 30, 1993, and revised on in West Virginia are much smaller than problems with fill stability are likely to September 1, 1994 (Administrative many of those currently under appear during, and are limited to, the Record Nos. WV–893 and WV–937). In construction, are primarily of the lift period of construction. They claimed the July 30, 1993, submission, WVDEP type and are influenced by smaller that, during construction, fill and proposed to delete the existing drainage areas. The more recent fills of foundation-soil consolidation is requirement that runoff from areas up to 100,000,000 cubic yards have yet incomplete; much of the non-durable above and adjacent to durable rock fills to stand the test of time, are constructed rock will already have degraded; the be prohibited from flowing onto the fill by end-dumping methods, and would outslope is at the angle of repose (i.e. and to add new language requiring typically experience significant runoff not yet graded to a more stable diversions to be designed and discharges from larger drainage areas. configuration); and, sediment constructed to pass runoff ‘‘around and Moreover, durable rock fills may production is greater than it will be through the fill.’’ This language was experience a greater runoff/sediment when revegetation becomes established. revised on September 1, 1994, to read influx due to the larger upslope Problems stemming from inadequate ‘‘around or through the fill.’’ OSM disturbed area found at modern-day drainage and a rising phreatic surface or objected to the design and construction mining operations. The WVDEP survey, free-water elevation will also occur soon of durable rock fills where surface water and the review of inspection records enough to be detected and remediated. runoff would be allowed to be diverted and citizens’ complaints would not One commenter also pointed out that ‘‘through the fill’’. However, all public necessarily reveal long-term subsurface future fill failures, if and when they take comments received were in support of problems. OSM is unaware of any place, will be limited to slumping of fill this provision. OSM, State and industry attempts to revisit sites of durable rock material into a more stable representatives met and developed new fills that are beyond bond release. configuration. The commenter said that, language tentatively acceptable to all Therefore, the comparisons drawn by under steep-slope and poor foundation parties. This was submitted to OSM on commenters between earlier head-of- conditions, flow slides would not occur, May 16, 1995 (Administrative Record hollow fills and present-day durable since one should not expect liquefaction No. WV–979B). When OSM reopened rock fills have limited value. in drained rock-fill material. the public comment period on July 5, Commenters cited evidence for the Presently, there is very little use and 1995, only one comment was received efficacy and safety of drainage systems maintenance of finished excess spoil on proposed CSR § 38–2–14.14(g)(8) on fills based on their successful use on fills. The postmining land use for which had been revised to allow abandoned-mine-land (AML) sites. A approximately 95 per cent of the fills is drainage diversion channels to be direct comparison of diversions on AML forest. Future utilization of land located anywhere, including on the fill coal refuse projects and active excess downstream of some fills in the form of itself, so long as the channels were spoil disposal areas is not possible. housing developments, farming, park Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42441 grounds, industrial facilities, etc. is TSR–6 (Transmittal Number 400, evidence that infiltration was not possible. However, there is no reason to November 10, 1987), which allows occurring. Another maintained that, assume that those using the land will perimeter ditches to be in contact with barring barriers to free drainage, have the knowledge or resources the fill mass, enhances differential infiltration will always be less than the available to address problems that may settlement and erosion. drainage capacity in a dumped rock fill, develop or to perform needed One commenter noted the annual especially due to the compaction of maintenance. What maintenance will maintenance requirements of perimeter near-surface materials during occur will partly depend on what will ditches around coal refuse construction. The latter commenter be observed. Problems with surface embankments as justification for further suggested that ‘‘. . . infiltration drainage systems are readily noticeable. channels on the fill mass. Another from the ditch could be minimized by This is not true for subsurface drains. compared fills constructed with means of a compacted zone of well- Since OSM cannot assume that future perimeter drains to those using center graded rockfill in which the voids are generations will assume the liability for drains, claiming that the former fill type completely choked with rock fines.’’ diversion maintenance, conservative experiences more problems with erosion OSM’s position, in approval of this performance standards maximizing and water penetration into the fill mass. amendment, is that center drains are long-term diversion effectiveness are OSM concurs that perimeter ditches— conditionally acceptable. It must be necessary. and other kinds of drainage diversion pointed out that barriers to free drainage There are no guarantees that most fill ditches—can and, in fact, do have in a constructed channel are difficult to problems will occur during maintenance problems. However, the avoid. Because durable rockfill construction. The benefits of fill/ problems are commonly the result of construction is typified by less- foundation consolidation and regrading inadequate site investigation, design, or permeable fine material in the upper can be counteracted by increases in the construction and not necessarily an reaches of the fill mass, OSM agrees that fill-mass weight (by addition of fill inherent condition of all surface drains. a potentially workable method for material or moisture during Proper investigation of the proposed minimizing seepage from a center construction); or addition of moisture diversion location, careful planning and channel is the construction of a after bond release. The claim that design, along with careful construction compacted zone of well-graded rockfill. degradation will be limited to the time should alleviate many problems Subsurface drainage systems: One of durable-rock-fill construction lacks commonly encountered in the field. As commenter cited the results of his flow- supporting data. Forces working within for problems that may not be avoided through model study in support of the the fill during consolidation, and action over the long term (geologic State’s original proposal for surface of water within the fill, can further degradation), surface drains still have an drainage through fills which was degrade the fill following construction. important advantage over subsurface subsequently withdrawn from further Sediment entering internal drainage drains since problems can be easily consideration. The commenter systems may not be adequately detected as they develop. Where a site concluded that the laboratory bench- controlled by the amount of vegetation investigation predicts the establishment scale test proved that a durable rock fill on the fill or mine-site surface following of an effective surface drainage system is capable of internally passing 24-hour, bond release. Sites of natural landslides to be prohibitively difficult, rejection of 100-year storm events. The commenter are commonly considered to be prone to the site may be the best course of action. stated that a draw-down of water level additional slides. The same can be said OSM Directive TSR–6 permits contact occurred in the model as flow for initial slumps or slides on a between perimeter drainage channels approached the toe of the simulated fill. constructed fill. Also, even limited or and fill material. While there is some The commenter also pointed out that local slumps could result in more than potential for differential settlement flow through rock voids seldom exceeds limited consequences, depending on the beneath interface channels, OSM does three feet per second but can reach concurrent usage of the site. Finally, not agree that the risk of this happening many times this value in surface whether or not massive flow slides will is greater than for center drains. The perimeter ditches. Some commenters occur will depend on moisture thickness of fill material below the have argued against the potential conditions in the fill and long-term center channel is much greater, and occurrence of plugging in the subsurface strength characteristics of the material. assuming the fill material behaves drains by claiming that the end- It can take a long time for steady-state homogeneously during consolidation, dumping method produces a graded fill seepage levels to occur. Thus, the effects this location is more susceptible to that effectively prevents migration of of piping, plugging, and rising pore- differential settlement than interface fines. One commenter emphasized the water pressure may occur well beyond diversion channels. Furthermore, general absence of evidence for bond release. center-channel failure could result in plugging, stating that an autopsy of the Perimeter drainage channels: Several more erosion of the fill simply because simulated durable rock fill found only commenters in support of center and there is more fill above natural ground rock dust covering the rock particles subsurface drains for surface runoff at this location than beneath the and/or a minor accumulation of fines in control emphasized disadvantages interface channel. These concerns the bottom of the fill. The commenter associated with perimeter diversion highlight the importance of design and stated that there was no evidence that ditches. Some commenters cited the construction methods that ensure long- ‘‘* * * fines tended to migrate through effects of geologic degradation term channel stability and mitigate the fill.’’ Finally, the commenter (weathering and erosion of materials in erosion and water penetration into the suggested that fills with internal drains the channels, filling of the channels fill mass. may have the potential effect of flood from landslides or slumps from adjacent Center drainage channels: Two mitigation via runoff attenuation. The steep slopes); seepage of surface water commenters claimed that significant commenter stated that the model into the fill mass through underlying amounts of seepage into the fill mass outflow was ‘‘* * * a lot less than the colluvium; and, the difficulty in should not occur from surface water peak into it.’’ achieving effective positive drainage in flowing in center drains. One The commenter also responded to very long diversion ditches. Some commenter claimed to have observed OSM’s (September–December 1993) commenters stated that OSM Directive standing water in center drains as reviews of the model study. The reviews 42442 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations concentrated on comparing the model watersheds of Buffalo Creek, Logan proposed amendment from various with actual durable rock fills County; several issues of Green Lands Federal agencies with an actual or constructed in the field. The commenter Magazine; and ‘‘Embankment-Dam potential interest in the West Virginia asserted that the model was sufficiently Engineering’’ by Casagrande in 1973. program on four different occasions representative of real-life fills with The commenters also reference a 1984 (Administrative Record Nos. WV–891, respect to its materials, void ratio, OSM drilling project investigating fills WV–897, WV–936, and WV–942). particle gradation, and scale. The placed in greater than four-foot lifts that Comments were received from the U.S. commenter also disputed the OSM reported high calculated factors of safety Bureau of Land Management, the Mine contention that durable rock fills have (2.2–2.5) for these types of fills. Another Safety and Health Administration, the yet to be tested by a 24-hour, 100-year OSM project mentioned by a commenter U.S. Bureau of Mines, and the U.S. storm event. The commenter stated that is the Crown City Mining Company Army Corps of Engineers. These Federal the 1977 flood ‘‘* * * generally experimental practice of single-lift fills agencies acknowledged receipt of the recognized as a 100-year event over with structural faces in Gallia and amendment, but generally had no much of Southern West Virginia;’’ the Lawrence Counties, Ohio. According to comment or acknowledged that the 1985 flood over eastern and central the commenter, this was reported to be revisions were satisfactory. West Virginia ‘‘* * * considered to be a ‘‘short term success.’’ 500+ year event;’’ and, localized storms OSM has evaluated the above Environmental Protection Agency (EPA) ‘‘* * * equal to or greater than the 100 references and concluded that they do year 24 hour storm.’’ not specifically promote or support the Pursuant to 30 CFR 732.17(h)(11)(ii), Again, OSM’s position on routing diversion of surface runoff into OSM is required to obtain the written surface runoff through subsurface drains subsurface drainage systems in durable concurrence of the EPA with respect to is based on the potential, long-term and rock fills. The fills that were drilled by those provisions of the proposed not-readily-observed effects of piping OSM in 1984 were placed in multiple program amendment that relate to air or and plugging. Furthermore, it would lifts—a practice not comparable to end- water quality standards promulgated appear that the rock dust and minor dumping methods being considered in under the authority of the Clean Water sediment accumulation in the simulated this rulemaking. The results of the Act (33 U.S.C. 1251 et seq.) or the Clean fill could not have occurred without experimental practice in Ohio are not Air Act (42 U.S.C. 7401 et seq.). migration of fine material. The model applicable because the fills involved On July 2 and August 3, 1993 may not represent actual conditions placement of durable rock in a non- (Administrative Record Nos. WV–892 with respect to fine material. The steep-slope area and there was no and WV–896), OSM solicited EPA’s position that the end-dumping method routing of runoff through the fill. concurrence with the proposed Design flexibility: Several proponents prevents fines migration by producing a amendment. On October 17, 1994 of routing surface runoff into subsurface graded fill is conceptually feasible, but (Administrative Record No. WV–949), and center drains have contended that scientifically undocumented. EPA gave its written concurrence with The comments pertaining to a mine operator needs regulatory a condition based on subsection precipitation events in West Virginia are flexibility in order to design durable- 5.4(b)(4) of West Virginia’s regulations. at variance with available data. rock-fill drainage systems appropriate to This condition does not pertain to Construction of the earliest West site-specific conditions. A commenter durable rock fills which are the subject Virginia durable-rock fills commenced suggested that the requirement for fills of this rulemaking. around 1980. Hourly data recorded at to be designed by a professional stations throughout West Virginia since engineer experienced with earth and Pursuant to 30 CFR 732.17(h)(11)(i), 1980 do not show a 100-year, 24-hour rock fills should be a sufficient the Director solicited comments on the event nor multiples of such events. safeguard. Commenters said that proposed amendment from EPA on four Also, the suggestion that routing surface detailed requirements, or the insistence different occasions in 1993 and 1994 runoff into subsurface drains may have that a specified ‘‘recipe’’ be followed, (Administrative Record Nos. WV–891, a mitigating effect on floods should result in unnecessary costs to the WV–897, WV–936, and WV–942). No create as much concern as it might mining industry and an impediment to comments were received concerning portend a potential advantage. Retained the development of design durable rock fills. water increases the weight of a fill mass, improvements. potentially increasing the driving force In response, OSM notes that the only V. Director’s Decision for sliding, and may engender sufficient restriction at issue concerns the use of Based on the above findings, the pore water pressures to reduce the fill’s subsurface drains for surface runoff Director is approving the proposed resistance to failure. control in durable-rock excess spoil amendment pertaining to durable rock Previous studies: Some comments fills. Proposed CSR § 38–2–14.14(g)(8) fills as submitted by West Virginia on included references to literature that the requires that the fill be designed and July 30, 1993, and revised on September commenter believed supports routing constructed with diversion channels 1, 1994 and May 16, 1995. surface runoff through subsurface that minimize surface water infiltration drains. These include: the U.S. into the fill. Therefore, the diversion of The Federal regulations at 30 CFR Department of Agriculture Soil surface runoff into subsurface drains is Part 948 codifying decisions concerning Conservation Service Engineering prohibited. OSM finds that if this the West Virginia program are being Handbook; WVDEP Mining and condition is met the proposed rule amended to implement this decision. Reclamation Handbook; OSM allows adequate flexibility for the This final rule is being made effective Engineering and Design Manual for engineer to design a drainage control immediately to expedite the State Disposal of Excess Spoil (1983); system that fits site-specific conditions. program amendment process and to recommendations of the Durable encourage States to bring their programs Rockfill Committee (1983); 1981 Federal Agency Comments into conformity with the Federal National Academy of Science report; Pursuant to section 503(b)(1) of standards without undue delay. Department of Energy study by Skelly SMCRA and 30 CFR 732.17(h)(11)(i), Consistency of State and Federal and Loy on excess-spoil disposal in the OSM solicited comments on the standards is required by SMCRA. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42443 VI. Procedural Determinations existing requirements previously and the genetic material necessary for promulgated by OSM will be its production (plasmid vector Executive Order 12866 implemented by the State. In making the pCIB4431) in corn. A request for an This rule is exempted from review by determination as to whether this rule exemption from the requirement of a the Office of Management and Budget would have a significant economic tolerance was submitted by Ciba-Geigy (OMB) under Executive Order 12866 impact, the Department relied upon the Corp. (Ciba Seeds). This regulation (Regulatory Planning and Review). data and assumptions for the eliminates the need to establish a Executive Order 12778 counterpart Federal regulations. maximum permissible level for residues of this plant pesticide in the raw The Department of the Interior has List of Subjects in 30 CFR Part 948 agricultural commodities of field corn, conducted the reviews required by Intergovernmental relations, Surface sweet corn, and popcorn. section 2 of Executive Order 12778 mining, Underground mining. EFFECTIVE DATE: Effective on August 16, (Civil Justice Reform) and has Dated: August 10, 1995. 1995. determined that, to the extent allowed ADDRESSES: Written objections and by law, this rule meets the applicable Michael K. Robinson, hearing requests, identified by the standards of subsections (a) and (b) of Acting Regional Director, Appalachian document control number, [PP 4F4395/ that section. However, these standards Regional Coordinating Center. R2161] and may be submitted to: are not applicable to the actual language For the reasons set out in the Hearing Clerk (1900), Environmental of State regulatory programs and preamble, Title 30, Chapter VII, Protection Agency, Rm. M3708, 401 M program amendments since each such Subchapter T of the Code of Federal St., SW., Washington, DC 20460. Fees program is drafted and promulgated by Regulations is amended as set forth accompanying objections shall be a specific State, not by OSM. Under below: labeled ‘‘tolerance petition fees’’ and sections 503 and 505 of SMCRA (30 forwarded to: EPA Headquarters U.S.C. 1253 and 1255) and 30 CFR PART 948ÐWEST VIRGINIA Accounting Operations Branch, OPP 730.11, 732.15 and 732.17(h)(10), (Tolerance Fees), P.O. Box 360277M, decisions on proposed State regulatory 1. The authority citation for Part 948 Pittsburgh, PA 15251. A copy of any programs and program amendments continues to read as follows: objections and hearing requests filed submitted by the States must be based Authority: 30 U.S.C. 1201 et seq. with the Hearing Clerk should be solely on a determination of whether the 2. Section 948.15 is amended by identified by the document control submittal is consistent with SMCRA and adding paragraph (n) to read: number and submitted to: Public its implementing Federal regulations Response and Program Resources and whether the other requirements of § 948.15 Approval of regulatory program Branch, Field Operations Division 30 CFR Parts 730, 731, and 732 have amendments. (7506C), Office of Pesticide Programs, been met. * * * * * Environmental Protection Agency, 401 National Environmental Policy Act (n) The sections of the amendment M St., SW., Washington, DC 20460. In submitted by West Virginia to OSM by person, bring copy of objections and No environmental impact statement is letter dated July 30, 1993, as revised by required for this rule since section hearing requests to: Rm. 1132, CM #2, submittals dated September 1, 1994, and 1921 Jefferson Davis Hwy., Arlington, 702(d) of SMCRA [30 U.S.C. 1292(d)] May 16, 1995, pertaining to durable rock provides that agency decisions on VA 22202. fills are approved effective August 16, A copy of objections and hearing proposed State regulatory program 1995. provisions do not constitute major requests filed with the Hearing Clerk Federal actions within the meaning of [FR Doc. 95–20272 Filed 8–15–95; 8:45 am] may also be submitted electronically by section 102(2)(C) of the National BILLING CODE 4310±05±M sending electronic mail (e-mail) to: opp- Environmental Policy Act (42 U.S.C. [email protected]. Copies of 4332(2)(C)). objections and hearing requests must be ENVIRONMENTAL PROTECTION submitted as an ASCII file avoiding the Paperwork Reduction Act AGENCY use of special characters and any form This rule does not contain of encryption. Copies of objections and information collection requirements that 40 CFR Part 180 hearing requests will also be accepted require approval by OMB under the on disks in WordPerfect in 5.1 file [PP 4F4395/R2161; FRL±4971±3] Paperwork Reduction Act (44 U.S.C. format or ASCII file format. All copies of objections and hearing requests in 3507 et seq.). RIN 2070±AB78 electronic form must be identified by Regulatory Flexibility Act Plant Pesticide Bacillus Thuringiensis the docket number, [PP 4F4395/R2161]. The Department of the Interior has CryIA(b) Delta-Endotoxin and the No Confidential Business Information determined that this rule will not have Genetic Material Necessary for its (CBI) should be submitted through e- a significant economic impact on a Production (Plasmid Vector pCIB4431) mail. Electronic copies of objections and substantial number of small entities in Corn hearing requests on this rule may be under the Regulatory Flexibility Act (5 filed online at many Federal Depository U.S.C. 601 et seq.). The State submittal AGENCY: Environmental Protection Libraries. Additional information on which is the subject of this rule is based Agency (EPA). electronic submissions can be found upon counterpart Federal regulations for ACTION: Final rule. below in this document. which an economic analysis was FOR FURTHER INFORMATION CONTACT: By prepared and certification made that SUMMARY: This rule establishes an mail: Michael L. Mendelsohn, such regulations would not have a exemption from the requirement of a Biopesticides and Pollution Prevention significant economic effect upon a tolerance for residues of the plant Division, Office of Pesticide Programs, substantial number of small entities. pesticide active ingredient Bacillus Environmental Protection Agency, 401 Accordingly, this rule will ensure that thuringiensis CryIA(b) delta-endotoxin M St., SW., Washington, DC 20460. 42444 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Office location and telephone number: modifications, and insect bioactivity. vitro digestibility studies indicate the 5th Floor, CS #1, 2800 Crystal Drive, These assays have demonstrated the delta-endotoxin would be rapidly Arlington, VA 22202, Telephone No.: truncated CryIA(b) delta-endotoxin degraded following ingestion. (703)-308-8715; e-mail: expressed in corn and the tryptic The genetic material necessary for the [email protected]. digested CryIA(b) delta-endotoxin to be production of the Bacillus thuringiensis SUPPLEMENTARY INFORMATION: Ciba similar. The N-terminal amino acid CryIA(b) delta endotoxin are the nucleic Seeds has genetically modified corn sequences of both delta-endotoxins were acids (DNA) which comprise (1) genetic plants to produce a truncated version of found to be identical except that the material encoding the CryIA(b) delta- the pesticidal CryIA(b) delta-endotoxin plant produced delta-endotoxin had endotoxin and (2) its regulatory regions. protein (derived from the soil microbe portions at the N-terminus deleted, ‘‘Regulatory regions’’ are the genetic Bacillus thuringiensis). EPA issued a perhaps due to internal plant proteases material that control the expression of notice, published in the Federal and a higher bioactivity. These the genetic material encoding the Register of February 1, 1995 (60 FR differences were not considered CryIA(b) deltaendotoxin, such as 6093), which announced that Ciba- toxicologically significant since they are promoters, terminators, and enhancers. Geigy Corp., P.O. Box 12257, Research not expected to change the activity of DNA is common to all forms of plant Triangle Park, NC 27709-2257, had the deltaendotoxin in mammalian and animal life, and the Agency knows submitted a pesticide petition, PP systems. of no instance where these nucleic acids 4F4395, to EPA requesting that the have been associated with toxic effects Administrator, pursuant to section Toxicology Assessment related to their consumption. These 408(d) of the Federal Food, Drug, and The toxicology data provided are ubiquitous nucleic acids as they appear Cosmetic Act (FFDCA), 21 U.S.C. sufficient to demonstrate that there are in the subject active ingredient have 346a(d), establish an exemption from no foreseeable human health hazards been adequately characterized by the the requirement of a tolerance for the likely to arise from the use of Bacillus applicant. Therefore, no mammalian plant pesticide Bacillus thuringiensis thuringiensis CryIA(b) delta-endotoxin toxicity is expected from dietary delta-endotoxin as produced in corn by and the genetic material necessary for exposure to the genetic material a CryIA(b) gene and its controlling its production (plasmid vector necessary for the production of the sequences as found on plasmid vector pCIB4431) when used as a plant Bacillus thuringiensis CryIA(b) delta pCIB4431. EPA has assigned the active pesticide in any corn plant. endotoxin in corn. ingredient of this product the name The data Ciba Seeds submitted Allergenicity Bacillus thuringiensis CryIA(b) delta- regarding potential health effects endotoxin and the genetic material include information on the Current scientific knowledge suggests necessary for its production (plasmid characterization of the expressed that common food allergens tend to be vector pCIB4431) in corn. ‘‘Genetic CryIA(b) delta-endotoxin in corn, the resistant to degradation by heat, acid, material necessary for its production’’ acute oral toxicity, and in vitro and proteases and are glycosylated and means the genetic material which digestibility of the delta-endotoxin. present at high concentrations in the food. Ciba Seeds has submitted data to comprise (1) genetic material encoding Toxicity the CryIA(b) delta-endotoxin and (2) its indicate that the CryIA(b) delta- regulatory regions. ‘‘Regulatory regions’’ The Agency expects that proteins endotoxin is rapidly degraded by gastric are the genetic materials that control the with no significant amino acid fluid in vitro, is not present as a major expression of the genetic material homology to known protein toxins and component of food (i.e., is not found in encoding the CryIA(b) delta-endotoxin, which are readily inactivated by heat or corn kernels and is not detectable in such as promoters, terminators, and mild acidic conditions would also be finished silage) and is apparently enhancers. readily degraded in an in vitro nonglycosylated or otherwise post- There were no adverse comments or digestibility assay and have little translationally modified when produced requests for referral to an advisory likelihood for displaying oral toxicity. in plants. committee received in response to the The data submitted by Ciba Seeds Studies submitted to EPA done in notice of filing of the pesticide petition, support the prediction that the CryIA(b) laboratory animals also have not PP 4F4395. protein would be nontoxic to humans. indicated any potential for allergic When proteins are toxic, they are known reactions to B. thuringiensis or its Product Analysis to act via acute mechanisms and at very components, including the delta- Ciba Seeds submitted information low dose levels [Sjobald, Roy D., et al. endotoxin in the crystal protein. Recent which adequately described the ‘‘Toxicological Considerations for in vitro studies also confirm that the truncated CryIA(b) delta-endotoxin as Protein Components of Biological delta endotoxin would be readily expressed in corn, along with data on Pesticide Products,’’ Regulatory digestible in vivo, unlike known food the genetic material necessary for its Toxicology and Pharmacology, 15, 3-9 allergens that are resistant to production. (1992)]. Therefore, since no significant degradation. Product analysis data were submitted acute effects were observed, even at Despite decades of widespread use of to show that microbially expressed and relatively high-dose levels, the CryIA(b) Bacillus thuringiensis as a pesticide (it purified CryIA(b) delta-endotoxin used delta-endotoxin is not considered has been registered since 1961), there for mammalian toxicological testing acutely or chronicly toxic. Adequate have been no confirmed reports of purposes is not significantly different information was submitted to show that immediate or delayed allergic reactions than the delta-endotoxin expressed in the test materials derived from to the delta-endotoxin itself despite the plant. The following assays were microbial cultures were biochemically significant oral, dermal, and inhalation used to determine the similarity of the and insecticidally similar to the delta- exposure to the microbial product. microbially expressed and purified endotoxin as produced by corn. Several reports under FIFRA section CryIA(b) delta-endotoxin and that Production of microbial produced 6(a)2 have been made for various produced in corn: SDS-PAGE, western CryIA(b) delta-endotoxin was chosen in Bacillus thuringiensis products with blots, amino acid sequencing, certain order to obtain sufficient material for allergic reactions being reported. tests for post-translational mammalian testing. In addition, the in However, these reactions were Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42445 determined not to be due to Bacillus delta-endotoxin is not considered and a summary of any evidence relied thuringiensis itself or any of the cry acutely or chronicly toxic. This is upon by the objector as well as the other toxins. similar to the Agency position regarding materials required by 40 CFR 178.27. A toxicity and the requirement of residue request for a hearing will be granted if Submitted Data data for the microbial Bacillus the Administrator determines that the 1. Acute Oral Toxicity of Bacterially thuringiensis products from which this material submitted shows the following: Produced CryIA(b) Delta- endotoxin plant pesticide was derived. [See 40 There is genuine and substantial issue Five male and five female mice received CFR 158.740(b)] For microbial products, of fact; there is reasonable possibility a single dose of 3,280 mg/kg of CryIA(b) further toxicity testing to verify the that available evidence identified by the delta-endotoxin by oral gavage. No observed effects and clarify the source requestor would, if established, resolve animals died, nor were there significant of the effects (Tiers II and III) and one or more of such issues in favor of clinical signs as a result of the exposure. residue data are triggered by significant the requestor, taking into account One female failed to gain weight acute effects in studies such as the uncontested claims or facts to the between day 7 and day 14. All animals mouse oral toxicity study. contrary; and resolution of the factual gained weight by the end of the study. The genetic material necessary for the issue(s) in the manner sought by the Males gained more weight over the production of the Bacillus thuringiensis requestor would be adequate to justify study than females. The LD50 was CryIA(b) delta endotoxin are the nucleic the action requested (40 CFR 178.32). therefore greater than 3,280 mg/kg, the acids (DNA) which comprise: (1) genetic A record has been established for this highest dose tested. material encoding the CryIA(b) delta- rulemaking under docket number [PP 2. In-Vitro Digestibility of CryIA(b) endotoxin and (2) its regulatory regions. 4F4395/R2161] (including objections Delta-endotoxin. The CryIA(b) delta- ‘‘Regulatory regions’’ are the genetic and hearing requests submitted endotoxin from either corn or B.t.k. materials that control the expression of electronically as described below). A HD19 is rapidly degraded in the the genetic material encoding the public version of this record, including presence of pepsin. Using 1/1000 CryIA(b) deltaendotoxin, such as printed, paper versions of electronic strength pepsin, a time course study promoters, terminators, and enhancers. comments, which does not include any shows that the introduced delta- As stated above, no mammalian toxicity information claimed as CBI, is available endotoxin from either source degrades is expected from dietary exposure to the for inspection from 8 a.m. to 4:30 p.m., within 10 minutes to fragments that lack genetic material necessary for the Monday through Friday, excluding legal any immunorecognition in a western production of the Bacillus thuringiensis holidays. The public record is located in blot assay. While this study provides CryIA(b) delta endotoxin in corn. Room 1132 of the Public Response and useful information demonstrating the Therefore, no residue data are required Program Resources Branch, Field digestibility of the CryIA(b) delta- in order to grant an exemption from the Operations Division (7506C), Office of endotoxin produced in corn, it is not yet requirements of a tolerance for the plant Pesticide Programs, Environmental a validated study for assessing protein pesticide, Bacillus thuringiensis Protection Agency, Crystal Mall #2, toxicology. It is not clear whether lack CryIA(b) delta-endotoxin and the 1921 Jefferson Davis Highway, of toxicity correlates with in vitro genetic material necessary for its Arlington, VA. digestibility under the conditions of the production (plasmid vector pCIB4431) Written objections and hearing assay. EPA was relying on this study to in corn. demonstrate rapid degradation of the requests, identified by the document delta-endotoxin. Conclusions control number [PP 4F4395/R2161], 3. Acute Oral Toxicity of Corn Leaf Based on the information considered, may be submitted to the Hearing Clerk Protein Extracted from Bt Corn. the Agency concludes that (1900), Environmental Protection Application of this study to dietary risk establishment of a tolerance is not Agency, Rm. 3708, 401 M St., SW., assessment is not possible because of necessary to protect the public health. Washington, DC 20460. extremely low doses administered, Therefore, the exemption from tolerance A copy of electronic objections and small test populations, and unexplained is established as set forth below. hearing requests filed with the Hearing deaths occurring in both control and Any person adversely affected by this Clerk can be sent directly to EPA at: treated groups. Therefore, EPA is not regulation may, within 30 days after [email protected] relying on this study to support the publication of this document in the tolerance exemption. Federal Register, file written objections A copy of electronic objections and to the regulation and may also request hearing requests filed with the Hearing Residue Chemistry Data a hearing on those objections. Clerk must be submitted as an ASCII file Residue chemistry data were not Objections and hearing requests must be avoiding the use of special characters required because of the lack of filed with the Hearing Clerk, at the and any form of encryption. mammalian toxicity of this active address given above (40 CFR 178.20). A The official record for this ingredient. In the acute mouse oral copy of the objections and/or hearing rulemaking, as well as the public toxicity study, the CryIA(b) delta- requests filed with the Hearing Clerk version, as described above will be kept endotoxin was shown to have an LD50 should be submitted to the OPP docket in paper form. Accordingly, EPA will greater than 3,280 mg/kg. When proteins for this rule making. The objections transfer any objections and hearing are toxic, they are known to act via submitted must specify the provisions requests received electronically into acute mechanisms and at very low dose of the regulation deemed objectionable printed, paper form as they are received levels [Sjobald, Roy D., et al. and the grounds for the objections (40 and will place the paper copies in the ‘‘Toxicological Considerations for CFR 178.25). Each objection must be official rulemaking record which will Protein Components of Biological accompanied by the fee prescribed by also include all objections and hearing Pesticide Products,’’ Regulatory 40 CFR 180.33(i). If a hearing is requests submitted directly in writing. Toxicology and Pharmacology, 15, 3-9 requested, the objections must include a The official rulemaking record is the (1992)]. Therefore, since no significant statement of the factual issue(s) on paper record maintained at the address acute effects were observed, even at which a hearing is requested, the in ‘‘ADDRESSES’’ at the beginning of relatively high dose levels, the CryIA(b) requestor’s contentions on such issues, this document. 42446 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Under Executive Order 12866 (58 FR § 180.1152 Bacillus thuringiensis CryIA(b) (7506C), Office of Pesticide Programs, 51735, October 4, 1993), the Agency delta-endotoxin and the genetic material Environmental Protection Agency, 401 must determine whether the regulatory necessary for its production (plasmid M St., SW., Washington, DC 20460. In vector pCIB4431) in corn; exemption from action is ‘‘significant’’ and therefore the requirement of a tolerance. person, bring copy of objections and subject to all the requirements of the hearing requests to: Rm. 1132, CM #2, Executive Order (i.e., Regulatory Impact Bacillus thuringiensis CryIA(b) delta- 1921 Jefferson Davis Hwy., Arlington, Analysis, review by the Office of endotoxin and the genetic material VA 22202. necessary for its production (plasmid Management and Budget (OMB)). Under A copy of objections and hearing section 3(f), the order defines vector pCIB4431) in corn is exempt from the requirement of a tolerance when requests filed with the Hearing Clerk ‘‘significant’’ as those actions likely to used as a plant pesticide in the raw may also be submitted electronically by lead to a rule (1) having an annual effect agricultural commodities of field corn, sending electronic mail (e-mail) to: opp- on the economy of $100 million or sweet corn, and popcorn. ‘‘Genetic [email protected]. Copies of more, or adversely and materially material necessary for its production’’ objections and hearing requests must be affecting a sector of the economy, means the genetic materials which submitted as an ASCII file avoiding the productivity, competition, jobs, the comprise genetic material encoding the use of special characters and any form environment, public health or safety, or CryIA(b) delta-endotoxin and its of encryption. Copies of objections and State, local or tribal governments or regulatory regions. ‘‘Regulatory regions’’ hearing requests will also be accepted communities (also known as are the genetic materials that control the on disks in WordPerfect in 5.1 file ‘‘economically significant’’); (2) creating expression of the genetic material format or ASCII file format. All copies serious inconsistency or otherwise encoding the CryIA(b) delta-endotoxin, of objections and hearing requests in interfering with an action taken or such as promoters, terminators, and electronic form must be identified by planned by another agency; (3) enhancers. the docket number [OPP-300390A]. No materially altering the budgetary Confidential Business Information (CBI) impacts of entitlement, grants, user fees, [FR Doc. 95–20014 Filed 8–15–95; 8:45 am] should be submitted through e-mail. or loan programs; or (4) raising novel BILLING CODE 6560±50±F Electronic copies of objections and legal or policy issues arising out of legal hearing requests on this rule may be mandates, the President’s priorities, or filed online at many Federal Depository 40 CFR Part 180 the principles set forth in this Executive Libraries. Additional information on Order. [OPP±300390A; FRL±4967±6] electronic submissions can be found Pursuant to the terms of this RIN 2070±AB78 below in this document. Executive Order, EPA has determined FOR FURTHER INFORMATION CONTACT: By that this rule is not ‘‘significant’’ and is Dimethoate; Pesticide Tolerance mail: Robert Forrest, Product Manager therefore not subject to OMB review. (PM) 14, Registration Division (7505C), AGENCY: Environmental Protection Pursuant to the requirements of the Environmental Protection Agency, 401 Agency (EPA). Regulatory Flexibility Act (Pub. L. 96- M St., SW., Washington, DC 20460. ACTION: 354, 94 Stat. 1164, 5 U.S.C. 601-612), Final rule. Office location and telephone number: the Administrator has determined that SUMMARY: This document establishes an Rm. 259, 1921 Jefferson Davis Hwy., regulations establishing new tolerances import tolerance for total residues of the Arlington, VA 22202, (703)-305-6600; e- or raising tolerance levels or insecticide dimethoate including its mail: [email protected]. establishing exemptions from tolerance oxygen analog in or on the raw requirements do not have a significant SUPPLEMENTARY INFORMATION: In the agricultural commodity blueberries. economic impact on a substantial Federal Register of June 23, 1995 (60 FR EPA is issuing this regulation on its own number of small entities. A certification 32641), EPA issued a proposed rule that initiative pursuant to a project to statement to this effect was published in gave notice that on its own initiative harmonize certain tolerances with those the Federal Register of May 4, 1981 (46 and pursuant to section 408(e) of the established by the Canadian FR 24950). Federal Food, Drug and Cosmetic Act government. (FFDCA), 21 U.S.C. 346a(e), EPA List of Subjects in 40 CFR Part 180 EFFECTIVE DATE: This regulation proposed to amend 40 CFR 180.204 by becomes effective August 16, 1995. Environmental protection, establishing an import tolerance for total Administrative practice and procedure, ADDRESSES: Written objections and residues of the insecticide dimethoate Agricultural commodities, Pesticides hearing requests, identified by the including its oxygen anaolog in or on and pests, Reporting and record keeping document control number, [OPP- the raw agricultural commodity requirements. 300390A], may be submitted to: Hearing blueberries at 1 part per million (ppm). Clerk (1900), Environmental Protection As part of the Canada-U.S. Trade Dated: August 7, 1995. Agency, Rm. M3708, 401 M St., SW., Agreement (CUSTA), and through the Penelope A. Fenner-Crisp, Washington, DC 20460. Fees Pesticides Technical Working Group’s Acting Director, Office of Pesticide Programs. accompanying objections and hearing Maximum Residue Limit (MRL) requests shall be labeled ‘‘Tolerance Harmonization Pilot Project, the PART 180Ð[AMENDED] Petition Fees’’ and forwarded to: EPA Canadian government has requested that Headquarters Accounting Operations the U.S. establish a tolerance of 1 ppm Therefore, 40 CFR part 180 is Branch, OPP (Tolerance Fees), P.O. Box for residues of dimethoate in or on amended as follows: 360277M, Pittsburgh, PA 15251. A copy blueberries. The insecticide is registered 1. The authority citation for part 180 of any objections and hearing requests for use on blueberries in Canada, but not continues to read as follows: filed with the Hearing Clerk should be in the U.S. The Canadian tolerance is 1 Authority: 21 U.S.C. 346a and 371. identified by the document control ppm. The Agency has reviewed number and submitted to: Public Canadian crop field trial residue data 2. In subpart D, by adding new Response and Program Resources and determined that they are adequate § 180.1152, to read as follows: Branch, Field Operations Division to support an import tolerance. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42447 There were no comments or requests Written objections and hearing the Administrator has determined that for referral to an advisory committee requests, identified by the document regulations establishing new tolerances received in response to the proposed control number [OPP-300390A], may be or raising tolerance levels or rule. submitted to the Hearing Clerk (1900), establishing exemptions from tolerance The data submitted with the proposal Environmental Protection Agency, Rm. requirements do not have a significant and other relevant material have been 3708, 401 M St., SW., Washington, DC economic impact on a substantial evaluated and discussed in the 20460. number of small entities. A certification proposed rule. Based on the data and A copy of electronic objections and statement to this effect was published in information considered, the Agency hearing requests filed with the Hearing the Federal Register of May 4, 1981 (46 concludes that the tolerance will protect Clerk can be sent directly to EPA at: FR 24950). the public health. Therefore, the [email protected]. tolerance is established as set forth List of Subjects in 40 CFR Part 180 below. A copy of electronic objections and Environmental protection, Any person adversely affected by this hearing requests filed with the Hearing Administrative practice and procedure, regulation may, within 30 days after Clerk must be submitted as an ASCII file Agricultural commodities, Pesticides publication of this document in the avoiding the use of special characters and pests, Reporting and recordkeeping Federal Register, file written objections and any form of encryption. requirements. and/or request a hearing with the The official record for this Dated: July 25, 1995. Hearing Clerk, at the address given rulemaking, as well as the public above (40 CFR 178.20). A copy of the version, as described above will be kept Stephen L. Johnson, objections and/or hearing requests filed in paper form. Accordingly, EPA will Director, Registration Division, Office of with the Hearing Clerk should be transfer any objections and hearing Pesticide Programs. submitted to the OPP docket for this requests received electronically into Therefore, 40 CFR part 180 is rulemaking. The objections submitted printed, paper form as they are received amended as follows: must specify the provisions of the and will place the paper copies in the regulation deemed objectionable and the official rulemaking record which will PART 180Ð[AMENDED] grounds for the objections (40 CFR also include all objections and hearing 178.25). Each objection must be requests submitted directly in writing. 1. The authority citation for part 180 accompanied by the fee prescribed by The official rulemaking record is the continues to read as follows: 40 CFR 180.33(i). If a hearing is paper record maintained at the address Authority: 21 U.S.C. 346a and 371. requested, the objections must include a in ‘‘ADDRESSES’’ at the beginning of 2. In § 180.204, by amending statement of the factual issue(s) on this document. which a hearing is requested, the Under Executive Order 12866 (58 FR paragraph (a) by adding and requestor’s contentions on such issues, 51735, Oct. 4, 1993), the Agency must alphabetically inserting the following and a summary of any evidence relied determine whether the regulatory action commodity, to read as follows: upon by the objector (40 CFR 178.27). A is ‘‘significant’’ and therefore subject to § 180.204 Dimethoate including its oxygen request for a hearing will be granted if review by the Office of Management and analog; tolerances for residues. the Administrator determines that the Budget (OMB) and the requirements of (a) * * * material submitted shows the following: the Executive Order. Under section 3(f), There is a genuine and substantial issue the order defines a ‘‘significant Parts per of fact; there is a reasonable possibility regulatory action’’ as an action that is Commodity million that available evidence identified by the likely to result in a rule (1) having an requestor would, if established, resolve annual effect on the economy of $100 million or more, or adversely and ***** one or more of such issues in favor of 1 the requestor, taking into account materially affecting a sector of the Blueberries ...... 1 uncontested claims or facts to the economy, productivity, competition, ***** contrary; and resolution of the factual jobs, the environment, public health or issue(s) in the manner sought by the safety, or State, local, or tribal 1There are no U.S. registrations as of Au- requestor would be adequate to justify governments or communities (also gust 16, 1995. the action requested (40 CFR 178.32). referred to as ‘‘economically * * * * * A record has been established for this significant’’); (2) creating serious [FR Doc. 95–20013 Filed 8–15–95; 8:45 am] rulemaking under docket number [OPP- inconsistency or otherwise interfering 300390A] (including any objections and with an action taken or planned by BILLING CODE 6560±50±F hearing requests submitted another agency; (3) materially altering electronically as described below). A the budgetary impacts of entitlement, 40 CFR Part 180 public version of this record, including grants, user fees, or loan programs or the printed, paper versions of electronic rights and obligations of recipients [OPP±300382A; FRL±4958±3] comments, which does not include any thereof; or (4) raising novel legal or RIN 2070±AB78 information claimed as CBI, is available policy issues arising out of legal for inspection from 8 a.m. to 4:30 p.m., mandates, the President’s priorities, or Summer Squash; Definitions and Monday through Friday, excluding legal the principles set forth in this Executive Interpretations holidays. The public record is located in Order. Room 1132 of the Public Response and Pursuant to the terms of the Executive AGENCY: Environmental Protection Program Resources Branch, Field Order, EPA has determined that this Agency (EPA). Operations Division (7506C), Office of rule is not ‘‘significant’’ and is therefore ACTION: Final rule. Pesticide Programs, Environmental not subject to OMB review. Protection Agency, Crystal Mall #2, Pursuant to the requirements of the SUMMARY: This document amends 40 1921 Jefferson Davis Highway, Regulatory Flexibility Act (Pub. L. 96- CFR 180.1(h) to expand EPA’s Arlington, VA. 354, 94 Stat. 1164, 5 U.S.C. 601-612), interpretation for the application of 42448 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations tolerances and exemptions from the interpreted for tolerance purposes to 354, 94 Stat. 1164, 5 U.S.C. 601-612), requirement of a tolerance established include the corresponding specific the Administrator has determined that for pesticide chemicals in or on the raw commodity chayote fruit. regulations establishing new tolerances agricultural commodity summer squash There were no comments received in or raising tolerance levels or to include chayote fruit. The response to the proposed rule. establishing exemptions from tolerance amendment is based, in part, on The data submitted with the proposal requirements do not have a significant recommendations of the Interregional and other relevant material have been economic impact on a substantial Research Project No. 4 (IR-4). evaluated and discussed in the number of small entities. A certification EFFECTIVE DATE: This regulation proposed rule. Based on the data and statement to this effect was published in becomes effective August 16, 1995. information considered, the Agency the Federal Register of May 4, 1981 (46 FOR FURTHER INFORMATION CONTACT: By concludes that the expanded definition FR 24950). mail: Hoyt L. Jamerson, Registration and interpretation for summer squash to Although this regulation does not Division (7505W), Environmental include chayote fruit is appropriate. establish or raise a tolerance level or Protection Agency, 401 M St., SW., Therefore, the expanded definition is establish an exemption from the Washington, DC 20460. Office location established as set forth below. requirement of a tolerance, the impact of and telephone number: Sixth Floor, Under Executive Order 12866 (58 FR the regulation would be the same as Crystal Station #1, 1800 Jefferson Davis 51735, Oct. 4, 1993), the Agency must establishing new tolerances or Hwy., Arlington, VA 22202, (703)-308- determine whether the regulatory action exemptions from the requirement of a 8783; e-mail: is ‘‘significant’’ and therefore subject to tolerance. Therefore, the Administrator [email protected]. review by the Office of Management and concludes that this rule would not have SUPPLEMENTARY INFORMATION: In the Budget (OMB) and the requirements of a significant economic impact on a Federal Register of April 26, 1995 (60 the Executive Order. Under section 3(f), substantial number of small entities. FR 20470), EPA issued a proposed rule the order defines a ‘‘significant that gave notice of a proposed regulatory action’’ as an action that is List of Subjects in 40 CFR Part 180 likely to result in a rule (1) having an amendment to 40 CFR 180.1(h). Environmental protection, Paragraph (h) of 40 CFR 180.1 provides annual effect on the economy of $100 million or more, or adversely and Administrative practice and procedure, a listing of general commodity terms Agricultural commodities, Pesticides and EPA’s interpretation of those terms materially affecting a sector of the economy, productivity, competition, and pests, Reporting and recordkeeping as they apply to tolerances and requirements. exemptions from the requirement of a jobs, the environment, public health or tolerance for pesticide chemicals under safety, or State, local, or tribal Dated: July 28, 1995. section 408 of the Federal Food, Drug governments or communities (also Peter Caulkins, referred to as ‘‘economically and Cosmetic Act (21 U.S.C. 346a). Acting Director, Registration Division, Office General commodities are listed in significant’’); (2) creating serious of Pesticide Programs. column A of 40 CFR 180.1(h), and the inconsistency or otherwise interfering corresponding specific commodities, for with an action taken or planned by Therefore, 40 CFR part 180 is which tolerances and exemptions from another agency; (3) materially altering amended as follows: the requirement of a tolerance the budgetary impacts of entitlement, established for the general commodity grants, user fees, or loan programs or the PART 180Ð[AMENDED] apply, are listed in column B. The rights and obligations of recipients Interregional Research Project No. 4 (IR- thereof; or (4) raising novel legal or 1. The authority citation for part 180 4), New Brunswick, NJ 08903, had policy issues arising out of legal continues to read as follows: requested that 40 CFR 180.1(h) be mandates, the President’s priorities, or Authority: 21 U.S.C. 346a and 371. amended by revising the current the principles set forth in this Executive interpretation for the general Order. 2. In § 180.1(h), by amending the table commodity term ‘‘summer squash,’’ Pursuant to the terms of the Executive therein by revising the entry for summer which is listed in column A, by adding Order, EPA has determined that this squash, to read as follows: the specific commodity term ‘‘chayote’’ rule is not ‘‘significant’’ and is therefore § 180.1 Definitions and interpretations. to column B. The Agency concluded not subject to OMB review. that it is appropriate that the general Pursuant to the requirements of the * * * * * commodity ‘‘summer squash’’ should be Regulatory Flexibility Act (Pub. L. 96- (h) * * * A B ***** Summer squash ...... Fruits of the gourd (Cucurbitaceae) family that are consumed when immature, 100% of the fruit is edi- ble either cooked or raw, once picked it cannot be stored, has a soft rind which is easily penetrated, and if seeds were harvested they would not germinate; e.g., Cucurbita pepo (i.e., crookneck squash, straightneck squash, scallop squash, and vegetable marrow); Lagenaria spp. (i.e., spaghetti squash, hyotan, cucuzza); Luffa spp. (i.e., hechima, Chinese okra); Momordica spp. (i.e., bitter melon, bal- sam pear, balsam apple, Chinese cucumber); Sechium edule (chayote); and other cultivars and/or hybrids of these. ***** Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42449 * * * * * use of special characters and any form 3. Acute Pulmonary Toxicity/ [FR Doc. 95–19797 Filed 8–15–95; 8:45 am] of encryption. Copies of objections and Infectivity in Rats, Guideline No. 152A- hearing requests will also be accepted 13. Thirty-four male and female BILLING CODE 6560±50±F on disks in WordPerfect in 5.1 file Sprague-Dawley rats were dosed via format or ASCII file format. All copies intratracheal injection with 1.2 mL/kg 40 CFR Part 180 of objections and hearing requests in GIBs/mL. Baculovirus Cydia pomonella electronic form must be identified by was not toxic, infectious, or pathogenic [PP 2F4090/R2154; FRL±4966±9] the docket number [PP 2F4090/R2154]. to rats. TOX CATEGORY IV RIN 2070±AB78 No Confidential Business Information 4. Primary Eye Irritation in Rabbits, (CBI) should be submitted through e- Guideline No. 152A-14. Six New Occlusion Bodies of the Granulosis mail. Electronic copies of objections and Zealand white rabbits were Virus of Cydia Pomenella; Exemption hearing requests on this rule may be administered in a single dose of 0.1 mL from the Requirement of a Tolerance filed online at many Federal Depository Baculovirus Cydia pomonella into the Libraries. Additional information on conjunctival sac of both eyelids. AGENCY: Environmental Protection electronic submissions can be found Baculovirus Cydia pomonella was not Agency (EPA). below in this document. irritating to rabbit eyes when compared to rabbits treated with sterile distilled ACTION: Final rule. FOR FURTHER INFORMATION CONTACT: By water. Ocular irritation dissipated in mail: Linda Hollis, Biopesticides and SUMMARY: This rule establishes an both control and treated eyes by day 21. Pollution Prevention Division (7501W), exemption from the requirement of a TOX CATEGORY II. Environmental Protection Agency, 401 pesticide tolerance for residues of the 5. Cell Culture Toxicity/Infectivity, M St., SW., Washington, DC 20460. microbial pest control agent Occlusion Guideline No. 152A-16. Three human Office location and telephone number: Bodies of the Granulosis Virus of Cydia cell lines WI-38, WS1, and HepG2 were Rm. 259, 1921 Jefferson Davis Hwy., pomenella (codling moth) in or on all challenged with 2 X 109 particles/mL of Arlington, VA 22202, (703)-308-8733; e- raw agricultural commodities. The Cydia pomonella Granulosis Virus mail: [email protected]. University of California at Berkley (CpGV) over a 1-hour exposure and requested this tolerance exemption in a SUPPLEMENTARY INFORMATION: In the rinsed. No significant cytopathic or petition submitted under the Federal Federal Register of June 10, 1992 (57 FR toxic effects were observed. Food, Drug and Cosmetic Act (FFDCA). 24645), EPA issued a notice that The The toxicology data provided are This regulation eliminates the need to University of California, Berkley, CA sufficient to demonstrate that there are establish a maximum permissible level 94720, had petitioned EPA under no foreseeable human health hazards for residues of Cydia pomenella section 408 of the FFDCA, 21 U.S.C. likely to arise from the Cydia pomonella Granulosis Virus. 346a, to establish an exemption from the Granulosis Virus in or on all raw EFFECTIVE DATE: This regulation requirement of a tolerance for residues agricultural commodities when applied becomes effective on August 16, 1995. of the microbial pest control agent Cydia in accordance with good agricultural pomonella Granulosis Virus in or on all practices. ADDRESSES: Written objections and raw agricultural commodities when hearing requests, identified by the Residue Chemistry Data used to control the codling moth. document control number, [PP 2F4090/ Residue chemistry data are necessary R2154], may be submitted to: Hearing There were no comments received in response to the notice of filing. only if the submitted toxicology studies Clerk (1900), Environmental Protection indicate that additional Tier II or II The data submitted in the petition Agency, Rm. M3708, 401 M St., SW., toxicology data would be required as and all other relevant material have Washington, DC 20460. Fees specified in 40 CFR 158.165(e). The been evaluated. The toxicological data accompanying objections and hearing submitted toxicology data for this use considered in support of the exemption requests shall be labeled ‘‘Tolerance indicate that the product is of low from the requirement of a tolerance Petition Fees’’ and forwarded to: EPA mammalian toxicity; therefore, Tier II or include the following: an acute toxicity/ Headquarters Accounting Operations III data were not required. Branch, OPP (Tolerance Fees), P.O. Box pathogenicity study, an acute dermal Acceptable chemistry data are 360277M, Pittsburgh, PA 15251. A copy toxicity study, an acute intravenous necessary only if the submitted of any objections and hearing requests toxicity study, a primary eye irritation toxicology studies indicate that filed with the Hearing Clerk should be study, and a cell culture assay. additional Tier II or III toxicology data identified by the document control 1. Acute Oral Toxicity/Pathogenicity would be required as specified in 40 number and submitted to: Public in Rats, Guideline No. 152A-10. CFR 158.165(e). The submitted Response and Program Resources Eighteen male and female rats were toxicology data for this use indicate that Branch, Field Operations Division dosed by oral gavage with 5.0 mL Cydia the product is of low mammalian (7506C), Office of Pesticide Programs, pomonella granulosis inclusion bodies toxicity; therefore, Tier II or III data Environmental Protection Agency, 401 at a potency of 4 X 1011 GIBs/mL. No were not required. M St., SW., Washington, DC 20460. In abnormalities or toxicity were observed. Based on the information considered, person, bring copy of objections and A distinct clearance pattern was evident the Agency concludes that the hearing requests to: Rm. 1132, CM #2, in the feces and heart/lungs through day establishment of a tolerance for the 1921 Jefferson Davis Hwy., Arlington, 7 of the study. TOX CATEGORY IV. active ingredient Occlusion Bodies of VA 22202. 2. Acute Dermal Toxicity in Rabbits, the Granulosis Virus of Cydia A copy of objections and hearing Guideline No. 152A-11. Five male and pomonella is not necessary to protect requests filed with the Hearing Clerk female New Zealand rabbits were tested. the public health. Therefore, 40 CFR may also be submitted electronically by One test animal displayed mild part 180 is amended as set forth below. sending electronic mail (e-mail) to: opp- erythema and edema within 24 hours Any person adversely affected by this [email protected]. Copies of postdosing. No other signs of dermal regulation may, within 30 days after objections and hearing requests must be irritation were noted. TOX CATEGORY publication of this document in the submitted as an ASCII file avoiding the IV. Federal Register, file written objections 42450 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations and/or request a hearing with the The official record for this Dated: July 21, 1995. Hearing Clerk, at the address given rulemaking, as well as the public Daniel M. Barolo, above (40 CFR 178.20). A copy of the version, as described above will be kept objections and/or hearing requests filed in paper form. Accordingly, EPA will Director, Office of Pesticide Programs. with the Hearing Clerk should be transfer any objections and hearing Therefore, 40 CFR part 180 is submitted to the OPP docket for this requests received electronically into amended as follows: rulemaking. The objections submitted printed, paper form as they are received must specify the provisions of the and will place the paper copies in the PART 180Ð[AMENDED] regulation deemed objectionable and the official rulemaking record which will 1. The authority citation for part 180 grounds for the objections (40 CFR also include all objections and hearing continues to read as follows: 178.25). Each objection must be requests submitted directly in writing. accompanied by the fee prescribed by The official rulemaking record is the Authority: 21 U.S.C. 346a and 371. 40 CFR 180.33(i). If a hearing is paper record maintained at the address 2. In subpart D, by adding new requested, the objections must include a in ‘‘ADDRESSES’’ at the beginning of § 180.1148, to read as follows: statement of the factual issue(s) on this document. which a hearing is requested, the Under Executive Order 12866 (58 FR § 180.1148 Occlusion Bodies of the 51735, Oct. 4, 1993), the Agency must Granulosis Virus of Cydia pomenella; requestor’s contentions on such issues, tolerance exemption. and a summary of any evidence relied determine whether the regulatory action upon by the objector (40 CFR 178.27). A is ‘‘significant’’ and therefore subject to An exemption from the requirement request for a hearing will be granted if review by the Office of Management and of a tolerance is established for residues the Administrator determines that the Budget (OMB) and the requirements of of the microbial pest control agent material submitted shows the following: the Executive Order. Under section 3(f), Occlusion Bodies of the Granulosis There is a genuine and substantial issue the order defines a ‘‘significant Virus of Cydia pomonella (codling of fact; there is a reasonable possibility regulatory action’’ as an action that is moth) in or on all raw agricultural that available evidence identified by the likely to result in a rule (1) having an commodities. requestor would, if established, resolve annual effect on the economy of $100 [FR Doc. 95–20307 Filed 8–15–95; 8:45 am] one or more of such issues in favor of million or more, or adversely and BILLING CODE 6560±50±F the requestor, taking into account materially affecting a sector of the uncontested claims or facts to the economy, productivity, competition, contrary; and resolution of the factual jobs, the environment, public health or 40 CFR Part 180 issue(s) in the manner sought by the safety, or State, local, or tribal [PP 4E4410/R2160; FRL±4971±2] requestor would be adequate to justify governments or communities (also the action requested (40 CFR 178.32). referred to as ‘‘economically RIN 2070±AB78 A record has been established for this significant’’); (2) creating serious rulemaking under docket number [PP inconsistency or otherwise interfering Plant Pesticide Inert Ingredient 2F4090/R2154] (including any with an action taken or planned by Phosphinothricin Acetyltransferase objections and hearing requests another agency; (3) materially altering (PAT) and the Genetic Material submitted electronically as described the budgetary impacts of entitlement, Necessary for Its Production (Plasmid below). A public version of this record, grants, user fees, or loan programs or the Vector pCIBP3064) in Corn; Tolerance including printed, paper versions of rights and obligations of recipients Exemption electronic comments, which does not thereof; or (4) raising novel legal or AGENCY: include any information claimed as CBI, policy issues arising out of legal Environmental Protection is available for inspection from 8 a.m. to mandates, the President’s priorities, or Agency (EPA). 4:30 p.m., Monday through Friday, the principles set forth in this Executive ACTION: Final rule. excluding legal holidays. The public Order. SUMMARY: This rule establishes an record is located in Room 1132 of the Pursuant to the terms of the Executive exemption from the requirement of a Public Response and Program Resources Order, EPA has determined that this tolerance for residues of the plant Branch, Field Operations Division rule is not ‘‘significant’’ and is therefore pesticide inert ingredient (7506C), Office of Pesticide Programs, not subject to OMB review. phosphinothricin acetyltransferase and Environmental Protection Agency, Pursuant to the requirements of the the genetic material necessary for its Crystal Mall #2, 1921 Jefferson Davis Regulatory Flexibility Act (Pub. L. 96- production (plasmid vector pCIB3064) Highway, Arlington, VA. 354, 94 Stat. 1164, 5 U.S.C. 601-612), in corn. A request for an exemption Written objections and hearing the Administrator has determined that from the requirement of a tolerance was requests, identified by the document regulations establishing new tolerances submitted by the Ciba-Geigy Corp. (Ciba control number [PP 2F4090/R2154], or raising tolerance levels or Seed). This regulation eliminates the may be submitted to the Hearing Clerk establishing exemptions from tolerance need to establish a maximum (1900), Environmental Protection requirements do not have a significant permissible level for residues of this Agency, Rm. 3708, 401 M St., SW., economic impact on a substantial plant pesticide inert ingredient in the Washington, DC 20460. number of small entities. A certification raw agricultural commodities of field A copy of electronic objections and statement to this effect was published in corn, sweet corn, and popcorn. hearing requests filed with the Hearing the Federal Register of May 4, 1981 (46 Clerk can be sent directly to EPA at: FR 24950). EFFECTIVE DATE: Effective on August 16, [email protected] 1995. List of Subjects in 40 CFR Part 180 ADDRESSES: Written objections and A copy of electronic objections and Environmental protection, hearing requests, identified bythe hearing requests filed with the Hearing Administrative practice and procedure, document control number [PP 4E4410/ Clerk must be submitted as an ASCII file Agricultural commodities, Pesticides R2160], may be submitted to: Hearing avoiding the use of special characters and pests, Reporting and recordkeeping Clerk (1900), Environmental Protection and any form of encryption. requirements. Agency, Rm. M3708, 401 M St., SW., Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42451 Washington, DC 20460. Fees phosphinothricin acetyltransferase phosphinothricin acetyltransferase and accompanying objections shall be (PAT) as produced in corn by the bar (2) its regulatory regions. ‘‘Regulatory labeled ‘‘tolerance Petition Fees’’ and gene and its controlling sequences as regions’’ are the genetic materials that forwarded to: EPA Headquarters found on plasmid vector pCIB3064. EPA control the expression of the genetic Accounting Operations Branch, OPP has assigned the inert ingredient of this material encoding the phosphinothricin (Tolerance Fees) P.O. Box 360277M, product the name phosphinothricin acetyltransferase, such as promoters, Pittsburgh, PA 15251. A copy of any acetyltransferase and the genetic terminators, and enhancers. DNA is objections and hearing requests filed material necessary for its production common to all forms of plant and with the Hearing Clerk should be (plasmid vector pCIB3064) in corn. animal life, and the Agency knows of no identified by the document control ‘‘Genetic material necessary for its instance where these nucleic acids have number and submitted to: Public production’’ means the genetic materials been associated with toxic effects Response and Program Resources which comprise genetic material related to their consumption. These Branch, Field Operations Division encoding the phosphinothricin ubiquitous nucleic acids as they appear (7506C), Office of Pesticide Programs, acetyltransferase (2) its regulatory in the subject inert ingredient have been Environmental Protection Agency, 401 regions. ‘‘Regulatory regions’’ are the adequately characterized by the M St., SW., Washington, DC 20460. In genetic materials that control the applicant. Therefore, no mammalian person, bring copy of objections and expression of the genetic material toxicity is expected from dietary hearing requests to: Rm. 1132, CM #2, encoding the phosphinothricin exposure to the genetic material 1921 Jefferson Davis Hwy., Arlington, acetyltransferase, such as promoters, necessary for the production of the PAT VA 22202. terminators, and enhancers. protein in corn. A copy of objections and hearing There were no adverse comments or Allergenicity requests filed with the Hearing Clerk requests for referral to an advisory may also be submitted electronically by committee received in response to the Current scientific knowledge suggests sending electronic mail (e-mail) to: opp- notice of filing of the pesticide petition that common food allergens tend to be [email protected]. Copies of 4E4410. resistant to degradation by heat, acid, objections and hearing requests must be Toxicology Assessment and proteases, are glycosylated and are submitted as an ASCII file avoiding the present at high concentrations in the use of special characters and any form EPA evaluated an acute oral toxicity food. Ciba-Geigy has submitted data of encryption. Copies of objections and study and an in vitro digestibility study. which indicates the PAT protein is In the acute mouse oral toxicity study, hearing requests will also be accepted rapidly degraded in the gastric a 51% PAT protein mixture was shown on disks in WordPerfect in 5.1 file environment and is also readily to have an LD50 greater than 5,050 mg/ format or ASCII file format. All copies denatured by heat or low pH. kg. The Agency also expects that of objections and hearing requests in enzymes with no significant amino acid Submitted Data electronic form must be identified by homology to known protein toxins and the docket number, [PP 4E4410/R2160]. 1. Acute Oral Toxicity of Bacterially which are readily inactivated by heat or No Confidential Business Information Produced PAT Protein. A white powder mild acidic conditions would also be (CBI) should be submitted through e- (PAT-0195) containing 51% PAT readily degraded in an in vitro mail. Electronic copies of objections and enzyme by weight was obtained by digestibility assay and have little hearing requests on this rule may be purification from an E. coli fermentation likelihood for displaying oral toxicity. and dosed at 5,050 mg/kg to mice. No filed online at many Federal Depository The PAT enzyme meets all the above Libraries. Additional information on treatment-related significant toxic criteria and, as predicted, submitted effects were seen 14 days after oral electronic submissions can be found data show that no toxicity results when below in this document. gavage of high levels of the purified high doses of this protein are PAT marker protein. FOR FURTHER INFORMATION CONTACT: By administered orally to laboratory 2. In-Vitro Digestibility of PAT mail: Michael L. Mendelsohn, rodents. When proteins are toxic, they Protein. The 22,000 M. W. PAT enzyme Biopesticides and Pollution Prevention are known to act via acute mechanisms is rapidly degraded in the presence of Division, Office of Pesticide Programs, and at very low dose levels [Sjobald, pepsin or low pH so that it loses Environmental Protection Agency, 401 Roy D., et al., ‘‘Toxicological enzymatic activity and is not detected M St., SW., Washington, DC 20460. Considerations for Protein Components by SDS-PAGE. The enzyme also loses Office location and telephone number: of Biological Pesticide Products,’’ activity if subject to temperatures over 5th Floor, CS #1, 2800 Crystal Drive, Regulatory Toxicology and 35 degrees C. EPA was relying on this Arlington, VA 22202, Telephone No.: Pharmacology, 15, 3-9 (1992)]. study to demonstrate rapid degradation (703)-308-8715; e-mail: Therefore, since no significant acute of the protein. [email protected]. effects were observed, even at relatively 3. Acute Oral Toxicity of Corn Leaf SUPPLEMENTARY INFORMATION: EPA high dose levels, the PAT protein is not Protein Extracted from Bt/PAT Corn. issued a notice, published in the considered acutely or chronicly toxic. Application of this study to dietary risk Federal Register of February 1, 1995 (60 The PAT acute oral toxicity study assessment is not possible because of FR 6093), which announced that Ciba- together with data indicating that the extremely low doses administered, Geigy Corp., P.O. Box 12257, Research PAT protein is rapidly degraded in the small test populations, and the Triangle Park, NC 27709-2257, had gastric environment and is also readily unexplained deaths occurring in both submitted a pesticide petition (PP) denatured by heat or low pH are control and treated groups. Therefore, 4E4410 to EPA requesting that the sufficient to support a finding of no EPA is not relying on this study to Administrator, pursuant to section acute mammalian oral toxicity for the support the tolerance exemption. 408(d) of the Federal Food, Drug, and PAT protein. Cosmetic Act (FFDCA), 21 U.S.C. The genetic materials necessary for Residue Chemistry Data 346a(d), establish an exemption from the production of the PAT protein are Residue chemistry data were not the requirement of a tolerance for the the nucleic acids (DNA) which comprise required because of the lack of plant pesticide inert ingredient the (1) genetic material encoding the mammalian toxicity of this active 42452 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations ingredient. When proteins are toxic, and the grounds for the objections (40 official rulemaking record which will they are known to act via acute CFR 178.25). Each objection must be also include all objections and hearing mechanisms and at very low dose levels accompanied by the fee prescribed by requests submitted directly in writing. [Sjobald, Roy D., et al. ‘‘Toxicological 40 CFR 180.33(i). If a hearing is The official rulemaking record is the Considerations for Protein Components requested, the objections must include a paper record maintained at the address of Biological Pesticide Products,’’ statement of the factual issue(s) on in ‘‘ADDRESSES’’ at the beginning of Regulatory Toxicology and which a hearing is requested, the this document. Pharmacology, 15, 3-9 (1992)]. requestor’s contentions on such issues, Under Executive Order 12866 (58 FR Therefore, since no significant acute a summary of any evidence relied upon 51735, October 4, 1993), the Agency effects were observed, even at relatively by the objector as well as the other must determine whether the regulatory high dose levels, the PAT protein is not materials required by 40 CFR 178.27. A action is ‘‘significant’’ and therefore considered acutely or chronicly toxic. request for a hearing will be granted if subject to all the requirements of the This is similar to the Agency position the Administrator determines that the Executive Order (i.e., Regulatory Impact regarding toxicity and the requirement material submitted shows the following: Analysis, review by the Office of of residue data for the microbial There is genuine and substantial issue Management and Budget (OMB)). Under Bacillus thuringiensis products. [See 40 of fact; there is reasonable possibility section 3(f), the order defines CFR 158.740(b)] For microbial products, that available evidence identified by the ‘‘significant’’ as those actions likely to further toxicity testing to verify the requestor would, if established, resolve lead to a rule (1) having an annual effect observed effects and clarify the source one or more of such issues in favor of on the economy of $100 million or of the effects (Tiers II & III) and residue the requestor, taking into account more, or adversely and materially data are triggered by significant acute uncontested claims or facts to the affecting a sector of the economy, effects in studies such as the mouse oral contrary; and resolution of the factual productivity, competition, jobs, the toxicity study. issue(s) in the manner sought by the environment, public health or safety, or The genetic material necessary for the requestor would be adequate to justify State, local or tribal governments or production of the PAT protein are the the action requested (40 CFR 178.32). communities (also known as nucleic acids (DNA) which comprise (1) A record has been established for this ‘‘economically significant’’); (2) creating genetic material encoding the rulemaking under docket number [PP serious inconsistency or otherwise phosphinothricin acetyltransferase and 4E4410/R2160] (including objections interfering with an action taken or (2) its regulatory regions. ‘‘Regulatory and hearing requests submitted planned by another agency; (3) regions’’ are the genetic materials that electronically as described below). A materially altering the budgetary control the expression of the genetic public version of this record, including impacts of entitlement, grants, user fees, material encoding the phosphinothricin printed, paper versions of electronic or loan programs; or (4) raising novel acetyltransferase, such as promoters, comments, which does not include any legal or policy issues arising out of legal terminators, and enhancers. As stated information claimed as CBI, is available mandates, the President’s priorities, or above, no mammalian toxicity is for inspection from 8 a.m. to 4:30 p.m., the principles set forth in this Executive expected from dietary exposure to the Monday through Friday, excluding legal Order. genetic material necessary for the holidays. The public record is located in Pursuant to the terms of this production of the PAT protein corn. Room 1132 of the Public Response and Executive Order, EPA has determined Therefore, no residue data are required Program Resources Branch, Field that this rule is not ‘‘significant’’ and is in order to grant an exemption from the Operations Division (7506C), Office of therefore not subject to OMB review. requirement of a tolerance for the plant Pesticide Programs, Environmental Pursuant to the requirements of the pesticide inert ingredient: Protection Agency, Crystal Mall #2, Regulatory Flexibility Act (Pub. L. 96- phosphinothricin acetyltransferase 1921 Jefferson Davis Highway, 354, 94 Stat. 1164, 5 U.S.C. 601-612), (PAT) and the genetic material Arlington, VA. the Administrator has determined that necessary for its production (plasmid Written objections and hearing regulations establishing new tolerances vector PCIB3064) in corn. requests, identified by the document or raising tolerance levels or control number [PP 4E4410/R2160], Conclusions establishing exemptions from tolerance may be submitted to the Hearing Clerk requirements do not have a significant Based on the information considered, (1900), Environmental Protection economic impact on a substantial the Agency concludes that Agency, Rm. 3708, 401 M St., SW., number of small entities. A certification establishment of a tolerance is not Washington, DC 20460. statement to this effect was published in necessary to protect the public health. A copy of electronic objections and the Federal Register of May 4, 1981 (46 Therefore, the exemption from tolerance hearing requests filed with the Hearing FR 24950). is established as set forth below. Clerk can be sent directly to EPA at: Any person adversely affected by this [email protected] List of Subjects in 40 CFR Part 180 regulation may, within 30 days after Environmental protection, publication of this document in the A copy of electronic objections and Administrative practice and procedure, Federal Register, file written objections hearing requests filed with the Hearing Agricultural commodities, Pesticides to the regulation and may also request Clerk must be submitted as an ASCII file and pests, Reporting and recordkeeping a hearing on those objections. avoiding the use of special characters requirements. Objections and hearing requests must be and any form of encryption. filed with the Hearing Clerk, at the The official record for this Dated: August 7, 1995. address given above (40 CFR 178.20). A rulemaking, as well as the public Penelope A. Fenner-Crisp, copy of the objections and/or hearing version, as described above will be kept Acting Director, Office of Pesticide Programs. requests filed with the Hearing Clerk in paper form. Accordingly, EPA will should be submitted to the OPP docket transfer any objections and hearing PART 180Ð[AMENDED] for this rulemaking. The objections requests received electronically into submitted must specify the provisions printed, paper form as they are received Therefore, 40 CFR part 180 is of the regulation deemed objectionable and will place the paper copies in the amended as follows: Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42453 1. The authority citation for part 180 shall be labeled ‘‘Tolerance Petition dimethyl-cyclopropanecarboxylate and continues to read as follows: Fees’’ and forwarded to: EPA its major metabolites, trans- Authority: 21 U.S.C. 346a and 371. Headquarters Accounting Operations deltamethrin [(S)-alpha-cyano-m- Branch, OPP (Tolerance Fees), P.O. Box phenoxybenzyl-(1R,3S)-3-(2,2- 2. In subpart D, by adding new 360277M, Pittsburgh, PA 15251. A copy dibromovinyl)-2,2- § 180.1151, to read as follows: of any objections and hearing requests dimethylcyclopropane-carboxylate] and § 180.1151 Phosphinothricin filed with the Hearing Clerk should be alpha-R-deltamethrin [(R)-alpha-cyano- acetyltransferase and the genetic material identified by the document control m-phenoxybenzyl-(1R,3R)-3-(2,2- necessary for its production (plasmid number and submitted to: Public dibromovinyl)-2,2- vector pCIB3064) in corn; exemption from Response and Program Resources dimethylcyclopropanecarboxylate] in or the requirement of a tolerance. Branch, Field Operations Division on cottonseed at 0.02 ppm. After Phosphinothricin acetyltransferase (7506C), Office of Pesticide Programs, evaluation of metabolism, residue, and and the genetic material necessary for Environmental Protection Agency, 401 cottonseed processing data, EPA its production (plasmid vector M St., SW., Washington, DC 20460. In concluded that the tolerance proposed pCIB3064) in corn is exempt from the person, bring copy of objections and for cottonseed should be increased to requirement of a tolerance when used as hearing requests to Rm. 1132, CM #2, 0.04 ppm and that a food additive a plant pesticide inert ingredient in the 1921 Jefferson Davis Hwy., Arlington, regulation permitting residues of 0.20 raw agricultural commodities of field VA 22202. ppm in cottonseed oil was necessary. corn, sweet corn, and popcorn. ‘‘Genetic A copy of objections and hearing HRAVC submitted a food additive material necessary for its production’’ requests filed with the Hearing Clerk petition to EPA requesting that the means the genetic materials which may also be submitted electronically by Administrator, pursuant to section comprise genetic material encoding the sending electronic mail (e-mail) to: opp- 409(b) of FFDCA establish a regulation phosphinothricin acetyltransferase and [email protected]. Copies of permitting residues of deltamethrin on its regulatory regions. ‘‘Regulatory objections and hearing requests must be the food commodity cottonseed oil at regions’’ are the genetic materials that submitted as an ASCII file avoiding the 0.2 ppm and amended the initial notice control the expression of the genetic use of special characters and any form of filing to reflect an increase in material encoding the phosphinothricin of encryption. Copies of objections and tolerance for cottonseed to 0.04 ppm. acetyltransferase, such as promoters, hearing requests will also be accepted Notice of these changes was published terminators, and enhancers. on disks in WordPerfect in 5.1 file in the Federal Register of March 15, format or ASCII file format. All copies 1995 (60 FR 13979). [FR Doc. 95–20010 Filed 8–15–95; 8:45 am] of objections and hearing requests in No comments were received in BILLING CODE 6560±50±F electronic form must be identified by response to the notices of filing. the docket number [PP 2F4055 and FAP Tolerances of 0.2 ppm and 1.0 ppm 5H5719/R2151]. No Confidential had been previously established for the 40 CFR Parts 180 and 185 Business Information (CBI) should be combined residues of deltamethrin and [PP 2F4055 and FAP 5H5719/R2151; FRL± submitted through e-mail. Electronic its major metabolite trans-deltamethrin 4966±3] copies of objections and hearing on tomatoes imported from Mexico under 40 CFR 180.435 and tomato RIN 2070±AB78 requests on this rule may be filed online at many Federal Depository Libraries. products (concentrated) under 40 CFR 185.1580, respectively. Based upon the Additional information on electronic Deltamethrin; Pesticide Tolerance and review of plant metabolism data, EPA submissions can be found below in this Food Additive Regulation has determined that the residue to be document. regulated is deltamethrin and its AGENCY: Environmental Protection FOR FURTHER INFORMATION CONTACT: By Agency (EPA). metabolites trans-deltamethrin and mail: George T. LaRocca, Product alpha-R-deltamethrin. Regulation of this ACTION: Final rule. Manager (PM) 13, Registration Division additional metabolite will be reflected (7505C), Office of Pesticide Programs, SUMMARY: This document establishes in the tolerance expression. Environmental Protection Agency, 401 Because pyrethroids are toxic to fish time-limited tolerances for residues of M St., SW., Washington, DC 20460. and other aquatic organisms, the Agency the pyrethroid deltamethrin in or on the Office location and telephone number: is concerned about adverse impacts on raw agricultural commodity (RAC) Rm. 204, CM #2, 1921 Jefferson Davis aquatic ecosystems related to this use of cottonseed at 0.04 part per million Hwy., Arlington, VA 22202, (703)-305- the pyrethroids. In November 1990, the (ppm) and the processed food 6100; e-mail: Agency and five registrants of cottonseed oil at 0.2 ppm. The Hoechst- [email protected]. pyrethroid cotton insecticides Roussel Agri-Vet Co. requested this SUPPLEMENTARY INFORMATION: EPA (collectively, the Pyrethroid Working tolerance and food additive regulation issued a notice, published in the Group (PWG)) in collaboration with the in petitions submitted pursuant to the Federal Register of March 11, 1992 (57 National Cotton Council agreed to Federal Food, Drug and Cosmetic Act FR 8659), which announced that interim risk-reduction measures (FFDCA). Hoechst-Roussel Agri-Vet Co. (HRAVC) designed to reduce the potential for EFFECTIVE DATE: This regulation had submitted pesticide petition (PP) exposure of aquatic habitats of concern becomes effective August 16, 1995. 2F4055 to EPA requesting that the to pyrethroids applied to cotton. The ADDRESSES: Written objections and Administrator, pursuant to section interim risk reduction measures hearing requests, identified by the 408(d) of the Federal Food, Drug, and included user surveys to assess current document control number, [PP 2F4055 Cosmetic Act (FFDCA), 21 U.S.C. pyrethroid use practices on cotton, label and FAP 5H5719/R2151], may be 346a(d), amend 40 CFR part 180 by changes aimed at reducing the aquatic submitted to: Hearing Clerk (1900), establishing a regulation to permit environmental exposure to pyrethroids, Environmental Protection Agency, Rm. residues of the insecticide deltamethrin and a program of data generation to M3708, 401 M St., SW., Washington, DC (S)-alpha-cyano-3-phenoxybenzyl- estimate the effectiveness of the steps 20460. Fees accompanying objections (1R,3R)-3-(2-2-dibromovinyl)-2,2- taken. As part of this interim risk- 42454 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations reduction program, the Agency agreed applied during the term of and in use on cotton does not contribute any to extend the registration and tolerances accordance with provisions of more to the dietary exposure for the of these cotton pyrethroids to November conditional registration. general population of children ages 1 to 15, 1993, and November 15, 1994, The scientific data submitted in 6 years. Generally speaking, EPA has no respectively. The registrations and time- support of these petitions and other cause for concern if total residue limited tolerances on cottonseed were relevant material have been evaluated. contribution for published tolerances is extended once again to November 15, The toxicology data considered in less than the RfD. EPA concludes that 1996, and November 15, 1997, support of these tolerances include: the chronic dietary risk of deltamethrin, respectively (see the Federal Register of 1. Chronic 2-year feeding in dogs with as estimated by the dietary risk February 22, 1995 (60 FR 9784)). These a systemic NOEL greater than 40 ppm assessment, does not appear to be of extensions were granted to allow time (highest does treated (HDT)). concern. for submission and evaluation of 2. A 24-month chronic feeding/ The nature of the deltamethrin additional environmental effects data. In carcinogenicity study in rats with a residue in plants and animals for this order to evaluate effects of pyrethroid systemic NOEL of 20 ppm (1 mg/kg/day) use is adequately understood. The on fish and aquatic organisms and its and LEL of 50 mg/kg/day based on residues of concern are combined fate in the environment, additional data decreased body weight. No carcinogenic residues of deltamethrin and its were required to be collected and effects were observed in the study. metabolites trans-deltamethrin and submitted during the period of 3. A carcinogenicity study in mice in alpha-R-deltamethrin. There is no conditional registration. Such which no evidence of carcinogenicity reasonable expectation of secondary requirements included a sediment was noted up to and including 100 ppm residues in eggs, meat, milk, or poultry bioavailability and toxicity study and a (HDT). from the proposed use as delineated in small-plot runoff study that must be 4. An oral development toxicity study 40 CFR 180.6(a)(3). submitted to the Agency by July 1, 1996. in rats with a developmental NOEL of An adequate analytical method To be consistent with the conditional 11 mg/kg/day (highest dose tested). The involving gas-liquid chromatography is registration and extension of maternal NOEL was 3.3 mg/kg/day with available for enforcement purposes. The pyrethroids on cottonseed, the Agency the LEL of 7 mg/kg/day based on one enforcement methodology has been is issuing a conditional registration for death and excessive salivation. An oral submitted to the Food and Drug deltamethrin on cotton with an developmental toxicity study in rabbits Administration, and published in the expiration date of November 15, 1996, with a maternal NOEL of 10 mg/kg/day Pesticide Analytical Manual, Vol. II and establish a time-limited tolerance and a maternal LEL of 25 mg/kg/day (PAM II). on cottonseed and cottonseed oil with based on decreased defecation. The There are currently no actions an expiration date of November 15, developmental NOEL was 25 mg/kg/day pending against the continued 1997, to cover residues expected to with a developmental LEL of 100 mg/ registration of this chemical. result from use during the period of kg/day based on statistically significant The pesticide is considered useful for conditional registration. increase in fetal incidence of the purposes for which it is sought and With respect to the use of unossification of pubic bone and tail capable of achieving its intended deltamethrin on cotton, the Agency bone. These skeletal variations were not physical or technical effect. Based on concluded that use of deltamethrin considered to be statistically significant. the information and data considered, would not cause a significant increase 5. A three-generation reproduction the Agency has determined that the in the risk of adverse effects to the study in rats noted no parental or fetal tolerances established by amending 40 environment. This conclusion was effects up to and including 50 ppm CFR part 180 would protect the public premised mainly on the following: (HDT). health and that use of the pesticide in 1. The short period of time the 6. A metabolism study in rats accordance with the tolerance registration would be in effect before the demonstrates that deltamethrin is established by amending 40 CFR part Agency completes its final regulatory relatively well absorbed and excreted. 185 would be safe. Therefore, the and risk reviews of cotton use of the Urine and fecal excretions were almost tolerances and food additive regulations pyrethroids. complete at 48 hours post dose. are established as set forth below. 2. HRAVC’s commitment to agree to 7. Mutagenicity tests included a Any person adversely affected by this the terms and conditions stipulated by reverse mutation Ames assay, a regulation may, within 30 days after the Agency for continued registration of structural chromosomal aberration assay publication of this document in the current cotton pyrethroid products. in Chinese hamster ovary (CHO) cells, Federal Register, file written objections These conditions include aquatic risk and an unscheduled DNA synthesis to the regulation and may also request mitigation language for the cotton use assay in rat hepatocytes. All tests were a hearing on those objections. labeling and conditional registration negative for genotoxicity. Objections and hearing requests must be subject to an Agency determination of A chronic dietary exposure/risk filed with the Hearing Clerk, at the aquatic risk. assessment was performed for address given above (40 CFR 178.20). A 3. The total number of treated acres of deltamethrin using a reference dose copy of the objections and/or hearing cotton is essentially the same and the (RfD) of 0.01 mg/kg bwt/day based on a requests filed with the Hearing Clerk registration of new pyrethroid on cotton, NOEL of 1.00 mg/kg bwt/day from a 2- should be submitted to the OPP docket such as deltamethrin, would result in no year rat feeding study with an for this rulemaking. The objections significant increase in the number of uncertainty factor of 100. The end-point submitted must specify the provisions acres treated. Instead, it would result in effect of concern was decreased body of the regulation deemed objectionable only changes in market share, i.e., the weight. The Theoretical Maximum and the grounds for the objections (40 percentage of acres that are treated with Residue Contribution from established CFR 178.25). Each objection must be any particular cotton pyrethroid. tolerances utilizes 3.7% of the RfD for accompanied by the fee prescribed by Residues remaining in or on the above the U.S. population and 7.3% in 40 CFR 180.33(i). If a hearing is commodities after expiration of these children ages 1 to 6 years old, the requested, the objections must include a tolerances will not be considered subgroup with the highest estimated statement of the factual issue(s) on actionable if the pesticide is legally exposure to deltamethrin residues. The which a hearing is requested, the Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42455 requestor’s contentions on such issues, Under Executive Order 12866 (58 FR Authority: 21 U.S.C. 346a and 371. and a summary of any evidence relied 51735, October 4, 1993), the Agency b. By revising § 180.435, to read as upon by the objector (40 CFR 178.27). A must determine whether the regulatory follows: request for a hearing will be granted if action is ‘‘significant’’ and therefore the Administrator determines that the subject to all the requirements of the § 180.435 Deltamethrin; tolerances for material submitted shows the following: Executive Order (i.e., Regulatory Impact residues. There is genuine and substantial issue Analysis, review by the Office of A tolerance is established for residues of fact; there is a reasonable possibility Management and Budget (OMB)). Under of the insecticide deltamethrin [(S)- that available evidence identified by the section 3(f), the order defines alpha-cyano-3-phenoxybenzyl-(1R,3R)- requestor would, if established, resolve ‘‘significant’’ as those actions likely to 3-(2,2-dibromovinyl)-2,2- one or more of such issues in favor of lead to a rule (1) having an annual effect dimethylcyclopropanecarboxylate] and the requestor, taking into account on the economy of $100 million or its major metabolites, trans- uncontested claims or facts to the more, or adversely and materially deltamethrin [(S)-alpha-cyano-m- contrary; and resolution of the factual affecting a sector of the economy, phenoxybenzyl(1R,3S)-3-(2,2- issue(s) in the manner sought by the productivity, competition, jobs, the dibromovinyl)-2,2- requestor would be adequate to justify environment, public health or safety, or dimethylcyclopropanecarboxylate] and the action requested (40 CFR 178.32). State, local or tribal governments or alpha-R-deltamethrin [(R)-alpha-cyano- A record has been established for this communities (also known as m-phenoxybenzyl-(1R,3R)-3-(2,2- rulemaking under docket number [PP ‘‘economically significant’’); (2) creating dibromovinyl)-2,2- 2F4055 and FAP 5H5719/R2151] serious inconsistency or otherwise dimethylcyclopropanecarboxylate] in or (including objections and hearing interfering with an action taken or on the following raw agricultural requests submitted electronically as planned by another agency; (3) commodities: described below). A public version of materially altering the budgetary this record, including printed, paper impacts of entitlement, grants, user fees, Commodity Parts per Expiration versions of electronic comments, which or loan programs; or (4) raising novel million date does not include any information legal or policy issues arising out of legal claimed as CBI, is available for mandates, the President’s priorities, or Cottonseed ...... 0.04 Nov. 15, inspection from 8 a.m. to 4:30 p.m., the principles set forth in this Executive Monday through Friday, excluding legal 1997 Order. Tomatoes ...... 0.2 None holidays. The public record is located in Pursuant to the terms of this Room 1132 of the Public Response and Executive Order, EPA has determined Program Resources Branch, Field that this rule is not ‘‘significant’’ and is PART 185Ð[AMENDED] Operations Division (7506C), Office of therefore not subject to OMB review. 2. In part 185: Pesticide Programs, Environmental Pursuant to the requirements of the a. The authority citation for part 185 Protection Agency, Crystal Mall #2, Regulatory Flexibility Act (Pub. L. 96- continues to read as follows: 1921 Jefferson Davis Highway, 354, 94 Stat. 1164, 5 U.S.C. 601-612), Arlington, VA. the Administrator has determined that Authority: 21 U.S.C. 346a and 348. Written objections and hearing regulations establishing new tolerances requests, identified by the document b. By revising § 185.1580, to read as or raising tolerance levels or follows: control number [PP 2F4055 and FAP establishing exemptions from tolerance 5H5719/R2151], may be submitted to requirements, or establishing or raising § 185.1580 Deltamethrin. the Hearing Clerk (1900), Environmental food additive regulations do not have a Tolerances are established for Protection Agency, Rm. 3708, 401 M St., significant economic impact on a residues of the insecticide deltamethrin SW., Washington, DC 20460. substantial number of small entities. A A copy of electronic objections and [(S)-alpha-cyano-3-phenoxybenzyl- certification statement to this effect was hearing requests filed with the Hearing (1R,3R)-3-(2,2-dibromovinyl)-2,2- published in the Federal Register of Clerk can be sent directly to EPA at: dimethylcyclopropanecarboxylate] and [email protected] May 4, 1981 (46 FR 24950). its major metabolites, trans- List of Subjects in 40 CFR Parts 180 and deltamethrin [(S)-alpha-cyano-m- A copy of electronic objections and 185 phenoxybenzyl(1R,3S)-3-(2,2- hearing requests filed with the Hearing dibromovinyl)-2,2- Environmental protection, dimethylcyclopropanecarboxylate] and Clerk must be submitted as an ASCII file Administrative practice and procedure, avoiding the use of special characters alpha-R-deltamethrin [(R)-alpha-cyano- Agricultural commodities, Food m-phenoxybenzyl-(1R,3R)-3-(2,2- and any form of encryption. additives, Pesticides and pests, The official record for this dibromovinyl)-2,2- Reporting and recordkeeping dimethylcyclopropanecarboxylate] in or rulemaking, as well as the public requirements. version, as described above will be kept on the following food commodities: in paper form. Accordingly, EPA will Dated: July 27, 1995. Parts per Expiration transfer any objections and hearing Daniel M. Barolo, Commodity million date requests received electronically into Director, Office of Pesticide Programs. printed, paper form as they are received and will place the paper copies in the Therefore, chapter I of title 40 of the Cottonseed oil ... 0.2 Nov. 15, official rulemaking record which will Code of Federal Regulations is amended 1997 also include all objections and hearing as follows: Tomato (prod- requests submitted directly in writing. ucts) con- PART 180Ð[AMENDED] The official rulemaking record is the centrated ...... 1.0 None paper record maintained at the address 1. In part 180: in ‘‘ADDRESSES’’ at the beginning of a. The authority citation for part 180 [FR Doc. 95–19796 Filed 8–15–95; 8:45 am] this document. continues to read as follows: BILLING CODE 6560±50±F 42456 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 40 CFR Parts 180 and 185 A copy of any objections and hearing scientific data submitted in the petition requests filed with the Hearing Clerk and other relevant material have been [PP 4F4342 and FAP 4H5711/R2153; FRL± 4966±8] may also be submitted electronically by evaluated. The toxicological data sending electronic mail (e-mail) to: opp- considered in support of the tolerance RIN 2070±AB78 [email protected]. Copies of include: objections and hearing requests must be 1. Several acute toxicity studies that Flutolanil; Pesticide Tolerances submitted as an ASCII file avoiding the place technical flutolanil in Toxicity AGENCY: Environmental Protection use of special characters and any form Category III (Caution). Data show Agency (EPA). of encryption. Copies of objections and minimal-to-slight irritation to the eye. hearing requests will also be accepted ACTION: Final rule. 2. A 90-day rat feeding study with a on disks in WordPerfect in 5.1 file systemic no-observed-effect level SUMMARY: This rule establishes format or ASCII file format. All copies (NOEL) of 37 mg/kg/day for males and tolerances for combined residues of of objections and hearing requests in 44 mg/kg/day for females and a systemic flutolanil (N-(3-(1- electronic form must be identified by lowest-effect-level (LEL) of 299 mg/kg/ methylethoxy)phenyl)-2- the document number [PP 4F4342 and day for males and 339 mg/kg/day for (trifluoromethyl)benzamide) and its FAP 4H5711/R2153]. No Confidential females based on increased absolute and metabolites converted to 2- Business Information (CBI) should be relative liver weights in both the 299- (trifluoromethyl) benzoic acid and submitted through e-mail. Electronic mg/kg/day males and the 339-mg/kg/ calculated as flutolanil in or on peanut copies of objections and hearing day females and the 1,512-mg/kg/day nutmeats at 0.5 part per million (ppm), requests on this rule may be filed online males and the 1,743-mg/kg/day females, peanut hulls at 5.0 ppm, peanut hay at at many Federal Depository Libraries. along with a slight decrease in body 15.0 ppm, meat, meat byproducts Additional information on electronic weight in the 1,512-mg/kg/day males. (mbyp) and milk of cattle, goats, hogs, submissions can be found below in this 3. A 90-day oral study in dogs with horses, and sheep at 0.05 ppm, fat of document. a systemic NOEL of 80 mg/kg/day and cattle, goats, hogs, horses, and sheep at FOR FURTHER INFORMATION CONTACT: By a systemic LEL of 400 mg/kg/day based 0.10 ppm, liver of cattle, goats, hogs, mail: Connie B. Welch, Product on enlarged livers and increased horses, and sheep at 2.0 ppm, kidney of Manager (PM) 21, Registration Division glycogen deposition in the livers of both cattle, goats, hogs, horses, and sheep at (7505C), Office of Pesticide Programs, males and females. High-dose (2,000 1.0 ppm, and poultry (including Environmental Protection Agency, 401 mg/kg/day) males and females showed turkeys) meat, mbyp, fat, and eggs at M St., SW., Washington, DC 20460. increased alkaline phosphatase levels 0.05 ppm; and in or on the processed Office location and telephone number: and cholesterol thyroid/parathyroid food commodity peanut meal at 1.0 ppm Rm. 227, CM #2, 1921 Jefferson Davis organ weights. when present therein as a result of Hwy., Arlington, VA 22202, (703)-305- 4. A 2-year feeding/carcinogenicity application of the fungicide to growing 6226; e-mail: study in rats with a systemic NOEL of crops. AgrEvo USA Co. submitted a [email protected]. 86.9 mg/kg/day for males and 103.1 mg/ petition pursuant to the Federal Food, SUPPLEMENTARY INFORMATION: EPA kg/day for females and a systemic LEL Drug and Cosmetic Act (FFDCA) for the issued a notice, published in the of 460.5 mg/kg/day for males and 535.8 regulation to establish a maximum Federal Register of February 8, 1995 (60 mg/kg/day for females based on reduced permissible level for residues of the FR 7540), which announced that AgrEvo body weight and body weight gain in fungicide. USA Co. had submitted pesticide males along with decreased and EFFECTIVE DATE: This regulation petitions (PP) 4F4342 and 4H5711 to absolute relative weights in females. becomes effective August 16, 1995. EPA requesting that the Administrator, Flutolanil was not carcinogenic under ADDRESSES: Written objections and pursuant to section 408(d) of the Federal the conditions of this study. hearing requests, identified by the Food, Drug, and Cosmetic Act (FFDCA), 5. A carcinogenicity study in mice document control number, [PP 4F4342 21 U.S.C. 346a(d), establish tolerances with a systemic NOEL of 735 mg/kg/day and FAP 4H5711/R2153], may be for combined residues of flutolanil (N- for males and 1,168 mg/kg/day for submitted to: Hearing Clerk (1900), (3-(1-methylethoxy)phenyl)-2- females and a systemic lowest-observed- Environmental Protection Agency, Rm. (trifluoromethyl)benzamide) and its effect level (LEL) of 13,333 mg/kg/day M3708, 401 M St., SW., Washington, DC metabolites converted to 2- for males and 1,839 mg/kg/day for 20460. Fees accompanying objections (trifluoromethyl) benzoic acid and females based on body weight gains in shall be labeled ‘‘Tolerance Petition calculated as flutolanil in or on peanut the high-dose females which were Fees’’ and forwarded to EPA nutmeats at 0.5 part per million (ppm), significantly lower than those of Headquarters Accounting Operations peanut hulls at 5.0 ppm, peanut hay at controls during the first 24 weeks of Branch, OPP (Tolerance Fees), P.O. Box 15.0 ppm, meat, mbyp, and milk of treatment. There were no effects of 360277M, Pittsburgh, PA 15251. A copy cattle, goats, hogs, horses, and sheep at biological importance on survival, of any objections and hearing requests 0.05 ppm, fat of cattle, goats, hogs, clinical signs, food intake, hematology, filed with the Hearing Clerk should be horses, and sheep at 0.10 ppm, liver of gross pathology, or histopathology. identified by the document control cattle, goats, hogs, horses, and sheep at Flutolanil was not carcinogenic under number and submitted to: Public 2.0 ppm, kidney of cattle, goats, hogs, the conditions of this study. Response and Program Resources horses, and sheep at 1.0 ppm, and 6. A 2-year oral feeding study in dogs Branch, Field Operations Division poultry meat, mbyp, fat and eggs with a systemic NOEL of 50 mg/kg/day (7506C), Office of Pesticide Programs, (including turkeys) at 0.05 ppm; and in for males and females and a systemic Environmental Protection Agency, 401 or on the processed food commodity LEL of 250 mg/kg/day based on M St., SW., Washington, DC 20460. In peanut meal at 1.0 ppm, when present increased incidence of clinical signs person, bring copy of objections and therein as a result of application of the (emesis, salivation, soft stools, lower hearing requests to Rm. 1132, CM #2, fungicide to growing crops. body weight gains and decreased food 1921 Jefferson Davis Hwy., Arlington, There were no comments received in consumption in the 250- and 1,250-mg/ VA 22202. response to the notice of filing. The kg group males and females). Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42457 7. A rat developmental toxicity study residues and percent crop treated that available evidence identified by the with a maternal NOEL of 1,000 mg/kg/ information were not available for this requestor would, if established, resolve day (limit dose) and a developmental analysis. one or more of such issues in favor of toxicity NOEL of 1,000 mg/kg/day (limit The residue analytical method will the requestor, taking into account dose). Developmental toxicity was not not be forwarded to FDA for publication uncontested claims or facts to the observed at any dose level. at this time. This method is available for contrary; and resolution of the factual 8. A rabbit developmental toxicity limited distribution from Calvin Furlow, issue(s) in the manner sought by the study with a maternal NOEL of 40 mg/ Public Response and Program Resources requestor would be adequate to justify kg/day and a maternal LEL of 200 mg/ Branch, Field Operations Division the action requested (40 CFR 178.32). kg/day based on increased resorptions (7506C), Office of Pesticide Programs, A record has been established for this in the 200- and 1,000-mg/kg group. A Environmental Protection Agency, 401 rulemaking under docket number, [PP developmental NOEL of 40 mg/kg/day, M St., SW., Washington, DC 20460. 4F4342 and FAP 4H5711/R2153] and a developmental LEL of 200 mg/kg/ Office location and telephone number: (including objections and hearing day were based on increased resorptions Rm. 1132, CM #2, 1921 Jefferson Davis requests submitted electronically as in the 200- and 1,000-mg/kg/day group. Hwy., Arlington, VA 22202, (703)-305- described below). A public version of 9. A two-generation rat reproduction 5232. It has the following disclaimer: this record, including printed, paper study with a parental toxicity NOEL of The method is for use only by versions of electronic comments, which 1,936 mg/kg/day (limit dose) and a experienced chemists who have does not include any information reproductive toxicity NOEL of 1,936 demonstrated knowledge of the claimed as CBI, is available for mg/kg/day (limit dose). principles of trace organic analysis; and inspection from 8 a.m. to 4:30 p.m., 10. Mutagenicity studies included: An have proven skills and abilities to run Monday through Friday, excluding legal Ames Assay which was negative; a complex residue analytical method holidays. The public record is located in Chromosome Aberration studies which obtaining accurate results at the part- Rm. 1132 of the Public response and showed flutolanil induced chromosomal per-billion level. Users of this method Program Resources Branch, Field aberrations in cultured Chinese hamster are expected to perform additional Operations Division (7506C), Office of lung cells in the presence of metabolic method validation prior to using the Pesticide Programs, Environmental activation; reverse data which showed method for either monitoring or Protection Agency, Crystal Mall #2, that flutolanil did not cause an increase enforcement. The method can detect 1921 Jefferson Davis Highway, in revertant colonies using Salmonella gross misuse. Arlington, VA. and E. coli strains; micronucleus assay There are currently no actions Written objections and hearing data which indicated that flutolanil, up pending against the continued requests, identified by the document to a dose of 10 gm/kg, did not induce registration of this chemical. control number, [PP 4F4342 and micronuclei in the bone marrow Based on the information and data 4H5711/R2153], may be submitted to: erythrocytes of male and female mice; considered, the Agency has determined Hearing Clerk (1900), Environmental unscheduled DNA synthesis (UDS) data that the tolerances established by Protection Agency, Rm. 3708, 401 M St., which showed that flutolanil did not amending 40 CFR parts 180 and 185 SW., Washington, DC 20460. induce UDS because the test compound will protect the public health. A copy of electronic objections and failed to induce a genotoxic response in Therefore, the tolerances are established hearing requests can be sent directly to the in vitro assay; and lymphoma as set forth below. EPA at: mutation test data which showed that Any person adversely affected by this [email protected]. flutolanil was found to be nonmutagenic regulation may, within 30 days after A copy of electronic objections and in the Mammalian Cell Gene Mutation publication of this document in the hearing requests may be submitted as an Assay. Federal Register, file written objections ASCII file avoiding the use of special The Reference Dose (RfD) used in the to the regulation and may also request characters and any form of encryption. analysis is 0.2 mg/kg bwt/day, based on a hearing on those objections. The official record for this an LEL of 63.7 mg/kg bwt/day from a Objections and hearing requests must be rulemaking, the public version, as three generation rat reproductive study filed with the Hearing Clerk, at the described above will be kept in paper with an uncertainty factor of 300 that address given above (40 CFR 178.20). A form. Accordingly, EPA will transfer demonstrated decreased body weight copy of the objections and/or hearing any objections and hearing requests gains and increased liver weights at the requests filed with the Hearing Clerk received electronically into printed, high dose of 661.8 mg/kg. Flutolanil is should be submitted to the OPP docket paper form as they are received and will classified as a group E carcinogen, for this rulemaking. The objections place the paper copies in the official showing no evidence of cancer in rats or submitted must specify the provisions rulemaking record which will also mice. The Theoretical Maximum of the regulation deemed objectionable include all objections and hearing Residue Contribution (TMRC) from the and the grounds for the objections (40 requests submitted directly in writing. current action is estimated at 0.000810 CFR 178.25). Each objection must be The official rulemaking record is the mg/kg bwt/day and utilizes less than 1 accompanied by the fee prescribed by paper record maintained at the address percent of the RfD for the general 40 CFR 180.33(i). If a hearing is in ‘‘ADDRESSES’’ at the beginning of population of the lower 48 States. The requested, the objections must include a this document. TMRCs for the most highly exposed statement of the factual issue(s) on Under Executive Order 12866 (58 FR subgroups, children (1 to 6 years old) is which a hearing is requested, the 51735, October 4, 1993), the Agency 0.003577 mg/kg bwt/day (1.8% of the requestor’s contentions on such issues, must determine whether the regulatory RfD). and a summary of any evidence relied action is ‘‘significant’’ and therefore As the first food use of this chemical, upon by the objector (40 CFR 178.27). A subject to all the requirements of the tolerances for flutolanil have yet to be request for a hearing will be granted if Executive Order (i.e., Regulatory Impact published in the CFR. Tolerance level the Administrator determines that the Analysis, review by the Office of residues and 100-percent-crop- treated material submitted shows the following: Management and Budget (OMB)). Under assumptions were made for the There is genuine and substantial issue section 3(f), the order defines proposed commodities. Anticipated of fact; there is a reasonable possibility ‘‘significant’’ as those actions likely to 42458 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations lead to a rule (1) having an annual effect (trifluoromethyl) benzoic acid and Parts per on the economy of $100 million or calculated as flutolanil in or on the Commodity million more, or adversely and materially following raw agricultural commodities: affecting a sector of the economy, Peanut meal ...... 1.0 productivity, competition, jobs, the Commodity Parts per environment, public health or safety, or million State, local or tribal governments or [FR Doc. 95–20015 Filed 8–15–95; 8:45 am] communities (also known as Cattle, fat ...... 0.10 BILLING CODE 6560±50±F ‘‘economically significant’’); (2) creating Cattle, kidney ...... 1.00 serious inconsistency or otherwise Cattle, liver ...... 2.00 interfering with an action taken or Cattle, mbyp ...... 0.05 40 CFR Parts 180 and 185 planned by another agency; (3) Cattle, meat ...... 0.05 [OPP±300389A; FRL±4967±9] materially altering the budgetary Cattle, milk ...... 0.05 Eggs ...... 0.05 RIN 2070±AB78 impacts of entitlement, grants, user fees, Goats, fat ...... 0.10 or loan programs; or (4) raising novel Goats, kidney ...... 1.00 Sodium Propionate, Methoprene, and legal or policy issues arising out of legal Goats, liver ...... 2.00 Heliothis zea NPV; Tolerance Actions mandates, the President’s priorities, or Goats, mbyp ...... 0.05 the principles set forth in this Executive Goats, meat ...... 0.05 AGENCY: Environmental Protection Order. Goats, milk ...... 0.05 Agency (EPA). Hogs, fat ...... 0.10 Pursuant to the terms of this ACTION: Final rule. Executive Order, EPA has determined Hogs, kidney ...... 1.00 Hogs, liver ...... 2.00 SUMMARY: that this rule is not ‘‘significant’’ and is Hogs, mbyp ...... 0.05 For each of the pesticides therefore not subject to OMB review. Hogs, meat ...... 0.05 subject to the actions listed in this rule, Pursuant to the requirements of the Hogs, milk ...... 0.05 EPA has completed the reregistration Regulatory Flexibility Act (Pub. L. 96- Horses, fat ...... 0.10 process and issued a Reregistration 354, 94 Stat. 1164, 5 U.S.C. 601-612), Horses, kidney ...... 1.00 Eligibility Document (RED). In the the Administrator has determined that Horses, liver ...... 2.00 reregistration process, all information to regulations establishing new tolerances Horses, mbyp ...... 0.05 support a pesticide’s continued or raising tolerance levels or Horses, meat ...... 0.05 registration is reviewed for adequacy Horses, milk ...... 0.05 establishing exemptions from tolerance Peanuts ...... 0.5 and, when needed, supplemented with requirements do not have a significant Peanut hay ...... 15.0 new scientific studies. Based on the economic impact on a substantial Peanut hulls ...... 5.0 RED tolerance assessments for the number of small entities. A certification Poultry (including turkerys), fat . 0.05 pesticide chemicals subject to this rule, statement to this effect was published in Poultry (including turkeys), EPA is taking the following tolerance the Federal Register of May 4, 1981 (46 mbyp ...... 0.05 actions: amending the exemptions from FR 24950). Poultry (including turkeys), the requirement of a tolerance for meat ...... 0.05 methoprene; revoking exemptions for List of Subjects in 40 CFR Part 180 Sheep, fat ...... 0.10 sodium propionate; and making Environmental protection, Sheep, kidney ...... 1.00 Sheep, liver ...... 2.00 wording changes to the exemption from Administrative practice and procedure, Sheep, meat ...... 0.05 the requirement of a tolerance for Agricultural commodities, Pesticides Sheep, mbyp ...... 0.05 Heliothis zea NPV. With this rule to and pests, Reporting and recordkeeping Sheep, milk ...... 0.05 amend the exemptions from the requirements. requirement of tolerances for Dated: July 31, 1995. PART 185Ð[AMENDED] methoprene, the Agency is correcting its position in the RED, which stated that Daniel M. Barolo, 2. In part 185: the exemptions should be revoked. The Director, Office of Pesticide Programs. a. The authority citation for part 185 Agency believes that exemptions from Therefore, chapter I of title 40 of the continues to read as follows: the requirement of tolerances for these Code of Federal Regulations is amended Authority: 21 U.S.C. 346a and 348. uses are appropriate. as follows: b. By adding new § 185.3385, to read EFFECTIVE DATE: This regulation becomes effective on August 16, 1995. PART 180Ð[AMENDED] as follows: ADDRESSES: Written objections and 1. In part 180: § 185.3385 Flutolanil (N-(3-(1- hearing requests, identified by the methylethoxy)phenyl)-2- a. The authority citation for part 180 (trifluoromethyl)benzamide). document control number, [OPP- continues to read as follows: 300389A], may be submitted to: Hearing A food additive regulation is Authority: 21 U.S.C. 346a and 371. Clerk (1900), Environmental Protection established permitting the combined Agency, Rm. M3708, 401 M St., SW., b. By adding new § 180.484, to read as residues of the insecticide flutolanil, N- Washington, DC 20460. Fees follows: (3-(1-methylethoxy)phenyl)-2- accompanying objections and hearing (trifluoromethyl)benzamide, and its requests shall be labeled ‘‘Tolerance § 180.484 Flutolanil (N-(3-(1- metabolites converted to 2- methylethoxy)phenyl)-2- Petition Fees’’ and forwarded to: EPA (trifluoromethyl) benzoic acid and (trifluoromethyl)benzamide); tolerances for Headquarters Accounting Operations residues. calculated as flutolanil in or on the Branch, OPP (Tolerance Fees), P.O. Box following processed food commodity: Tolerances are established for 360277M, Pittsburgh, PA 15251. A copy residues of flutolanil, N-(3-(1- Parts per of any objections and hearing requests methylethoxy)phenyl)-2- Commodity million filed with the Hearing Clerk should be (trifluoromethyl)benzamide, and its identified by the document control metabolites converted to 2- number and submitted to: Public Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42459 Response and Program Resources evaluated and discussed in the 3708, 401 M St., SW., Washington, DC Branch, Field Operations Division proposed rule. Based on the data and 20460. (7506C), Office of Pesticide Programs, information considered, the Agency A copy of electronic objections and Environmental Protection Agency, 401 concludes that the regulations issued in hearing requests filed with the Hearing M St., SW., Washington, DC 20460. In this document will protect the public Clerk can be sent directly to EPA at: person, bring copy of objections and health. Therefore, the regulations are [email protected] hearing requests to: Rm. 1132, CM #2, established as set forth below. 1921 Jefferson Davis Hwy., Arlington, Any person adversely affected by this A copy of electronic objections and VA 22202. regulation may, within 30 days after hearing requests filed with the Hearing A copy of objections and hearing publication of this document in the Clerk must be submitted as an ASCII file requests filed with the Hearing Clerk Federal Register, file written objections avoiding the use of special characters may also be submitted electronically by and/or request a hearing with the and any form of encryption. sending electronic mail (e-mail) to: opp- Hearing Clerk, at the address given The official record for this [email protected]. Copies of above (40 CFR 178.20). A copy of the rulemaking, as well as the public objections and hearing requests must be objections and/or hearing requests filed version, as described above will be kept submitted as an ASCII file avoiding the with the Hearing Clerk should be in paper form. Accordingly, EPA will use of special characters and any form submitted to the OPP docket for this transfer any objections and hearing of encryption. Copies of objections and rulemaking. The objections submitted requests received electronically into hearing requests will also be accepted must specify the provisions of the printed, paper form as they are received on disks in WordPerfect in 5.1 file regulation deemed objectionable and the and will place the paper copies in the format or ASCII file format. All copies grounds for the objections (40 CFR official rulemaking record which will of objections and hearing requests in 178.25). Each objection must be also include all objections and hearing electronic form must be identified by accompanied by the fee prescribed by requests submitted directly in writing. the docket number [OPP-300389A]. No 40 CFR 180.33(i). If a hearing is The official rulemaking record is the Confidential Business Information (CBI) requested, the objections must include a paper record maintained at the address should be submitted through e-mail. statement of the factual issue(s) on in ‘‘ADDRESSES’’ at the beginning of Electronic copies of objections and which a hearing is requested, the this document. Under Executive Order 12866 (58 FR hearing requests on this rule may be requestor’s contentions on such issues, 51735, Oct. 4, 1993), the Agency must filed online at many Federal Depository and a summary of any evidence relied determine whether the regulatory action Libraries. Additional information on upon by the objector (40 CFR 178.27). A is ‘‘significant’’ and therefore subject to electronic submissions can be found request for a hearing will be granted if below in this document. review by the Office of Management and the Administrator determines that the Budget (OMB) and the requirements of FOR FURTHER INFORMATION CONTACT: By material submitted shows the following: the Executive Order. Under section 3(f), mail: Philip Poli, Special Review and There is a genuine and substantial issue the order defines a ‘‘significant Reregistration Division (7505W), of fact; there is a reasonable possibility regulatory action’’ as an action that is Environmental Protection Agency, 401 that available evidence identified by the likely to result in a rule (1) having an M St., SW., Washington, DC 20460. requestor would, if established, resolve annual effect on the economy of $100 Office location and telephone number: one or more of such issues in favor of million or more, or adversely and Crystal Station #1, 3rd Floor, 2800 the requestor, taking into account materially affecting a sector of the Crystal Drive, Arlington, VA 22202, uncontested claims or facts to the economy, productivity, competition, (703)-308-8038; e-mail: contrary; and resolution of the factual jobs, the environment, public health or [email protected]. issue(s) in the manner sought by the safety, or State, local, or tribal SUPPLEMENTARY INFORMATION: In the requestor would be adequate to justify governments or communities (also Federal Register of June 28, 1995 (60 FR the action requested (40 CFR 178.32). referred to as ‘‘economically 33383), EPA issued a proposed rule A record has been established for this significant’’); (2) creating serious (FRL-4960-5) affecting 40 CFR 180.2, rulemaking under docket number [OPP- inconsistency or otherwise interfering 180.1015, 180.1027, 180.1033, and 300389A] (including any objections and with an action taken or planned by 185.4150 regarding various chemicals hearing requests submitted another agency; (3) materially altering and tolerance actions the Agency electronically as described below). A the budgetary impacts of entitlement, proposed to take. Specifically, EPA public version of this record, including grants, user fees, or loan programs or the proposed actions regarding the printed, paper versions of electronic rights and obligations of recipients following chemicals: Methoprene, the comments, which does not include any thereof; or (4) raising novel legal or revision of the methoprene regulation in information claimed as CBI, is available policy issues arising out of legal 40 CFR 180.1033 to reflect changed uses for inspection from 8 a.m. to 4:30 p.m., mandates, the President’s priorities, or and the revocation of the methoprene Monday through Friday, excluding legal the principles set forth in this Executive regulation in 40 CFR 185.4150; sodium holidays. The public record is located in Order. propionate, the revocation of Room 1132 of the Public Response and Pursuant to the terms of the Executive exemptions under 40 CFR 180.2(a) and Program Resources Branch, Field Order, EPA has determined that this 180.1015; and Heliothis zea NPV, the Operations Division (7506C), Office of rule is not ‘‘significant’’ and is therefore amendment of 40 CFR 180.1027 to Pesticide Programs, Environmental not subject to OMB review. better reflect the current viral Protection Agency, Crystal Mall #2, Pursuant to the requirements of the identification and testing technology. 1921 Jefferson Davis Highway, Regulatory Flexibility Act (Pub. L. 96- There were no comments or requests Arlington, VA. 354, 94 Stat. 1164, 5 U.S.C. 601-612), for referral to an advisory committee Written objections and hearing the Administrator has determined that received in response to the proposed requests, identified by the document regulations establishing new tolerances rule. control number [OPP-300389A], may be or raising tolerance levels or The data submitted with the proposal submitted to the Hearing Clerk (1900), establishing exemptions from tolerance and other relevant material have been Environmental Protection Agency, Rm. requirements do not have a significant 42460 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations economic impact on a substantial d. Section 180.1027 is revised to read dodecadienoate) in or on the food number of small entities. A certification as follows: additive commodity cereal grain milled statement to this effect was published in fractions (except flour and rice hulls). the Federal Register of May 4, 1981 (46 § 180.1027 Nuclear polyhedrosis virus of Heliothis zea; exemption from the [FR Doc. 95–20305 Filed 8–15–95; 8:45 am] FR 24950). requirement of a tolerance. BILLING CODE 6560±50±F List of Subjects in 40 CFR Parts 180 and (a) For the purposes of this section, 185 the viral insecticide must be produced 40 CFR Parts 185 and 186 Environmental protection, with an unaltered and unadulterated Administrative practice and procedure, inoculum of the single-embedded [PP 4H5683/R2156; FRL±4968±1] Heliothis zea nuclear polyhedrosis virus Agricultural commodities, Food RIN 2070±AB78 additives, Pesticides and pests, (HzSNPV). The identity of the seed Reporting and recordkeeping virus must be assured by periodic Hexazinone; Food/Feed Additive requirements. checks. Regulations (b) Each lot of active ingredient of the Dated: August 8, 1995. viral insecticide shall have the AGENCY: Environmental Protection Lois Rossi, following specifications: Agency (EPA). (1) The level of extraneous bacterial Director, Special Review and Reregistration ACTION: Final rule. Division, Office of Pesticide Programs. contamination of the final unformulated 7 Therefore, 40 CFR, chapter I, is viral insecticide should not exceed 10 SUMMARY: This document establishes amended as follows: colonies per gram as determined by an food and feed additive regulations for aerobic plate on trypticase soy agar. residues of the herbicide hexazinone (3- PART 180Ð[AMENDED] (2) Human pathogens, e.g., cyclohexyl-6-(dimethylamino)-1- Salmonella, Shigella, or Vibrio, must be methyl-1,3,5-triazine-2,4(1H,3H)-dione) 1. The authority citation for part 180 absent. and its metabolites (calculated as continues to read as follows: (3) Safety to mice as determined by an hexazinone) in sugarcane molasses. E.I. Authority: 21 U.S.C. 346a and 371. intraperitoneal injection study must be du Pont de Nemours & Co., Inc., 2. Section 180.2 is revised to read as demonstrated. petitioned for these regulations under follows: (4) Identity of the viral product, as the Federal Food, Drug and Cosmetic determined by the most sensitive and Act (FFDCA). § 180.2 Pesticide chemicals considered standardized analytical technique, e.g., EFFECTIVE DATE: safe. This regulation restriction endonuclease and/or SDS- becomes effective August 16, 1995. (a) As a general rule, pesticide PAGE analysis, must be demonstrated. chemicals other than benzaldehyde (c) Exemptions from the requirement ADDRESSES: Written objections and (when used as a bee repellant in the of a tolerance are established for the hearing requests, identified by the harvesting of honey), ferrous sulfate, residues of the microbial insecticide document control number, [PP 4H5683/ lime, lime-sulfur, potassium carbonate, Heliothis zea NPV, as specified in R2156], may be submitted to: Hearing potassium polysulfide, potassium paragraphs (a) and (b) of this section, in Clerk (1900), Environmental Protection sorbate, sodium carbonate, sodium or on all agricultural commmodities Agency, Rm. M3708, 401 M St., SW., chloride, sodium hypochlorite, sodium including: corn, cottonseed, beans, Washington, DC 20460. Fees polysulfide, sodium sesquicarbonate, lettuce, okra, peppers, sorghum, accompanying objections and hearing sorbic acid, sulfur, and when used as soybeans, and tomatoes. requests shall be labeled ‘‘Tolerance plant desiccants, sodium metasilicate e. Section 180.1033 is revised to read Petition Fees’’ and forwarded to: EPA (not to exceed 4 percent by weight in as follows: Headquarters Accounting Operations aqueous solution) and when used as Branch, OPP (Tolerance Fees), P.O. Box postharvest fungicide, citric acid, § 180.1033 Methoprene; exemption from 360277M, Pittsburgh, PA 15251. A copy the requirement of a tolerance. fumaric acid, oil of lemon, oil of orange, of any objections and hearing requests and sodium benzoate are not for the Methoprene is exempt from the filed with the Hearing Clerk should be purposes of section 408(a) of the Act requirement of a tolerance in or on all identified by the document control generally recognized as safe. raw agricultural commodities when number and submitted to: Public (b) Upon written request, the used to control mosquito larvae Response and Program Resources Registration Division will advise including pastures, rice fields, Branch, Field Operations Division interested persons whether a pesticide vineyards, date palm orchards, nut (7506C), Office of Pesticide Programs, chemical should be considered as orchards, berry orchards, and fruit Environmental Protection Agency, 401 poisonous or deleterious, or one not orchards. M St., SW., Washington, DC 20460. In generally recognized by qualified person, bring copy of objections and PART 185Ð[AMENDED] experts, as safe. hearing requests to: Rm. 1132, CM #2, 1921 Jefferson Davis Hwy., Arlington, (c) The training and experience 2. In part 185: VA 22202. necessary to qualify experts to evaluate a. The authority citation for part 185 A copy of objections and hearing the safety of pesticide chemicals for the continues to read as follows: purposes of section 408(a) of the Act are requests filed with the Hearing Clerk essentially the same as training and Authority: 21 U.S.C. 348. may also be submitted electronically by experience necessary to qualify experts b. Section 185.4150 is revised to read sending electronic mail (e-mail) to: opp- to serve on advisory committees as follows: [email protected]. Copies of prescribed by section 408(g) of the Act. objections and hearing requests must be § 185.4150 Methoprene. (See § 180.11.) submitted as an ASCII file avoiding the A tolerance of 10 parts per million is use of special characters and any form § 180.1015 [Removed] established for residues of isopropyl of encryption. Copies of objections and c. Section 180.1015 is removed. (E,E)-11-methoxy-3,7,11-trimethyl-2,4- hearing requests will also be accepted Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42461 on disks in WordPerfect in 5.1 file accompanied by the fee prescribed by The official rulemaking record is the format or ASCII file format. All copies 40 CFR 180.33(i). If a hearing is paper record maintained at the address of objections and hearing requests in requested, the objections must include a in ‘‘ADDRESSES’’ at the beginning of electronic form must be identified by statement of the factual issue(s) on this document. the docket number [PP 4H5683/R2156]. which a hearing is requested, the Under Executive Order 12866 (58 FR No Confidential Business Information requestor’s contentions on such issues, 51735, Oct. 4, 1993), the Agency must (CBI) should be submitted through e- and a summary of any evidence relied determine whether the regulatory action mail. Electronic copies of objections and upon by the objector (40 CFR 178.27). A is ‘‘significant’’ and therefore subject to hearing requests on this rule may be request for a hearing will be granted if review by the Office of Management and filed online at many Federal Depository the Administrator determines that the Budget (OMB) and the requirements of Libraries. Additional information on material submitted shows the following: the Executive Order. Under section 3(f), electronic submissions can be found There is a genuine and substantial issue the order defines a ‘‘significant below in this document. of fact; there is a reasonable possibility regulatory action’’ as an action that is FOR FURTHER INFORMATION CONTACT: By that available evidence identified by the likely to result in a rule (1) having an mail: Joanne I. Miller, Product Manager requestor would, if established, resolve annual effect on the economy of $100 (PM) 23, Registration Division (7505C), one or more of such issues in favor of million or more, or adversely and Environmental Protection Agency, 401 the requestor, taking into account materially affecting a sector of the M St., SW., Washington, DC 20460. uncontested claims or facts to the economy, productivity, competition, Office location and telephone number: contrary; and resolution of the factual jobs, the environment, public health or Rm. 237, 1921 Jefferson Davis Hwy., issue(s) in the manner sought by the safety, or State, local, or tribal Arlington, VA 22202, (703)-305-6224; e- requestor would be adequate to justify governments or communities (also mail: [email protected]. the action requested (40 CFR 178.32). referred to as ‘‘economically A record has been established for this SUPPLEMENTARY INFORMATION: In the significant’’); (2) creating serious rulemaking under docket number [FAP Federal Register of June 28, 1995 (60 FR inconsistency or otherwise interfering 4H5683/R2156] (including any 33387), EPA issued a proposed rule with an action taken or planned by objections and hearing requests (FRL-4968-1) that gave notice that E.I. another agency; (3) materially altering submitted electronically as described du Pont de Nemours & Co., Inc., had the budgetary impacts of entitlement, below). A public version of this record, petitioned EPA under sections 408 and grants, user fees, or loan programs or the including printed, paper versions of 409 of the FFDCA, 21 U.S.C. 346a and rights and obligations of recipients electronic comments, which does not 348, to amend 40 CFR 185.3575 and thereof; or (4) raising novel legal or include any information claimed as CBI, 186.3575 to establish food and feed policy issues arising out of legal is available for inspection from 8 a.m. to additive regulations, respectively, for mandates, the President’s priorities, or 4:30 p.m., Monday through Friday, combined residues of the herbicide the principles set forth in this Executive excluding legal holidays. The public hexazinone (3-cyclohexyl-6- Order. record is located in Room 1132 of the (dimethylamino)-1-methyl-1,3,5- Public Response and Program Resources Pursuant to the terms of the Executive triazine-2,4-(1H,3H)-dione) and its Branch, Field Operations Division Order, EPA has determined that this metabolites (calculated as hexazinone) (7506C), Office of Pesticide Programs, rule is not ‘‘significant’’ and is therefore in or on the food and feed additive Environmental Protection Agency, not subject to OMB review. commodity sugarcane molasses at 5.0 Crystal Mall #2, 1921 Jefferson Davis Pursuant to the requirements of the parts per million (ppm). Regulatory Flexibility Act (Pub. L. 96- There were no comments or requests Highway, Arlington, VA. Written objections and hearing 354, 94 Stat. 1164, 5 U.S.C. 601-612), for referral to an advisory committee requests, identified by the document the Administrator has determined that received in response to the proposed control number [FAP 4H5683/R2156], regulations establishing new tolerances rule. may be submitted to the Hearing Clerk or raising tolerance levels or The data submitted with the proposal (1900), Environmental Protection establishing exemptions from tolerance and other relevant material have been Agency, Rm. 3708, 401 M St., SW., requirements do not have a significant evaluated and discussed in the Washington, DC 20460. economic impact on a substantial proposed rule. Based on the data and A copy of electronic objections and number of small entities. A certification information considered, the Agency hearing requests filed with the Hearing statement to this effect was published in concludes that the food and feed Clerk can be sent directly to EPA at: the Federal Register of May 4, 1981 (46 additive regulations will protect the FR 24950). public health. Therefore, the regulations [email protected] are established as set forth below. A copy of electronic objections and List of Subjects in 40 CFR Parts 185 and Any person adversely affected by this hearing requests filed with the Hearing 186 regulation may, within 30 days after Clerk must be submitted as an ASCII file Environmental protection, publication of this document in the avoiding the use of special characters Administrative practice and procedure, Federal Register, file written objections and any form of encryption. and/or request a hearing with the The official record for this Agricultural commodities, Food Hearing Clerk, at the address given rulemaking, as well as the public additives, Feed additives, Pesticides and above (40 CFR 178.20). A copy of the version, as described above will be kept pests, Reporting and recordkeeping objections and/or hearing requests filed in paper form. Accordingly, EPA will requirements. with the Hearing Clerk should be transfer any objections and hearing Dated: July 31, 1995. submitted to the OPP docket for this requests received electronically into Stephen L. Johnson, rulemaking. The objections submitted printed, paper form as they are received Director, Registration Division, Office of must specify the provisions of the and will place the paper copies in the Pesticide Programs. regulation deemed objectionable and the official rulemaking record which will grounds for the objections (40 CFR also include all objections and hearing Therefore, 40 CFR parts 185 and 186 178.25). Each objection must be requests submitted directly in writing. are amended as follows: 42462 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations PART 185Ð[AMENDED] FEDERAL EMERGENCY construction of buildings in the special MANAGEMENT AGENCY flood hazard areas shown on the map. 1. In part 185: The Director finds that the delayed 44 CFR Part 64 effective dates would be contrary to the a. The authority citation for part 185 public interest. The Director also finds continues to read as follows: [Docket No. FEMA±7623] that notice and public procedure under 5 U.S.C. 553(b) are impracticable and Authority: 21 U.S.C. 346a and 371. List of Communities Eligible for the unnecessary. Sale of Flood Insurance National Environmental Policy Act b. By revising § 185.3575, to read as AGENCY: Federal Emergency follows: Management Agency (FEMA). This rule is categorically excluded ACTION: Final rule. from the requirements of 44 CFR Part § 185.3575 Hexazinone. 10, Environmental Considerations. No SUMMARY: This rule identifies environmental impact assessment has A food additive tolerance with communities participating in the been prepared. regional registration, as defined in National Flood Insurance Program Regulatory Flexibility Act § 180.1(n) and which excludes use of (NFIP). These communities have hexazinone on sugarcane in Florida, is applied to the program and have agreed The Associate Director certifies that established for combined residues of the to enact certain floodplain management this rule will not have a significant herbicide hexazinone (3-cyclohexyl-6- measures. The communities’ economic impact on a substantial (dimethylamino)-1-methyl-1,3,5- participation in the program authorizes number of small entities in accordance triazine-2,4(1H,3H)-dione) and its the sale of flood insurance to owners of with the Regulatory Flexibility Act, 5 metabolites (calculated as hexazinone) property located in the communities U.S.C. 601 et seq., because the rule in or on the following food commodity: listed. creates no additional burden, but lists EFFECTIVE DATES: The dates listed in the those communities eligible for the sale third column of the table. of flood insurance. Commodity Parts per million ADDRESSES: Flood insurance policies for Regulatory Classification property located in the communities listed can be obtained from any licensed This final rule is not a significant Sugarcane, molasses ...... 5.0 property insurance agent or broker regulatory action under the criteria of serving the eligible community, or from section 3(f) of Executive Order 12866 of the NFIP at: Post Office Box 6464, September 30, 1993, Regulatory PART 186Ð[AMENDED] Rockville, MD 20849, (800) 638–6620. Planning and Review, 58 FR 51735. FOR FURTHER INFORMATION CONTACT: Paperwork Reduction Act 2. In part 186: Robert F. Shea, Jr., Division Director, Program Implementation Division, This rule does not involve any a. The authority citation for part 186 Mitigation Directorate, 500 C Street, collection of information for purposes of continues to read as follows: SW., room 417, Washington, DC 20472, the Paperwork Reduction Act, 44 U.S.C. (202) 646–3619. 3501 et seq. Authority: 21 U.S.C. 348. SUPPLEMENTARY INFORMATION: The NFIP Executive Order 12612, Federalism enables property owners to purchase b. By revising § 186.3575, to read as flood insurance which is generally not This rule involves no policies that follows: otherwise available. In return, have federalism implications under communities agree to adopt and Executive Order 12612, Federalism, § 186.3575 Hexazinone. administer local floodplain management October 26, 1987, 3 CFR, 1987 Comp., measures aimed at protecting lives and p. 252. A feed additive tolerance with new construction from future flooding. Executive Order 12778, Civil Justice regional registration, as defined in Since the communities on the attached Reform § 180.1(n) and which excludes use of list have recently entered the NFIP, hexazinone on sugarcane in Florida, is subsidized flood insurance is now This rule meets the applicable established for combined residues of the available for property in the community. standards of section 2(b)(2) of Executive herbicide hexazinone (3-cyclohexyl-6- In addition, the Director of the Order 12778, October 25, 1991, 56 FR (dimethylamino)-1-methyl-1,3,5- Federal Emergency Management Agency 55195, 3 CFR, 1991 Comp., p. 309. triazine-2,4(1H,3H)-dione) and its has identified the special flood hazard List of Subjects in 44 CFR Part 64 metabolites (calculated as hexazinone) areas in some of these communities by in or on the following feed commodity: publishing a Flood Hazard Boundary Flood insurance, Floodplains. Map (FHBM) or Flood Insurance Rate Accordingly, 44 CFR part 64 is Parts per Map (FIRM). The date of the flood map, amended as follows: Commodity million if one has been published, is indicated in the fourth column of the table. In the PART 64Ð[AMENDED] communities listed where a flood map Sugarcane, molasses ...... 5.0 has been published, Section 102 of the 1. The authority citation for Part 64 Flood Disaster Protection Act of 1973, as continues to read as follows: amended, 42 U.S.C. 4012(a), requires Authority: 42 U.S.C. 4001 et seq., the purchase of flood insurance as a [FR Doc. 95–20012 Filed 8–15–95; 8:45 am] Reorganization Plan No. 3 of 1978, 3 CFR, condition of Federal or federally related 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, BILLING CODE 6560±50±F financial assistance for acquisition or 3 CFR, 1979 Comp., p. 376. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42463 § 64.6 [Amended] 2. The tables published under the authority of § 64.6 are amended as follows: Community Current effective State/Location No. Effective date of eligibility map date New EligiblesÐEmergency Program Illinois: Muncie, village of, Vermilion County ...... 170963 July 11, 1995 ...... Feb. 23, 1979. Maine: Littleton, town of, Aroostook County ...... 230428 ...... do ...... Mar. 21, 1975. Michigan: Concord, township of, Jackson County ...... 260946 ...... do ...... Montana: Superior, town of, Mineral County ...... 300128 ...... do ...... South Dakota: Big Stone City, city of, Grant County ... 460156 ...... do ...... Nov. 12, 1976. Texas: Taft, city of, San Patricio County ...... 481506 ...... do ...... North Dakota: Clifford, city of, Traill County ...... 380684 July 19, 1995...... South Carolina: Fairfax, town of, Allendale County ..... 450010 ...... do ...... Apr. 23, 1976. Michigan: Holmes, township of, Menominee County ...... 260457 July 28, 1995 ...... Spalding, township of, Menominee County ...... 260461 ...... do ...... Georgia: Coolidge, city of, Thomas County ...... 130169 ...... do ...... Apr. 2, 1976. Louisiana: Epps, village of, West Carroll County ...... 220283 ...... do ...... May 29, 1979. New EligiblesÐRegular Program Kentucky: Vine Grove, city of, Hardin County ...... 210096 July 18, 1995 ...... Nov. 4, 1988. South Carolina: Pelion, town of, Lexington County ...... 450135 July 17, 1995 ...... July 17, 1995. Maryland: Church Creek, town of, Dorchester County 240101 July 25, 1995 ...... Oct. 18, 1988. Reinstatements Mississippi: Stone County, unincorporated areas ...... 280300 Apr. 23, 1980, Emerg; Sept. 1, 1987, Reg; Sept. 1, Sept. 1, 1987. 1987, Susp; July 11, 1995, Rein. Massachusetts: Richmond, town of, Berkshire County 250038 July 25, 1975, Emerg; Dec. 4, 1985, Reg; Dec. 4, Dec. 4, 1985. 1985, Susp; July 11, 1995, Rein. Pennsylvania: Point Marion, borough of, Fayette 421617 July 3, 1974; Emerg; July 4, 1988, Reg; July 4, 1988, June 16, 1995. County. Susp; July 26, 1988, Rein; June 16, 1995, Susp; July 21, 1995 Rein. Nebraska: Paxton, village of, Keith County ...... 310130 Oct. 20, 1975, Emerg; Sept. 27, 1985, Reg; June 19, Sept. 27, 1985. 1989, Susp; July 5, 1995, Rein. Regular Program Conversions Region II New York: Evans, town of, Erie County ...... 360240 July 3, 1995, suspension withdrawn ...... July 3, 1995. Region III Virginia: Hampton, independent city ...... 515527 ...... do ...... Do. Region V Ohio: Malvern, village of, Carroll County ...... 390052 ...... do ...... Do. Region X Oregon: Fairview, city of, Multnomah County ...... 410180 ...... do ...... Do. Region II New York: Oswego, town of, Oswego County ...... 360657 July 17, 1995, suspension withdrawn ...... July 17, 1995. Richland, town of, Oswego County ...... 360660 ...... do ...... Do. Region IV Georgia: Glynn County, unincorporated areas ...... 130092 ...... do ...... Do. South Carolina: Cayce, city of, Lexington County ...... 450131 ...... do ...... Do. Lexington County, unincorporated areas ...... 450129 ...... do ...... Do. West Columbia, city of, Lexington County ...... 450140 ...... do ...... Do. Region V Minnesota: Andover, city of, Anoka County ...... 270689 ...... do ...... Do. Ohio: Miami County, unincorporated areas ...... 390398 ...... do ...... Do. Region VI Texas: Comal County, unincorporated areas ...... 485463 ...... do ...... Do. Schertz, city of, Bexar County ...... 480269 ...... do ...... Do. Sherman, city of, Grayson County ...... 485509 ...... do ...... Do. Region VII Missouri: Hayti Heights, city of, Pemiscot County ...... 290277 ...... do ...... Do. Nebraska: Blair, city of, Washington County ...... 310228 ...... do ...... Do. Region X Idado: Coeur d'Alene, city of, Kootenai County ...... 160078 ...... do ...... Do. Code for reading third column: Emerg.ÐEmergency; Reg.ÐRegular; Susp.ÐSuspension, Rein.ÐReinstatement. 42464 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations (Catalog of Federal Domestic Assistance No. operations of the National Endowment prohibitively high insurance costs. The 83.100, ‘‘Flood Insurance.’’) for the Arts, the National Endowment Senate noted that ‘‘anywhere from half Issued: August 10, 1995. for the Humanities, and the Institute of to two-thirds of the cost of an Robert H. Volland, Museum Services, including the joint international exhibition is the cost of Acting Deputy Associate Director, Mitigation support of activities. 20 U.S.C. Section insuring the material to be exhibited.’’ 4 Directorate. 971. Ronald Berman, Chairman of the [FR Doc. 95–20271 Filed 8–15–95; 8:45 am] Under the indemnification program, Federal Council, testified that without BILLING CODE 6718±21±P the United States Government indemnification provided in special guarantees to pay loss or damage claims, legislation enacted by the 93rd subject to certain limitations, arising out Congress, the insurance costs in of exhibitions containing items NATIONAL FOUNDATION ON THE connection with several widely determined by the Federal Council to be ARTS AND THE HUMANITIES attended exhibitions would have been of educational, cultural, historical or prohibitive.5 45 CFR Part 1160 scientific value the exhibition of which must be certified by the Director of the C. Regulatory Background RIN 3154±AAoo United States Information Agency as The Federal Council is the agency being in the national interest. In order charged by Congress with the Indemnities Under the Arts and to be eligible for indemnification, the responsibility to administer the Arts and Artifacts Indemnity Act objects must be on exhibition in the Artifacts Indemnity Act. In practice, the AGENCY: Federal Council on the Arts United States, or if outside this country Indemnity Program is administered for and the Humanities. preferably as part of an exchange of the Federal Council by the Museum exhibitions. Program of the National Endowment for ACTION: Final rule. B. Legislative History the Arts under the ‘‘Indemnities Under SUMMARY: The Federal Council on the the Arts and Artifacts Indemnity Act’’ On May 21, 1975, Senators Claiborne Arts and Humanities is adopting as a regulations (the ‘‘Regulations’’), which Pell (D, RI) and Jacob Javits (R, NY) final rule, without change, the are set forth at 45 CFR Part 1160. introduced the Arts and Artifacts provisions of a proposed rule that These Regulations have been Indemnity Act as an amendment to the revises the regulations implementing promulgated, and amended from time to reauthorization of the National the Arts and Artifacts Indemnity Act, as time, by the Federal Council pursuant to Foundation on the Arts and Humanities amended (20 U.S.C. 971–977) (the the express and implied rulemaking Act of 1965. According to the House ‘‘Act’’). The final rule permits the authorities granted by Congress to make Committee report, the purpose of the and amend rules needed for the indemnification of eligible items from statute was ‘‘to provide indemnities for the United States while on exhibition in effective administration of the exhibitions of artistic and humanistic indemnity program. Among other this country in connection with an endeavors, and for other purposes.’’ 1 exhibition of eligible items from outside things, Congress expressly granted the The Senate Committee stated that it Federal Council the authorities to of the United States. The final rule also believed that this purpose could be includes illustrations of exhibitions establish the terms and conditions of advanced ‘‘through the exchange of indemnity agreements; to set eligible for indemnification which are cultural activities and sharing by intended to provide further guidance to application procedures; and to establish nations of the world of their cultural claim adjustment procedures. 20 U.S.C. persons considering applying for the institutions and national wealth and indemnification of an international Sections 971(a)(2), 973(a), 975(a). treasure.’’ 2 For a number of years, the Federal exhibition. The final rule is not The broad purpose of the Act is intended to bring about a major shift in Council has considered the desirability echoed throughout the Act’s language of amending the Regulations to permit emphasis of the current policy or and legislative history. For example, in practice of the indemnity program. the indemnification of U.S.-owned loans testifying at joint hearings before the on exhibition in the United States in EFFECTIVE DATE: September 15, 1995. House Subcommittee on Select connection with certified international FOR FURTHER INFORMATION CONTACT: Education and the Senate Special exhibitions. As currently drafted, the Alice Whelihan, Indemnity Subcommittee on Arts and Humanities, Regulations do not cover domestic Administrator, National Endowment for Nancy Hanks, Chairman, National objects on loan to an international the Arts, 1100 Pennsylvania Avenue, Endowment for the Arts, stated: exhibition in the United States. The N.W., Washington, D.C. 20506, 202– Cultural exhibitions and exchanges of high Regulations provide, in pertinent part: 682–5442. quality should be encouraged by the laws An indemnity agreement made under these and policies of the United States regulations shall cover: SUPPLEMENTARY INFORMATION: Government. They are in the national interest (1) Eligible items from outside the United I. Background because of the personal, aesthetic, intellectual, and cultural benefits accruing to States while on exhibition in the United A. Statutory Background every man, woman and child of this nation States or who has the opportunity to experience these (2) Eligible items from the United States In 1975, the United States Congress beautiful and enlightening presentations. We while on exhibition outside this country, enacted the Arts and Artifacts believe that this country should do as much preferably when they are part of an exchange Indemnity Act which established an as any nation in the world to insure that of exhibitions. 45 CFR Section 1160.1. indemnity program administered by the these vitally important programs are On February 25, 1993, during a Federal Council on the Arts and the strengthened.3 lengthy discussion of the application of Humanities (the ‘‘Federal Council’’). 20 There was concern in Congress that the National Gallery of Art for the U.S.C. Sections 971–977. The Federal such exchanges were impeded by indemnification of the exhibition ‘‘Great Council is composed of the heads of French Paintings from the Barnes nineteen federal agencies and was 1 Id. 2 Id. established by Congress, among other 4 S. Rep. No. 289, 94th Cong., 1st Sess., at 1. things, to coordinate the policies and 3 H.R. Rep. No. 680, 94th Cong., 1st Sess., at 5. 5 H.R. Rep. No. 680, 94th Cong., 1st Sess., at 5. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42465 Foundation: Impressionist, Post- guard against potential abuses, the (‘‘Purpose and Scope’’) by adding the Impressionist and Early Modern,’’ the Federal Council will require that the following language: Federal Council concluded that the foreign loans be an integral or essential (3) eligible items from the United States eligibility criteria set forth in the component of the exhibition. while on exhibition in the United States if Regulations were more narrowly drawn Exhibitions consisting solely of the exhibition includes other eligible items than required under the Act. While the domestic items will continue to be from outside the United States. Council approved the indemnification ineligible for indemnification. On April 6, 1994, the Federal Council of the Barnes exhibition, which The Federal Council concluded that published in the Federal Register an consisted of one foreign-owned object because of the overall statutory cap on advance notice of proposed rulemaking and 80 domestically owned objects, a the program the proposed modification (ANPR) regarding the indemnification of Certificate of Indemnity ultimately did would not significantly increase the eligible items from the United States not issue because of legal uncertainties exposure of the Federal government to while on exhibition in this country in related to the Council’s action under its claims for loss or damage while connection with an exhibition of items current Regulations. To clarify providing important additional relief for from outside the United States. 59 FR eligibility issues for future actions, the U.S. borrowing institutions. Under the 16162–64, April 6, 1994. On July 6, Federal Council voted to amend its statutory cap, the Federal Council may 1995, the Federal Council published in regulations. not issue indemnity agreements the Federal Register a notice of After extensive discussion of the covering losses of more than an issue, the Federal Council resolved that proposed rulemaking which included aggregate of $3,000,000,000 at any one the Federal Council’s responses to the the proposed amendment to the time. The cap—and thereby the total Regulations would significantly comments received in response to the government exposure—remains the ANPR. 60 FR 35162–66, July 6, 1995. enhance its ability to provide the same whether the indemnity agreements American public with the benefits to a cover foreign or domestic content. II. Discussion of Comments Received high quality program of international Moreover, the fact that coverage during The Federal Council did not receive exhibitions while not significantly international transit, the time of greatest any comments in response to its notice increasing the exposure of the Federal risk, would not be required for loans of proposed rulemaking. government to pay loss or damage from U.S. lending institutions greatly claims nor significantly adding to the reduces the risk of additional losses. III. Regulatory Anlayses administrative burdens or costs of the The Federal Council further This rule is not a significant program. concluded that the proposed regulatory action for the purposes of The Federal Council concluded that amendment would not cause a Executive Order 12866 of September 20, widening the eligibility criteria under significant increase in either the number 1993. the Indemnity Program to include As required by the Regulatory coverage of U.S.-owned objects in of applications to the program or the administrative burdens associated with Flexibility Act, it is hereby certified that exhibitions that also include foreign- this rule will not have a significant owned loans would provide an applying or reviewing indemnification applications. This is the case because impact on small business entities. important benefit to U.S. cultural The Catalogue of Federal Domestic institutions and to the American public. under the current practice, applicants already are required to include Assistance number for the Arts and Under the current guidelines, U.S.- Artifacts Indemnity Program is 45–201. owned loans may be indemnified only information on domestic loans in their when exhibited abroad. The Federal applications, and indemnity panels For the Federal Council on the Arts and the Council concluded that if items from consider the educational, cultural, Humanities. abroad are of educational, cultural, historical or scientific value of both the Michael S. Shapiro, historical or scientific value, and their domestic and foreign items in Counsel to the Federal Council on the Arts exhibition has been certified by the determining whether to indemnify an and the Humanities. Director of the United States exhibition. For the reasons set forth in the Information Agency as being in the While the need to determine whether preamble, 45 CFR Part 1160 is amended national interest, thereby making them indemnification of the domestic content as follows: eligible for indemnification coverage, is appropriate will require an additional the U.S.-owned loans to the exhibition judgment made by the Federal Council, PART 1160ÐINDEMNITIES UNDER also should be eligible for it is similar in character to the THE ARTS AND ARTIFACTS indemnification. determinations already made by the INDEMNITY ACT The Federal Council stressed that the Federal Council in determining the 1. The authority citation for part 1160 amendment is not intended to bring appropriateness of indemnification of continues to read as follows: about a major shift in the emphasis of foreign content. Moreover, the same the current policy or practice of the options for technical assistance and Authority: 20 U.S.C. 971–977. indemnity program. Under the amended resubmission will be available for a 2. Section 1160.1 is amended by Regulations, indemnity coverage will rejected applicant as are currently revising paragraph (a) as follows: continue to be available primarily for available. the exhibition of items coming from On June 16, 1993, on the basis of § 1160.1 Purpose and scope. outside the United States. In these conclusions, the Federal Council (a) This part sets forth the exhibition determining whether to indemnify reaffirmed its vote of February 25, 1993 indemnity procedures of the Federal international exhibitions that also to amend the Regulations to permit the Council on the Arts and Humanities include U.S. loans, the Federal Council coverage of domestic items in under the Arts and Artifacts Indemnity will continue to apply the same general connection with international Act (Pub. L. 94–158) as required by standard of review—whether the exhibitions in the United States. section 2(a)(2) of the Act. exhibition taken as a whole is of Specifically, the Federal Council * * * * * educational, cultural, historical or approved a motion to promulgate 3. Sections 1160.4 through 1160.11 scientific significance. However, to regulations revising 45 CFR 1160.1 are redesignated as §§ 1160.5 through 42466 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 1160.12 and a new Section 1160.4 is decorative arts museums. He intends to DEPARTMENT OF TRANSPORTATION added to read as follows: borrow several of the quilts for the exhibition. Maritime Administration § 1160.4 Eligibility. Discussion An indemnity agreement made under 46 CFR Part 387 these regulations shall cover: Example 2 raises the question as to whether the American museum organizing [Docket No. R±157] (a) Eligible items from outside the the exhibition has included the British- United States while on exhibition in the owned American quilts merely to obtain RIN No. 2133±AB18 United States; insurance relief. In determining whether to (b) Eligible items from the United indemnify the entire exhibition, the Federal Utilization and Disposal of Surplus States while on exhibition outside this Council will evaluate the exhibition as a Federal Real Property for Development country, preferably when they are part whole and whether the foreign loans are or Operation of a Port Facility integral to achieving its educational, cultural of an exchange of exhibitions; and AGENCY: Maritime Administration, (c) Eligible items from the United and historical purposes. Here, it is likely that Department of Transportation. States while on exhibition in the United the Federal Council will conclude that the States, in connection with other eligible foreign work are not an essential component ACTION: Final rule. of the exhibition. The Federal Council also items from outside the United States may seek additional information from the SUMMARY: This rule provides guidance which are integral to the exhibition as applicant to determine whether the for implementation by the Secretary of a whole. objectives of the exhibition could have been Transportation, acting by and through Example 1 accomplished as satisfactorily by borrowing the Maritime Administrator, Maritime American quilts from U.S. collections. On Administration (Secretary), of Museum A, an American art museum, is these facts, the Federal Council in all organizing a retrospective exhibition which likelihood would deny indemnification for controlling regulations issued by the will include more than 150 works of art by the entire exhibition. Administrator of General Services the Impressionist painter Auguste Renoir. (Administrator), as authorized by Public The exhibition will present the full range of Example 3 Law 103–160. This rule prescribes the Renoir’s production for the first time ever in Museum A, an American museum, is terms, reservations, restrictions, and an American museum. Museums B and C, organizing an exhibition of the works of conditions under which the Secretary large national museums in Paris and London, James Watkins, a nineteenth century have agreed to lend 125 major works of art will convey surplus Federal real American painter, focusing on his studies of property and related personal property illustrating every aspect of Renoir’s career. human anatomy. Museum A has the foremost Museum A is also planning to include related collection of preparatory drawings related to to public entities for use in the works from other American public and Watkins’ major painting, ‘‘The Surgeon and development or operation of a port private collections which have not been seen His Students.’’ The painting is in the facility. together since the artist’s death in 1919. permanent collection of Museum B, located EFFECTIVE DATE: This rule is effective Museums D and E, major east coast American in the south of France, which has agreed to August 16, 1995. art museums, have agreed to lend 25 lend the painting for the exhibition. The masterworks by Renoir. The exhibition will exhibition will be shown at Museum B after FOR FURTHER INFORMATION CONTACT: open in Chicago and travel to San Francisco the U.S. tour. American Universities, C and James R. Carman, Acting Chief, Division and Washington. D, have also agreed to lend anatomical of Ports, Maritime Administration, Discussion illustrations and drawings which show MAR–830, Room 7201, 400 Seventh Watkins’ development as a draughtsman. The Street, SW., Washington, DC, 20590, Example 1 is a straightforward application exhibition and accompanying catalogue are (202) 366–4357. of the amended indemnity regulations. Under expected to shed new light on Watkins SUPPLEMENTARY INFORMATION: Due to the the old regulations, only the works of art contributions to art and scientific history. from Museums B and C, the foreign downsizing of the United States museums, would have been eligible for Discussion Government, surplus Federal real indemnification. Under the proposed Example 3 addresses the issue of whether property and related personal property Regulations, the works of art from American the Federal Council will indemnify an is becoming available which may be museums and other public and private exhibition even where the U.S. objects suitable for the development or collections also would be eligible for outnumber the foreign works. In determining operation of a port facility. Section 2927 indemnification. In determining whether to whether to indemnify the entire exhibition, of the National Defense Authorization indemnify the entire exhibition, the Federal the Federal Council will evaluate the Council will evaluate the exhibibition as a exhibition as a whole and the relationship of Act for Fiscal Year 1994, enacted whole and whether the foreign loans are the foreign loans to the educational, cultural, November 30, 1993, Public Law 103– integral to the educational, cultural, historical and scientific significance of the 160, amended Section 203 of the historical or scientific significance of the exhibition. In this example, the exhibition Federal Property and Administrative exhibition. In this example, the Federal promises to make important contributions Services Act of 1949 (40 U.S.C. 484) to Council would likely approve not only to the history of art but also to the provide that under such regulations as indemnification of the entire exhibit. history of science. While there is only a the Administrator, after consultation Example 2 single foreign work of art, it is clearly an with the Secretary of Defense, may essential component of the exhibition as a Museum A in Massachusetts is organizing whole. The case for indemnification of the prescribe, the Administrator or the an exhibition celebrating 250 Years of entire exhibition is further strengthened by Secretary of Defense, in the case of Decorative Arts in America, to be held in the fact that a foreign masterpiece, which is property located at a military conjunction with the state’s celebration of the closely related to the preparatory drawings installation closed or realigned pursuant millennium. Included among the objects to and anatomical illustrations and drawings to a base closure law, may, in his or her be borrowed from museums and historical owned by American institutions, will be discretion, assign to the Secretary for societies in the United States are furniture, made available to the American public. Thus, disposal such surplus real property, textiles, metalwork, ceramics, glass and the mere fact that the U.S. loans outnumber jewelry, illustrating the best examples of including buildings, fixtures, and the foreign works will not in itself disqualify equipment situated thereon, as is American design from colonial times to the the entire exhibition for indemnification. present. The curator traveled abroad recently recommended by the Secretary as being and saw an exhibition of American quilts [FR Doc. 95–20189 Filed 8–15–95; 8:45 am] needed for the development or which have been acquired by a British BILLING CODE 7536±01±M operation of a port facility. The Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42467 Secretary of Transportation delegated have sufficient federalism implications § 12.2 Definitions. the authority to convey such real and to warrant the preparation of a (a) Act means the Federal Property personal surplus Federal property to the Federalism Assessment. and Administrative Services Act of 1949 Maritime Administrator (59 FR 36987, as amended, 40 U.S.C. 471 et seq., and Regulatory Flexibility Act July 20, 1994). The Administrator has 41 CFR 101–47. Terms defined in the issued a final rule (60 FR 35706, July 11, The Secretary certifies that this Act and not defined in this section have 1995). rulemaking will not have a significant the meanings given to them in the Act. This rule establishes the terms, economic impact on a substantial (b) Applicant means any State, the reservations, restrictions, and number of small entities. District of Columbia, the conditions of the conveyance, as Commonwealth of Puerto Rico, Guam, Environmental Assessment required by Public Law 103–160, which American Samoa, the Virgin Islands, the are consistent with the controlling The Secretary has considered the Trust Territory of the Pacific Islands, the regulations at 41 CFR 101–47.308–10. environmental impact of this Commonwealth of the Northern Mariana Most of the terms, reservations, rulemaking and has concluded that the Islands, or any political subdivision, restrictions, and conditions used in this Secretary, as a sponsoring agency under municipality, or instrumentality thereof, rule are found in other surplus Federal the port facility conveyance, is not that has submitted an application to the property conveyance program required to prepare an environmental Secretary to obtain surplus Federal regulations of Federal agencies. The port assessment under the National property. facility definition is new and was Environmental Policy Act of 1969 (c) Disposal Agency means the developed by the Secretary to (NEPA). The Secretary will insure that executive agency of the Government implement the conveyance program. the reuse plan submitted by an which has authority to assign property Rulemaking Analyses and Notices applicant complies with the provisions to the Secretary for conveyance for of NEPA as prepared by the disposal development or operation of a port This rulemaking has been reviewed agency. facility. under Executive Order 12866 and (d) Grantee means the Applicant to Paperwork Reduction Act Department of Transportation which surplus Federal property is Regulatory Policies and Procedures (44 This rulemaking contains a reporting conveyed. FR 11034, February 26, 1979). It is not requirement that is subject to the Office (e) Grantor means the Secretary. considered to be an economically of Management and Budget (OMB) (f) Port Facility means any structure significant regulatory action under approval under 5 CFR Part 1320, and improved property, including Section 3(f) of E.O. 12866, since it has pursuant to the Paperwork Reduction services connected therewith, whether been determined that it is not likely to Act of 1980 (44 U.S.C. 3501 et seq.), as located on the waterfront or inland, result in a rule that may have an annual amended, and is being (or has been) which is used or intended for use in effect on the economy of $100 million submitted. developing, transferring, or assisting or more or adversely affect in a material maritime commerce and water way the economy, a sector of the List of Subjects in 46 CFR Part 387 dependent industries, including, but not economy, productivity, competition, Government property management, limited to, piers, wharves, yards, docks, jobs, the environment, public health or Surplus Government property. berths, aprons, equipment used to load safety, or State, local, or tribal Accordingly, new 46 CFR Part 387 is and discharge cargo and passengers governments or communities. This rule added to read as follows: from vessels, dry and cold storage would not significantly affect other spaces, terminal and warehouse Federal agencies; would not materially PART 387ÐUTILIZATION AND buildings, bulk and liquid storage alter budgetary impacts; does not raise DISPOSAL OF SURPLUS FEDERAL terminals, tank farms, multimodal novel legal or policy issues arising out REAL PROPERTY FOR transfer terminals, transshipment and of legal mandates, the President’s DEVELOPMENT OR OPERATION OF A receiving stations, marinas, foreign trade priorities or the principles set forth in PORT FACILITY zones, shipyards, industrial property, E.O. 12866, and has been determined to fishing and aquaculture structures, be a nonsignificant rule under the Sec. mixed use waterfront complexes, 12.1 Scope. Department Regulatory Policies and connecting channels and port landside Procedures. Accordingly, it is not 12.2 Definitions. 12.3 Notice of availability of surplus transportation access routes. considered to be a significant regulatory property. (g) Secretary means the Secretary of action under E.O. 12866. Since this is a 12.4 Applications. Transportation acting by and through matter relating to public property it is 12.5 Surplus property assignment the Maritime Administrator, Maritime exempt from the notice requirements of recommendation. Administration by delegation of the Administrative Procedure Act (5 12.6 Terms, reservations, restrictions, and authority. U.S.C. 553 (a)(2)). Furthermore, it is conditions of conveyance. (h) Surplus Property means Federal necessary to finalize guidelines to Authority: Pub. L. 103–160, 107 stat. 1933 real and related personal property duly facilitate and expedite the selection of (40 U.S.C. 484 (q)) determined to be unneeded by a Federal the recipients of properties and the § 12.1 Scope. agency which may be conveyed to an actual conveyance. Applicant for use in the development or This rule has not been reviewed by This part is applicable to Surplus operation of a port facility. the Office of Management and Budget. Property that is recommended by the Secretary as being needed for the § 12.3 Notice of availability of surplus Federalism development or operation of a Port property. The Secretary has analyzed this Facility and is appropriate for being The Disposal Agency shall publish rulemaking in accordance with the assigned to, or that has been assigned to notices of availability of excess and principles and criteria contained in the Secretary for conveyance as surplus Federal real and personal Executive Order 12612 and has provided for in Public Law 103–160 and property. The Secretary will advise determined that these regulations do not 40 U.S.C. 471 et seq. eligible public port agencies, in an 42468 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations appropriate manner, of the availability where is’’ basis without any warranty, with any or all of the terms, of Surplus Property that is deemed to expressed or implied. reservations, restrictions and conditions have port facility potential. Potential (c) Property shall be used and set forth in the application and the Applicants shall notify the Secretary, in maintained in perpetuity for the deed. writing, of a desire to acquire surplus purpose for which it was conveyed, and (m) The Grantee shall keep up to date Federal property before the expiration of that if the property ceases to be used or at all times a Port Facility layout map the notice period specified in the Notice maintained for that purpose, all or any of the property described herein of Surplus Property—Government portion of the property shall, in its then showing: Property. existing condition, at the option of the (1) the boundaries of the Port Facility Government, revert to the Government. and all proposed additions thereto, and § 12.4 Applications. (d) The entire Port Facility, including (2) the location of all existing and Application forms for conveyance of all structures, improvements, facilities proposed port facilities and structures, Surplus Property can be obtained from and equipment in which the deed including all proposed extensions and the Maritime Administration, Division conveys any interest shall be reductions of existing port facilities. of Ports, 400 Seventh Street, SW, maintained at all times in safe and (n) In the event that any of the terms, Washington, DC 20590. The applicant serviceable condition, to assure its reservations, restrictions and conditions shall identify on the application form efficient operation and use, provided, are not met, observed, or complied with the requested property, agree to the however, that such maintenance shall by the Grantee, the title, right of terms/conditions of the conveyance and be required as to structures, possession and all other rights conveyed shall also submit a Port Facility improvements, facilities and equipment by the deed to the Grantee, or any Redevelopment Plan (PFRP) which only during the useful life thereof, as portion thereof, shall, at the option of details the plan of use for the property determined by the Grantor. the Grantor revert to the Government, in and the associated economic (e) No property conveyed shall be its then existing condition sixty (60) development plan. mortgaged or otherwise disposed of, or days following the date upon which rights or interest granted by the Grantee demand to this effect is made in writing § 12.5 Surplus property assignment without the prior written consent of the recommendation. by Grantor or its successor in function, Grantor. However, the Grantor will only Before any assignment unless within said sixty (60) days such review leases of five years or more to default or violation shall have been recommendation is submitted to the determine the interest granted therein. Disposal Agency by the Secretary the cured and all such terms, reservations, (f) Property conveyed for a Port restrictions and conditions shall have following conditions shall be met: Facility shall be used and maintained (a) The Secretary has received and been met, observed, or complied with, for the use and benefit of the public on in which event said reversion shall not approved an application for the fair and reasonable terms, without property. occur. discrimination. (o) The deed will contain a (b) The Applicant is able, willing, and (g) The Grantee shall, insofar as it is severability clause dealing with the authorized to assume immediate within its powers and to the extent terms, reservations, restrictions and possession of the property and pay reasonable, adequately protect the water conditions of conveyance. administrative expenses incidental to and land access to the Port Facility. the conveyance (application (h) The Grantee shall operate and (p) The Grantee shall remain at all preparation, documentation, legal and maintain in a safe and serviceable times a State, the District of Columbia, land transfer costs). condition, as deemed reasonably the Commonwealth of Puerto Rico, (c) The Secretary, after consultation necessary by Grantor, the port and all Guam, American Samoa, the Virgin with the Secretary of Labor, has facilities thereon and connected Islands, the Trust Territory of the Pacific determined that the property to be therewith which are necessary to service Islands, the Commonwealth of the conveyed is located in an area of serious the maritime users of the Port Facility Northern Mariana Islands, or any economic disruption. and will not permit any activity thereon political subdivision, municipality, or (d) The Secretary, after consultation which would interfere with its use as a instrumentality thereof. with the Secretary of Commerce, Port Facility. (q) The Grantee shall comply at all approves the PFRP as part of a necessary (i) The Port Facility is subject to the times with all applicable provisions of economic development program. provisions of Title 46 Code of Federal law, including, the Water Resources (e) The Secretary determines that the Regulations (CFR) Part 340. Development Act of 1990. application complies with the (j) The Grantee shall furnish the (r) The Grantee shall not modify, provisions of the National Grantor such financial, operational and amend or otherwise change its approved Environmental Policy Act of 1969 as annual utilization reports as may be PFRP without the prior written consent prepared by the Disposal Agency. required. of Grantor and shall implement the (k) Where construction or major PFRP as approved by the Grantor. § 12.6 Terms, reservations, restrictions, renovation is not required or proposed, (s) The Government under Section and conditions of conveyance. the Port Facility shall be placed into use 120 (h)(3) of the Comprehensive, (a) Conveyances of property shall be within twelve (12) months from the date Environmental Response, Compensation on forms approved by, and available of this conveyance. Where construction and Liability Act of 1980, as amended, from the Secretary, and shall include or major renovation is contemplated at warrants that: such terms, reservations, restrictions the time of conveyance, the property (1) all remedial action necessary to and conditions set forth in this part and shall be placed in service according to protect human health and the such other terms, reservations, the redevelopment time table approved environment with respect to any restrictions and conditions as the by the Grantor in the PFRP. hazardous substance on the property Secretary may deem appropriate or (l) The Grantee shall not enter into has been taken before the date of the necessary. any transaction which would operate to conveyance, and (b) Property shall be conveyed by a deprive it of any of the rights and (2) any additional remedial action quitclaim deed or deeds on an ‘‘as is, powers necessary to perform or comply found to be necessary after the date of Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42469 the conveyance shall be conducted by the Grantor and the Government from size class ABT to be harvested from the the Government. any and all claims, demands, costs or Regulatory Area by vessels permitted in (t) The Government reserves the right judgments for damages to persons or the Harpoon Boat category. The of access to any and all portions of the property that may arise from the use of Assistant Administrator for Fisheries, property for purposes of environmental the property by the Grantee, guests, NOAA (AA) is authorized under investigation, remediation or other employees and lessees. § 285.20(b)(1) to monitor the catch and corrective action and compliance (dd) The Grantor, on written request landing statistics and, on the basis of inspection purposes. from the Grantee, may grant release these statistics, to project a date when (u) The Grantee shall agree that in the from any of the terms, reservations, the total catch of ABT will equal any event, the Grantor exercises its option to restrictions and conditions contained in quota under § 285.22. The AA is further revert all right, title, and interest in and the deed, or the Grantor may release the authorized under § 285.20(b)(1) to to any portion of the property to the Grantee from any terms, restrictions, prohibit fishing for, or retention of, ABT Government, or Grantee voluntarily reservations or conditions if the Grantor by the category of gear subject to the returns title to the property in lieu of a determines that the property so quotas. reverter, the Grantee shall provide conveyed no longer serves the purpose Based on landing reports, the AA has protection to, and maintenance of the for which it was conveyed. determined that the quota of ABT property at all times until such time as (ee) The Grantor shall make reforms, allocated for the Harpoon Boat category the title is actually reverted or returned corrections or amendments to the deed for 1995 will be attained by August 11, to and accepted by the Government. if necessary to correct such deed or to 1995. Fishing for, retention, possession, Such protection and maintenance shall, conform such deed to the requirements or landing of large medium or giant size at a minimum, conform to the standards of applicable law. class ABT by vessels permitted in the prescribed in regulations implementing Dated: August 10, 1995. Harpoon Boat category must cease at the Act. By order of the Maritime Administrator. 2330 hours on August 11, 1995. (v) The Grantor expressly reserves Joel C. Richard, from the conveyance: Classification (1) oil, gas and mineral rights, Secretary, Maritime Administrator. (2) improvements without land, [FR Doc. 95–20180 Filed 8–15–95; 8:45 am] This action is taken under the (3) military chapels, and BILLING CODE 4910±81±P authority of 50 CFR 285.20, and is (4) property disposed of pursuant to exempt from review under E.O. 12866. 204 (c) of the Act. Authority: 16 U.S.C. 971–971h. (w) The Government reserves all right, DEPARTMENT OF COMMERCE Dated: August 10, 1995. title, and interest in and to all property of whatsoever nature not specifically National Oceanic and Atmospheric Richard W. Surdi, conveyed, together with right of removal Administration Acting Director, Office of Fisheries thereof from the Port Facility within one Conservation and Management, National Marine Fisheries Service. (1) year from the date of the deed. 50 CFR Part 285 [FR Doc. 95–20202 Filed 8–10–95; 3:51 pm] (x) The Grantee shall agree to [I.D. 081095A] maintain any portion of the property BILLING CODE 3510±22±F identified as ‘‘historical’’ in accordance Atlantic Tuna Fisheries; Harpoon Boat with recommended approaches in the Category Closure 50 CFR Part 661 Secretary of Interior Standards for Historic Property at 16 U.S.C. 461– AGENCY: National Marine Fisheries 470w–6. Service (NMFS), National Oceanic and [Docket No. 950426116±5116±01; I.D. (y) Prior to the use of any property by Atmospheric Administration (NOAA), 080395B] children under seven (7) years of age, Commerce. Ocean Salmon Fisheries Off the the Grantee shall remove all lead-based ACTION: Harpoon Boat Category Closure. Coasts of Washington, Oregon, and paint hazards and all potential lead- SUMMARY: NMFS closes the Atlantic California; Closure From Sisters Rocks based paint hazards in accordance with bluefin tuna (ABT) fishery conducted by to Mack Arch, OR applicable lead-based paint laws and vessels permitted in the Harpoon Boat regulations. category. This closure is necessary since AGENCY: National Marine Fisheries (z) The Grantee agrees that any the annual quota for this category has Service (NMFS), National Oceanic and construction or alteration is prohibited been attained. Atmospheric Administration (NOAA), unless a determination of no hazard to Commerce. air navigation is issued by the Federal EFFECTIVE DATE: The closure is effective Aviation Administration. from 2330 hours local time on August ACTION: Closure. (aa) The Grantee shall agree that in its 11, 1995, through December 31, 1995. use and occupancy of the Port Facility FOR FURTHER INFORMATION CONTACT: John SUMMARY: NMFS announces that the it shall comply with all laws relating to D. Kelly, 301–713–2347 or Kevin B. commercial salmon fishery in the area asbestos. Foster, 508–281–9260. from Sisters Rocks to Mack Arch, OR, (bb) All construction on any portion SUPPLEMENTARY INFORMATION: was closed at 12 midnight, July 25, of the property identified as ‘‘wetlands’’ Regulations implemented under 1995. The Director, Northwest Region, as determined by the appropriate authority of the Atlantic Tunas NMFS (Regional Director), has District of the Army Corps of Engineers Convention Act (16 U.S.C. 971–971h) determined that the commercial quota shall comply with Department of the pertaining to harvest of Atlantic tunas of 1,200 chinook salmon for the area has Army Wetland Construction by persons and vessels subject to U.S. been reached. This action is necessary Restrictions contained in Title 33 CFR, jurisdiction appear at 50 CFR part 285. to conform to the preseason Parts 320 through 330. Section 285.22(b) of the regulations announcement of the 1995 management (cc) The Grantee shall agree to provides for an annual quota of 47 measures and is intended to ensure maintain, indemnify and hold harmless metric tons of large medium and giant conservation of chinook salmon. 42470 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations DATES: Effective at 2400 hours local broadcasts on Channel 16 VHF-FM and the North Pacific Fishery Management time, July 25, 1995. Comments will be 2182 KHz. Because of the need for Council, P.O. Box 103136, Anchorage, accepted through August 31, 1995. immediate action to conserve chinook AK 99510. ADDRESSES: Comments may be mailed to salmon, NMFS has determined that FOR FURTHER INFORMATION CONTACT: William Stelle, Jr., Director, Northwest good cause exists for this action to be Susan Salveson, 907–586–7228. Region, National Marine Fisheries issued without affording a prior SUPPLEMENTARY INFORMATION: Service, NOAA, 7600 Sand Point Way opportunity for public comment. This Regulations implementing the NE., BIN C15700–Bldg. 1, Seattle, WA action does not apply to other fisheries Research Plan became effective October 98115–0070. Information relevant to that may be operating in other areas. 6, 1994 (59 FR 46126, September 6, this action has been compiled in Classification 1994). The purpose for, and description aggregate form and is available for of, the Research Plan are contained in This action is authorized by 50 CFR public review during business hours at the preamble to the final rule (59 FR 661.21 and 661.23 and is exempt from the office of the Regional Director. 46126, September 6, 1994). review under E.O. 12866. FOR FURTHER INFORMATION CONTACT: At its April 1995 meeting, the North William L. Robinson, 206–526–6140. Authority: 16 U.S.C. 1801 et seq. Pacific Fishery Management Council SUPPLEMENTARY INFORMATION: Dated: August 9, 1995. (Council) requested that NMFS initiate Regulations governing the ocean salmon Richard W. Surdi, rulemaking to revise 1995 crab observer fisheries at 50 CFR 661.21(a)(1) state Acting Director, Office of Fisheries coverage requirements set out under that, when a quota for the commercial Conservation and Management, National regulations implementing the Research or the recreational fishery, or both, for Marine Fisheries Service. Plan. The Council also requested NMFS any salmon species in any portion of the [FR Doc. 95–20177 Filed 8–15–95; 8:45 am] to exempt catcher vessels participating fishery management area is projected by BILLING CODE 3510±22±F in the Adak and Dutch Harbor king crab the Regional Director to be reached on fisheries from the 1995 Research Plan or by a certain date, the Secretary of fees. Commerce will, by notice issued under 50 CFR Part 677 A proposed rule to implement the § 661.23, close the commercial or Council’s request was published in the recreational fishery, or both, for all [Docket No. 950615155±5200±02; Federal Register on June 30, 1995 (60 I.D. 060695A] salmon species in the portion of the FR 34228). Comments on the proposed fishery management area to which the RIN 0648±AI01 rule were invited through July 12, 1995. quota applies as of the date the quota is No written comments were received projected to be reached. North Pacific Fisheries Research Plan; within the comment period. In the annual management measures Crab Vessel Fee Exemption Upon reviewing the reasons for for ocean salmon fisheries (60 FR 21746, exempting certain crab catcher vessels AGENCY: National Marine Fisheries May 3, 1995), NMFS announced that the from the 1995 fee assessments under the Service (NMFS), National Oceanic and 1995 commercial fishery in the area Research Plan, NMFS has determined Atmospheric Administration (NOAA), between Sisters Rocks and Mack Arch, that this final rule implementing the Commerce. OR would open on July 24 and continue following two measures is necessary to through August 31 or attainment of the ACTION: Final rule. facilitate Federal and Alaska State 1,200 chinook salmon quota, whichever cooperative implementation of the crab SUMMARY: NMFS issues a final rule to occurred first. This fishery was and groundfish observer programs exempt certain crab catcher vessels from scheduled to open for 2-day periods during the first year of the fee-collection the 1995 fee-collection program only. program authorized under the Research authorized pursuant to the North Pacific The best available information on July Plan: Fisheries Research Plan (Research Plan). 26 indicated that commercial catches in 1. Regulations at § 677.10(a)(3) are This exemption responds to a request the area totaled over 1,700 chinook revised to accommodate a new State of from the State of Alaska to conform the salmon during the first open period on Alaska requirement that catcher vessels Research Plan to a recent change in its July 24–25. Due to attainment of the participating in the Adak or Dutch crab observer coverage requirements for quota, NMFS determined to close the Harbor king crab fisheries carry an catcher vessels participating in the fishery for the remainder of the season observer; and Dutch Harbor and Adak area king crab and, thus, not reopen the fishery on July 2. Regulations at § 677.6(b)(1)(iii)(A) fisheries, and will avoid a ‘‘double 28, the next scheduled opening. are revised to extend current exemption payment’’ by the affected vessels of both The Regional Director consulted with provisions from the 1995 fee to crab Research Plan fees and costs of the State representatives of the Pacific Fishery catcher vessels participating in the Adak required observer coverage. This final Management Council and the Oregon and Dutch Harbor king crab fisheries. rule is consistent with the intent of the Department of Fish and Wildlife Further explanation of, and reasons final rule implementing the Research regarding this closure. The State of for, these measures are contained in the Plan and is intended to facilitate Oregon will manage the commercial preamble to the proposed rule (60 FR Federal/State cooperative fishery in State waters adjacent to this 34228, June 30, 1995). area of the exclusive economic zone in implementation of the crab and accordance with this Federal action. In groundfish observer programs during Classification accordance with the inseason notice the first year of the fee-collection The Assistant General Counsel for procedures of 50 CFR 661.23, actual program authorized under the Research Legislation and Regulation of the notice to fishermen of this action was Plan. Department of Commerce certified to given prior to 0001 hours local time, EFFECTIVE DATE: September 1, 1995. the Chief Counsel for Advocacy of the July 28, 1995, the next scheduled ADDRESSES: Copies of the Research Plan Small Business Administration that this opening, by telephone hotline number and the Environmental Assessment/ action would not have a significant (206) 526–6667 and (800) 662–9825 and Regulatory Impact Review prepared for economic impact on a substantial by U.S. Coast Guard Notice to Mariners the Research Plan may be obtained from number of small entities. The reasons Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42471 were published in the Federal Register PART 677ÐNORTH PACIFIC the standard exvessel price established on June 30, 1995 (60 FR 34228). As a FISHERIES RESEARCH PLAN pursuant to § 677.11 for the calendar result, a regulatory flexibility analysis year, multiplied by one-half the fee was not prepared. 1. The authority citation for part 677 percentage established pursuant to continues to read as follows: This action relieves a restriction on § 677.11 for the calendar year; plus crab vessels participating in the Adak Authority: 16 U.S.C. 1801 et seq. * * * * * and Dutch Harbor crab fisheries, which 2. In § 677.6, paragraph (b)(1)(iii)(A) is 3. In § 677.10, paragraph (a)(3) is open September 1, 1995, and responds revised to read as follows: revised to read as follows: to a request from the State of Alaska. § 677.10 General requirements. Because the rule relieves a restriction, § 677.6 Research Plan fee. under U.S.C. 553(d)(1), this final rule is * * * * * (a) * * * made effective September 1, 1995. (b) * * * (3) Requirements for vessel operators of Bering Sea and Aleutian Islands area This final rule has been determined to (1) * * * king and Tanner crab. An operator of a be not significant for purposes of E.O. (iii) * * * vessel that harvests or processes king or 12866. (A) The round weight or round-weight equivalent of retained catch of red king Tanner crab must have one or more List of Subjects in 50 CFR Part 677 crab or brown king crab harvested from State of Alaska-certified observers on ADF&G’s statistical area R (Adak), board the vessel whenever king or Fisheries, Reporting and Tanner crab are received, processed, or recordkeeping requirements. defined at 5 AAC 34.700, brown king crab harvested from ADF&G’s statistical onboard the vessel in the Bering Sea and Dated: August 9, 1995. area O (Dutch Harbor), defined at 5 AAC Aleutian Islands area if the operator is Gary Matlock, 34.600, Chionoecetes tanneri Tanner required to do so by Alaska State Program Management Officer, National crab, C. angulatus Tanner crab, and regulations at 5 AAC 34.035, 34.082, Marine Fisheries Service. Lithodes cousei king crab determined by 35.082, or 39.645. For the reasons set out in the the best available information received * * * * * preamble, 50 CFR part 677 is amended by the Regional Director since the last [FR Doc. 95–20257 Filed 8–15–95; 8:45 am] as follows: bimonthly billing period, multiplied by BILLING CODE 3510±22±F 42472 Proposed Rules Federal Register Vol. 60, No. 158 Wednesday, August 16, 1995 This section of the FEDERAL REGISTER DATES: Consideration will be given only Animal and Plant Health Inspection contains notices to the public of the proposed to comments received on or before Service (APHIS) provides phytosanitary issuance of rules and regulations. The September 15, 1995. certification of plants and plant purpose of these notices is to give interested ADDRESSES: Please send an original and products other than manufactured or persons an opportunity to participate in the processed products as a service to rule making prior to the adoption of the final three copies of your comments to rules. Docket No. 90–117–1, Animal and Plant exporters. After assessing the Health Inspection Service, Policy and phytosanitary condition of the plants or Program Development, Regulatory plant products intended for export, DEPARTMENT OF AGRICULTURE Analysis and Development, 4700 River relative to the receiving country’s Road Unit 118, Riverdale, MD 20737– regulations, an inspector issues an Animal and Plant Health Inspection 1228. Please state that your comments internationally recognized Service refer to Docket No. 90–117–1. phytosanitary certificate (PPQ Form Comments received may be inspected at 577), if warranted. 7 CFR Parts 353 and 354 USDA, room 1141, South Building, 14th Since 1975, APHIS has participated Street and Independence Avenue SW., with State governments in a Cooperative [Docket No. 90±117±1] Washington, DC, between 8 a.m. and Phytosanitary Export Certification 4:30 p.m., Monday through Friday, Program (the program), which allows RIN 0579±AA54 except holidays. Persons wishing to certain State officials, as well as APHIS inspect comments are requested to call officials, to issue phytosanitary Export Certificates ahead on (202) 690–2817 to facilitate certificates. Because the number of entry into the comment reading room. Federal inspectors is limited, the use of AGENCY: Animal and Plant Health FOR FURTHER INFORMATION CONTACT: Mr. State inspectors is a considerable Inspection Service, USDA. Leonard M. Crawford, Senior service to exporters of plants and plant ACTION: Proposed rule. Operations Officer, Animal and Plant products, in terms of both time and Health Inspection Service, Plant convenience. SUMMARY: We are proposing to revise Protection and Quarantine, Port To ensure that all inspectors meet completely the ‘‘Phytosanitary Export Operations, 4700 River Road Unit 139, certain minimum qualifications, our Certification’’ regulations, which Riverdale, Maryland 20737–1228; (301) regulations contain requirements that concern inspection and phytosanitary 734–8537. must be met by State plant regulatory certification of plants and plant officials before they can be designated SUPPLEMENTARY INFORMATION: products offered for export. by the Secretary of Agriculture to issue We propose to: Revise the Background phytosanitary certificates under the requirements for qualifying as an The Phytosanitary Export program. Currently, the regulations at inspector; allow persons other than Certification regulations, contained in 7 § 353.1(b)(4) require that a State plant inspectors, to be known as ‘‘agents,’’ to CFR part 353 (referred to below as the regulatory official, to be eligible for perform phytosanitary field inspections; regulations), set forth procedures for designation as an inspector, must have provide for use of a form specifically for obtaining phytosanitary certificates for a bachelor’s degree in the biological certification of processed plant products domestic plants and plant products sciences, a minimum of 2 years’ offered for export; provide for offered for export. We are proposing to experience in State plant regulatory phytosanitary certification of plants and amend these regulations to: (1) Revise activities, and a minimum of 2 years’ plant products that are offered for the requirements for qualifying as an experience in recognizing and reexport from the United States after inspector; (2) allow persons other than identifying domestic plant pests known having been legally imported into the inspectors to perform phytosanitary to occur within the cooperating State. United States; provide for industry- field inspections; (3) provide for use of Six years’ experience in State plant issued certification of certain plant a form specifically for certification of regulatory activities may be substituted products under terms of an agreement processed plant products offered for for the degree requirement. between the industry and the Animal export; (4) provide for phytosanitary The National Plant Board, an and Plant Health Inspection Service; certification of plants and plant organization made up of State plant and specify that we will issue only one products that are offered for reexport regulatory officials, suggested that certificate for any export consignment. from the United States after having been APHIS requirements for a State official These actions would facilitate the legally imported into the United States; to be designated as an inspector are too export of American agricultural (5) provide for industry-issued stringent. A joint Federal-State products by ensuring that a sufficient certification of certain plant products committee was formed to study the number of qualified individuals are under terms of an agreement between issue. The committee agreed that the available to carry out Federal the industry and the Animal and Plant above requirements may be certification activities and by providing Health Inspection Service; and (6) unnecessarily stringent, and that a for additional types of certifications. specify that we will issue only one modification of these requirements We also propose to make minor certificate for any export consignment. would assist State plant regulatory editorial changes in our user fee agencies in recruiting adequate numbers regulations for consistency with the Inspectors of individuals for the position of proposed changes to the ‘‘Phytosanitary Under section 102(e) of the Organic inspector while still ensuring that the Export Certification’’ regulations. Act of 1944 (7 U.S.C. 147a(e)), the individuals selected for the position had Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42473 the necessary skills. It was also authorized to conduct field inspections authorized to conduct the actual field suggested that the regulations should be of seed crops inspections of seed crops necessary for amended to allow county officials to be The regulations at current § 353.7(d) determining phytosanitary condition eligible for designation as an inspector allow inspectors to issue phytosanitary prior to the issuance of a phytosanitary as well. Leaving the requirements certificates based on inspections made certificate for the crops. unchanged could eventually result in a by cooperating Federal and State The regulations at current § 353.1(b) shortage of qualified inspectors, which agencies. We are proposing to authorize would be amended by adding a would in turn impair APHIS’s ability to certain other persons to perform definition for ‘‘agent,’’ as follows: ‘‘An provide competent, expeditious phytosanitary inspections of seed crops individual who meets the eligibility phytosanitary certification of American in the field that will serve as the basis requirements set forth in § 353.6, and agricultural products. for an inspector to issue a phytosanitary who is designated by the Animal and We are therefore proposing to revise certificate. Plant Health Inspection Service to the definition of ‘‘Inspector’’ at current Increasingly stringent foreign conduct phytosanitary field inspections § 353.1(b)(4) to allow a county plant regulations and shrinking Federal and of seed crops to serve as a basis for the regulatory official to be eligible for State budgets have placed increasing issuance of phytosanitary certificates.’’ designation as an inspector under the demands on a dwindling pool of Current § 353.6 would be amended by program. We are proposing to amend available inspection personnel, thus adding eligibility requirements for current § 353.6 by adding eligibility making it very difficult to perform agents. To be eligible for the designation requirements. We would require that necessary phytosanitary field as agents, individuals must have the State or county plant regulatory inspections. APHIS and its cooperating ability to recognize, in the crops they officials, to be eligible for designation as State plant regulatory agencies have are responsible for inspecting, plant an inspector, must have a bachelor’s been searching for alternative ways of pests, including symptoms and/or signs degree in the biological sciences, and a satisfying the demand for phytosanitary of disease-causing organisms of concern minimum of 1 year’s experience in State field inspections to meet the to importing countries. An individual, or county plant regulatory activities, or requirements of foreign importers. It in order to be designated as an agent, a combination of higher education in was suggested by the National Plant also would be required to have a the biological sciences and experience Board that it would be extremely bachelor’s degree in the biological in State plant regulatory activities, as helpful, subject of course to appropriate sciences, and a minimum of 1 year’s follows: conditions, to be able to draw on the experience in identifying plant pests services of other qualified individuals, 0 years education and 5 years endemic to crops of commercial such as members of an official seed importance within the cooperating experience; certifying agency like the Association of 1 year education and 4 years experience; State, or a combination of higher Official Seed Certifying Agencies education in the biological sciences and 2 years education and 3 years (AOSCA), to perform the field experience; experience in identifying such plant inspections of seed crops as a pests, as follows: 3 years education and 2 years component of the phytosanitary experience; or certification process in the United 0 years education and 5 years 4 years education and 1 year experience. States. The authorization of such experience; The years of education and experience qualified individuals to conduct 1 year education and 4 years experience; do not have to be acquired phytosanitary field inspections of seed 2 years education and 3 years consecutively. In addition, candidates crops would help ensure that sufficient experience; would be required to successfully personnel are available to conduct these 3 years education and 2 years complete the APHIS training course on inspections. experience; or phytosanitary certification prior to their We are, therefore, proposing to 4 years education and 1 year experience. designation as inspectors. Successful authorize individuals who possess The years of education and experience completion would be indicated by specified qualifications to conduct field do not have to be acquired receipt of a passing grade. The training inspections of seed crops that are consecutively. In addition, agents would course would have the same content as required for phytosanitary certification. be required to receive annual training the course required of new APHIS Plant These persons would be designated by provided by the State plant regulatory Protection and Quarantine officers. APHIS as authorized ‘‘agents.’’ Agents agency. This required training would Based on our experience with would conduct phytosanitary field include instruction in inspection administering the program, we believe inspections of seed crops in cooperation procedures, identification of plant pests that the above combination of education with and on behalf of those State plant of quarantine importance to importing and experience would be adequate to regulatory agencies which elect to use countries, methods of collection and ensure that inspectors are fully qualified agents and which maintain an submission of specimens (organisms to ascertain the phytosanitary condition appropriate Memorandum of and/or plants or plant parts) for of plants or plant products they certify Understanding (MOU) with APHIS. The identification, and preparation and for export. No inspectors would inspect MOU would provide that the State plant submission of inspection report forms any plants or plant products in which regulatory agencies would use agents to approved by the State plant regulatory they or a member of their family are conduct inspections in accordance with agency. Agents would have to have directly or indirectly financially the regulations. Field inspections access to Federal or State laboratories interested. In this instance, a family conducted by agents would be for the positive identification of plant consists of the spouse of the inspector monitored by State plant regulatory pests detected. or agent, and their parents, their and/or APHIS personnel through on-site Based on our experience with children, and first cousins. observation of the agents’ activities and administering the Cooperative We are also proposing to revise the review of agents’ records relating to Phytosanitary Export Certification description of the certification process these activities. Agents would not be Program, we believe that the above in current § 353.7(d) by adding a authorized to issue phytosanitary combination of education and reference to county agencies. Persons certificates, but would only be experience would be adequate to ensure 42474 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules that individuals meeting the described issued by an inspector. The original APHIS regulations, would result in qualifications would be fully qualified certificate would, immediately upon its immediate withdrawal of the agreement. to provide phytosanitary field issuance, be delivered or mailed to the Withdrawal of an agreement could be inspection of seed crops. No agents applicant or a person designated by the appealed within 10 days following would inspect any plants or plant applicant. One copy of each certificate withdrawal, and a hearing would be products in which they or a member of would be filed in the office of held to resolve any conflicts as to any their family are directly or indirectly certification. material fact. To encourage compliance financially interested. The reexport certificate would not be and aid enforcement, no new agreement issued for plants and plant products would be signed with a party who has Export Certificate for Processed Plant which transit the United States under had an agreement withdrawn for 12 Products Customs bond. These commodities do months after the withdrawal. Foreign government agencies and not make Customs entry into U.S. The industry-issued certificate would foreign buyers frequently require a commerce, which means that our affirm that a plant product has been ‘‘certificate’’ for processed or inspectors do not have the normal handled, processed, or inspected in a manufactured plant products, such as opportunities to inspect the articles, manner required by a foreign wooden furniture parts, plywood, or check their paperwork, and determine government. APHIS and State regulatory veneer, stating they are free from whether they meet the phytosanitary officials would monitor the industry to injurious plant pests before permitting requirements of the final destination ensure compliance with the terms of the entry into their country. We are country. It would take a major and agreement. Monitoring would be proposing to provide for use of a uneconomical reorganization of our port accomplished through on-site certificate (PPQ Form 578, Export of arrival activities to give our observation of pertinent industry Certificate for Processed Plant Products) inspectors the necessary access to activities and review of industry records specifically for the certification of articles and paperwork associated with relating to these activities. processed plant products offered for products which transit the United States Application for Certification export. Processed products are not under Customs bond. Therefore, our eligible for a phytosanitary certificate. policy is that we will not issue An exporter may sometimes file This export certificate would be issued phytosanitary certificates for separate applications for different by an inspector, and would affirm that, reexportation for plants and plant portions of the same shipment, or based on inspection of submitted products which transit the United States consignment. An inspector then ends up samples and/or by virtue of the under Customs bond. conducting multiple inspections of the processing received, the processed plant same consignment and issuing what products described on the form are Industry-Issued Certificate amounts to duplicate certificates. To believed to be free from injurious plant There has been a demonstrated need eliminate this duplicative work and pests. The original certificate would, in the United States (e.g., with conifer make better use of available inspectors, immediately upon its issuance, be lumber exported to Europe and Chile) we propose to issue only one certificate delivered or mailed to the applicant or for segments of the agricultural and for any consignment. We propose to a person designated by the applicant. forestry industries to be able to issue amend § 353.5 to stipulate that we will One copy of each certificate would be industry certification under the aegis of not accept more than one application for filed in the office of inspection at the the Federal government, affirming that a any consignment, and that only one port of certification. (As in the current plant product meets some specific certificate will be issued for any regulations at 7 CFR Part 353, we would condition. This certification is related to consignment. We also propose to amend issue a phytosanitary certificate (PPQ plant health but is less than full the definition of consignment currently Form 577) only for unprocessed phytosanitary certification. For at § 353.1(b)(7) to indicate that a domestic plants and plant products.) example, some governments require a consignment is a shipment of plants or This new certificate for processed plant written certification stating that a wood plant products from one exporter, to one products is proposed in order to product exported from the United States consignee, in one country, on one facilitate trade. is free of bark and grub holes. means of conveyance; or any mail We propose to provide for industry- shipment to one consignee. One Phytosanitary Certificate for Reexport issued certification of certain plant consignment is entitled to only one Foreign origin plants and plant products under terms of a written certificate. products that are legally imported into agreement between the concerned the United States and subsequently agricultural or forestry company or Miscellaneous offered for reexport may require Federal association and APHIS. Each agreement We are proposing to remove all certification in order to satisfy the would specify the articles subject to the references to ‘‘Deputy Administrator,’’ phytosanitary requirements of importing agreement and the measures necessary and to replace them with references to countries. We are proposing to provide to prevent the introduction and ‘‘Administrator,’’ and to remove certain for the issuance of a phytosanitary dissemination of specified plant pests references to ‘‘Plant Protection and certificate for reexport (PPQ Form 579). into the foreign countries specified in Quarantine Programs,’’ and to replace This reexport certificate would certify the agreement. them with references to ‘‘Animal and that, based on the original foreign Industry-issued certification would be Plant Health Inspection Service.’’ We phytosanitary certificate and/or allowed only with the industry-issued are also proposing to remove the additional inspection or treatment in the agreement in place. An agreement could definition of ‘‘Plant Protection and United States, the plants and plant be discontinued at any time by request Quarantine Programs,’’ and to add products conform to the current of either party, effective 15 days after definitions of ‘‘Administrator’’ and phytosanitary regulations of the one party notifies the other in writing ‘‘Animal and Plant Health Inspection importing country and have not been that it wishes to discontinue the Service.’’ The current regulations subjected to the risk of infestation or agreement. Violation of the terms of the indicate that the Deputy Administrator, infection during storage in the United agreement, or movement of articles Plant Protection and Quarantine, States. The reexport certificate would be under the agreement in violation of APHIS, is the official responsible for the Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42475 performance of all duties arising in the User Fee Regulations single inspection for both purposes. administration of the Act. We are At the same time we are making Large commercial seed companies proposing to make the terminology changes to 7 CFR 354.3 for consistency. would be the primary beneficiaries of changes noted above to indicate that the In order to provide for county plant this proposed change because their primary authority and responsibility for regulatory officials performing crops would be inspected in a more timely manner, thus making them various decisions under these phytosanitary certification, we propose available for the marketplace sooner. regulations belong to the Administrator to remove the definition of ‘‘Designated of the agency. This proposal is not expected to State inspector’’ and to replace it with significantly increase the number of We are proposing to add definitions a definition of ‘‘Designated State or for ‘‘Family,’’ ‘‘Plant pests,’’ ‘‘Plant certificates for reexport issued by county inspector.’’ We propose to APHIS. APHIS currently issues products,’’ ‘‘Plants and plant products,’’ amend the definitions of ‘‘Phytosanitary and ‘‘Representative of the concerned approximately 9000 certificates for certificate,’’ ‘‘Phytosanitary certificate reexport each year. We estimate that agricultural or forestry industry’’ for for reexport,’’ and ‘‘Processed product clarity. approximately 10 percent (900) of these certificate’’ for consistency with certificates are issued to small We are proposing to add a description definitions for these certificates in of the purpose of the export certification businesses, based on the size and value proposed § 353.1. Finally, we also of the shipments. program in § 353.2 to make it clear that propose to amend § 354.3 to clarify that, APHIS does not require export We anticipate that allowing industry- just as no APHIS user fee is charged for issued certificates, and inspector-issued certificates, but issues them as a service certificates issued by a designated State to exporters. export certificates specifically for inspector, no APHIS user fee will be processed plant products (PPQ Form APHIS no longer has offices as listed charged for certificates issued by a in current § 353.3(a). Therefore, we are 578) would benefit exporters, including designated county inspector, although small businesses, by facilitating proposing to remove the list of area State or county fees may be assessed. offices where service is offered at exportation of plants and plant § 353.3(a) and to replace it with the four Review of Existing Regulations products. Most of the articles eligible for such certificates are exported by larger APHIS regional offices which reflect the This proposed rule is part of the businesses, and we estimate that each actual APHIS regional structure. scheduled review of Part 353— year small businesses will probably be Information concerning the location of Phytosanitary Export Certification, to issued fewer than 1000 industry-issued inspectors who may issue certificates for meet regulatory review requirements. certificates and inspector-issued export plants and plant products may be Executive Order 12866 and certificates specifically for processed obtained from the regional offices. Departmental Regulation 1512–1 require Sometimes persons holding plant products. that agencies initiate reviews of Exporters would be charged a user fee certificates request APHIS to issue new currently effective rules to reduce as stated in § 354.3 upon the issuance of certificates for a consignment, e.g., if the regulatory burdens and minimize commercial, private, and re-issued original certificates are lost. Section impacts on small entities. (voided and returned certificates) export 353.7(e) of the current regulations certificates, respectively. The allows inspectors to issue new Executive Order 12866 and Regulatory justification for and the analysis of the certificates on the basis of inspections Flexibility Act user fees can be found in the regulatory for previous certifications when the This proposed rule has been reviewed impact analysis accompanying the final previously issued certificates can be under Executive Order 12866. The rule published on January 9, 1992 (57 canceled before they have been accepted proposed rule has been determined to FR 755–773, Docket No. 91–135). by the phytopathological authorities of be not significant for purposes of Under these circumstances, the the country of destination involved. We Executive Order 12866 and, therefore, Administrator of the Animal and Plant are retaining this provision for has not been reviewed by the Office of Health Inspection Service has phytosanitary certificates for domestic Management and Budget. determined that this action would not plants or unprocessed plant products, Our proposed changes to the have a significant economic impact on because this provision allows inspectors requirements for qualifying as an a substantial number of small entities. to respond to changing conditions in a inspector, and our proposal to allow flexible and economical manner with additional individuals to perform Executive Order 12372 the least disruption to commerce. We phytosanitary field inspections, would This program/activity is listed in the propose to add a similar provision for have no measurable financial impact on Catalog of Federal Domestic Assistance export certificates for processed plant those entities involved in exporting under No. 10.025 and is subject to products, without including the caveat plants and plant products. The changes Executive Order 12372, which requires that the previously issued certificates would help ensure that sufficient intergovernmental consultation with must be canceled before they have been qualified personnel are available to State and local officials. (See 7 CFR part accepted by the phytopathological perform inspections. 3015, subpart V.) authorities of the country of destination. In addition, our proposal to allow use Export certificates for processed plant of additional individuals to perform Executive Order 12778 products are not phytosanitary phytosanitary field inspections could This proposed rule has been reviewed certificates and are not intended for result in a cost savings to industry under Executive Order 12778, Civil presentation to the phytopathological through reduced duplication of effort in Justice Reform. If this proposed rule is authorities of foreign countries, so this field inspection activities. Currently, adopted: (1) All State and local laws and caveat would be inappropriate for seed certifying agencies inspect crops regulations that are inconsistent with export certificates for processed plant for genetic purity. Inspectors make a this rule will be preempted; (2) no products. separate inspection of the crops in the retroactive effect will be given to this We are also making nonsubstantive field to determine their phytosanitary rule; and (3) administrative proceedings editorial changes in the regulations for condition under part 353. Under our will not be required before parties may clarity. proposal, ‘‘agents’’ could perform a file suit in court challenging this rule. 42476 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules Paperwork Reduction Act one consignee, in one country, on one damage in any plants or parts thereof, or In accordance with the Paperwork means of conveyance; or any mail other products of plants. Reduction Act of 1980 (44 U.S.C. 3501 shipment to one consignee. Plant products. Products derived from et seq.), the information collection or Export certificate for processed plant nursery stock, other plants, plant parts, recordkeeping requirements included in products. A certificate (PPQ Form 578) roots, bulbs, seeds, fruits, nuts, and this proposed rule will be submitted for issued by an inspector, describing the vegetables, including manufactured or plant health condition of processed or approval to the Office of Management processed products. manufactured plant products based on and Budget. Please send written Plants and plant products. Nursery inspection of submitted samples and/or comments to the Office of Information stock, other plants, plant parts, roots, by virtue of the processing received. and Regulatory Affairs, OMB, Attention: bulbs, seeds, fruits, nuts, vegetables and Family. An inspector or agent and his other plant products, including Desk Officer for APHIS, Washington, DC or her spouse, their parents, children, 20503. Please send a copy of your manufactured or processed products. and first cousins. State. Any of the States of the United comments to: (1) Chief, Regulatory Industry-issued certificate. A States, the District of Columbia, Analysis and Development, PPD, certificate issued by a representative of American Samoa, Guam, the Northern APHIS, USDA, 4700 River Road Unit the concerned agricultural or forestry Mariana Islands, Puerto Rico, or the 118, Riverdale, MD 20737–1228, and (2) industry under the terms of a written Clearance Officer, OIRM, USDA, room agreement with the Animal and Plant Virgin Islands of the United States. 404–W, 14th Street and Independence Health Inspection Service, giving The Act. The act of Congress entitled Avenue SW., Washington, DC 20250. assurance that a plant product has been ‘‘Department of Agriculture Organic Act of 1944,’’ approved September 21, 1944 List of Subjects handled, processed, or inspected in a manner required by a foreign (58 Stat. 735), section 102. 7 CFR Part 353 government. § 353.2 Purpose and administration. Exports, Plant diseases and pests, Inspector. An employee of the Animal The export certification program does Reporting and recordkeeping and Plant Health Inspection Service, or not require certification of any exports, requirements. a State or county plant regulatory official designated by the Secretary of but does provide certification of plants 7 CFR Part 354 Agriculture to inspect and certify to and plant products as a service to Exports, Government employees, shippers and other interested parties, as exporters. After assessing the Imports, Plant diseases and pests, to the phytosanitary condition of plant phytosanitary condition of the plants or Quarantine, Reporting and products inspected under the Act. plant products intended for export, recordkeeping requirements, Travel and Office of inspection. The office of an relative to the receiving country’s transportation expenses. inspector of plants and plant products regulations, an inspector issues an Accordingly, 7 CFR parts 353 and 354 covered by this part. internationally recognized would be amended as follows: Phytosanitary certificate. A certificate phytosanitary certificate (PPQ Form 1. Part 353 would be revised to read (PPQ Form 577) issued by an inspector, 577), a phytosanitary certificate for as follows: giving the phytosanitary condition of reexport (PPQ Form 579), or an export domestic plants or unprocessed or certificate for processed plant products PART 353ÐEXPORT CERTIFICATION unmanufactured plant products based (PPQ Form 578), if warranted. APHIS on inspection of the entire lot. also enters into written agreements with Sec. Phytosanitary certificate for reexport. industry to allow the issuance of 353.1 Definitions. industry-issued certificates giving 353.2 Purpose and administration. A certificate (PPQ Form 579) issued by 353.3 Where service is offered. an inspector, giving the phytosanitary assurance that a plant product has been 353.4 Products covered. condition of foreign plants and plant handled, processed, or inspected in a 353.5 Application for certification. products legally imported into the manner required by a foreign 353.6 Inspection. United States and subsequently offered government. 353.7 Certificates. for reexport. The certificate certifies § 353.3 Where service is offered. Authority: 7 U.S.C. 147a; 21 U.S.C. 136 that, based on the original foreign and 136a; 44 U.S.C. 35; 7 CFR 2.17, 2.51, and phytosanitary certificate and/or (a) Information concerning the 371.2(c). additional inspection or treatment in the location of inspectors who may issue § 353.1 Definitions. United States, the plants and plant certificates for plants and plant products may be obtained by contacting one of Administrator. The Administrator, products are considered to conform to the following regional offices: Animal and Plant Health Inspection the current phytosanitary regulations of the receiving country and have not been Service, or any person authorized to act Region States for the Administrator. subjected to the risk of infestation or Agent. An individual who meets the infection during storage in the United Northeastern: eligibility requirements set forth in States. Plants and plant products which Blason II, 1st Floor, CT, ME, MA, NH, RI, § 353.6, and who is designated by the transit the United States under Customs 505 South Lenola VT, NY, NJ, PA, Animal and Plant Health Inspection bond are not eligible to receive the Road, Moorestown, MD, DE, VA, WI, Service to conduct phytosanitary field phytosanitary certificate for reexport. NJ 08057. MN, IL, IN, OH, MI, inspections of seed crops to serve as a Plant pests. Any living stage of any WV. basis for the issuance of phytosanitary insects, mites, nematodes, slugs, snails, Southeastern: protozoa, or other invertebrate animals, 3505 25th Avenue, FL, AL, GA, KY, MS, certificates. Building 1, North, TN, NC, SC, PR, Animal and Plant Health Inspection bacteria, fungi, other parasitic plants or Gulfport, MS 39501. US VI. Service (APHIS). The Animal and Plant reproductive parts thereof, viruses, or Central: Health Inspection Service of the U.S. any organisms similar to or allied with 3505 Boca Chica TX, OK, NE, AR, KS, Department of Agriculture. any of the foregoing, or any infectious Blvd., Suite 360, LA, IA, MO, ND, Consignment. One shipment of plants substances, which can directly or Brownsville, TX SD. or plant products, from one exporter, to indirectly injure or cause disease or 78521±4065. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42477 Region States (6) Plants of the species Dionaea 1 year education and 4 years experience; muscipula (Venus flytrap): 2 years education and 3 years Western: Wilmington, NC experience; 9580 Micron Avenue, HI, CA, CO, ID, MT, 3 years education and 2 years Suite I, Sac- UT, WY, WA, OR, § 353.4 Products covered. experience; or ramento, CA 95827. NV, NM, AZ, AK. Products and plant products when 4 years education and 1 year experience. offered for export or re-export. (b) Inspectors who may issue The years of education and experience do not have to be acquired phytosanitary certificates for terrestrial § 353.5 Application for certification. plants listed in 50 CFR part 17 or 23 are consecutively. (a) To request the services of an (3) An agent must receive annual available only at a port designated for inspector, a written application (PPQ training provided by the State plant export in 50 CFR part 24, or at a Form 572) shall be made as far in regulatory agency. The required training nondesignated port if allowed by the advance as possible, and shall be filed must include instruction in inspection U.S. Department of the Interior pursuant in the office of inspection at the port of procedures, identification of plant pests to section 9 of the Endangered Species certification. of quarantine importance to importing Act of 1973, as amended (16 U.S.C. (b) Each application shall be deemed countries, methods of collection and 1538). The following locations are filed when delivered to the proper office submission of specimens (organisms designated in 50 CFR part 24 as ports for of inspection at the port of certification. and/or plants or plant parts) for export of terrestrial plants listed in 50 When an application is filed, a record identification, and preparation and CFR part 17 or 23: showing the date and time of filing shall submission of inspection report forms (1) Any terrestrial plant listed in 50 be made in such office. approved by the State plant regulatory CFR part 17 or 23: (c) Only one application for any agency. consignment shall be accepted, and only Nogales, AZ (4) An agent must have access to one certificate for any consignment shall Los Angeles, CA Federal or State laboratories for the San Diego, CA be issued. San Francisco, CA positive identification of plants pests (Approved by the Office of Management and detected. Miami, FL Budget under control number 0579–0052) Orlando, FL (5) No agents shall inspect any plants Honolulu, HI § 353.6 Inspection. or plant products in which they or a New Orleans, LA Inspections shall be performed by member of their family are directly or Hoboken, NJ (Port of New York) agents or inspectors. indirectly financially interested. Jamaica, NY (a) Agent. (1) Agents may conduct (b) Inspector. (1) An employee of the San Juan, PR Animal and Plant Health Inspection Brownsville, TX phytosanitary field inspections of seed crops in cooperation with and on behalf Service, or a State or county regulatory El Paso, TX official designated by the Secretary of Houston, TX of those State plant regulatory agencies Laredo, TX electing to use agents and maintaining Agriculture to inspect and certify to Seattle, WA a Memorandum of Understanding with shippers and other interested parties, as to the phytosanitary condition of plants (2) Any plant of the family the Animal and Plant Health Inspection Service in accordance with the and plant products inspected under the Orchidaceae (orchids) listed in 50 CFR Act. part 17 or 23: regulations. The Memorandum of Understanding must state that agents (2) To be eligible for designation as an Hilo, HI shall be used in accordance with the inspector, a State or county plant Chicago, IL regulations in this part. Agents are not regulatory official must: (3) Roots of American ginseng (Panax authorized to issue Federal (i) Have a bachelor’s degree in the quinquefolius) listed in 50 CFR 23.23: phytosanitary certificates, but are only biological sciences, and a minimum of 1 year’s experience in State or county Atlanta, GA authorized to conduct the field Chicago, IL inspections of seed crops required as a plant regulatory activities, or a Baltimore, MD basis for determining phytosanitary combination of higher education in the St. Louis, MO condition prior to the issuance of a biological sciences and experience in Milwaukee, WI phytosanitary certificate for the crops. State plant regulatory activities, as follows: (4) Any plant listed in 50 CFR 17.12 (2) To be eligible for designation as an or 23.23 and offered for exportation to agent, an individual must: 0 years education and 5 years Canada: (i) Have the ability to recognize, in the experience; crops he or she is responsible for 1 year education and 4 years experience; Detroit, MI inspecting, plant pests, including 2 years education and 3 years Buffalo, NY Rouses Point, NY symptoms and/or signs of disease- experience; Blaine, WA causing organisms, of concern to 3 years education and 2 years importing countries. experience; or (5) Any logs and lumber from trees (ii) Have a bachelor’s degree in the 4 years education and 1 year experience. listed in 50 CFR 17.12 or 23.23: biological sciences, and a minimum of The years of education and experience Mobile, AL 1 year’s experience in identifying plant do not have to be acquired Savannah, GA pests endemic to crops of commercial consecutively. Baltimore, MD importance within the cooperating (ii) Successfully complete, as Gulfport, MS State, or a combination of higher indicated by receipt of a passing grade, Wilmington and Morehead City, NC education in the biological sciences and Portland, OR the Animal and Plant Health Inspection Philadelphia, PA experience in identifying such plant Service training course on phytosanitary Charleston, SC pests, as follows: certification. Norfolk, VA 0 years education and 5 years (3) No inspectors shall inspect any Vancouver, WA experience; plants or plant products in which they 42478 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules or a member of their family are directly processing used for previous subsequent sign-offs and product or indirectly financially interested. certifications. labeling as identified by Plant (c) Applicant responsibility. (1) When (c) Phytosanitary certificate for Protection and Quarantine (PPQ), the services of an agent or an inspector reexport (PPQ Form 579). (1) For each APHIS, based on the import are requested, the applicant shall make consignment of foreign origin plants or requirements of the foreign country. the plant or plant product accessible for unprocessed plant products for which (2) Termination of agreement. An inspection and identification and so certification is requested, the inspector agreement may be terminated by any place the plant or plant product to shall sign and issue a certificate based signatory to the agreement by giving permit physical inspection of the lot for on the original foreign phytosanitary written notice of termination to the plant pests. certificate and/or additional inspection other party. The effective date of the (2) The applicant must furnish all or treatment in the United States after termination will be 15 days after the labor involved in the inspection, determining that the consignment date of actual receipt of the written including the moving, opening, and conforms to the current phytosanitary notice. Any agreement may be closing of containers. regulations of the receiving country and immediately withdrawn by the (3) Certificates may be refused for has not been subjected to the risk of Administrator if he or she determines failure to comply with any of the infestation or infection during storage in that articles covered by the agreement foregoing provisions. the United States. were moved in violation of any (2) The original certificate shall requirement of this chapter or any § 353.7 Certificates. immediately upon its issuance be provision of the agreement. If the (a) Phytosanitary certificate (PPQ delivered or mailed to the applicant or withdrawal is oral, the decision to Form 577). (1) For each consignment of a person designated by the applicant. withdraw the agreement and the reasons domestic plants or unprocessed plant (3) One copy of each certificate shall for the withdrawal of the agreement products for which certification is be filed in the office of inspection at the shall be confirmed in writing as requested, the inspector shall sign and port of certification, and one forwarded promptly as circumstances permit. issue a separate certificate based on the to the Administrator. Withdrawal of an agreement may be findings of the inspection. (4) The Administrator may authorize appealed in writing to the Administrator (2) The original certificate shall inspectors to issue certificates on the within 10 days after receipt of the immediately upon its issuance be basis of inspections made by written notification of the withdrawal. delivered or mailed to the applicant or cooperating Federal, State, and county The appeal shall state all of the facts a person designated by the applicant. agencies. and reasons upon which the appellant (3) One copy of each certificate shall (5) Inspectors may issue new relies to show that the agreement was be filed in the office of inspection at the certificates on the basis of inspections wrongfully withdrawn. The port of certification, and one forwarded for previous certifications when the Administrator shall grant or deny the to the Administrator. previously issued certificates can be appeal, in writing, stating the reasons (4) The Administrator may authorize canceled before they have been accepted for granting or denying the appeal as inspectors to issue certificates on the by the phytopathological authorities of promptly as circumstances permit. If basis of inspections made by the country of destination involved. there is a conflict as to any material fact cooperating Federal, State, and county (d) Industry-issued certificate. A and the person from whom the agencies. certificate issued under the terms of a agreement is withdrawn requests a (5) Inspectors may issue new written agreement between the Animal hearing, a hearing shall be held to certificates on the basis of inspections and Plant Health Inspection Service and resolve the conflict. Rules of practice for previous certifications when the an agricultural or forestry company or concerning the hearing shall be adopted previously issued certificates can be association giving assurance that a plant by the Administrator. No written canceled before they have been accepted product has been handled, processed, or agreement will be signed with an by the phytopathological authorities of inspected in a manner required by a individual or a company representative the country of destination involved. foreign government. The certificate may of the concerned agricultural or forestry (b) Export certificate for processed be issued by the individual who signs company or association who has had a plant products (PPQ Form 578). (1) For the agreement or his/her delegate. written agreement withdrawn during each consignment of processed plant (1) Contents of written agreement. In the 12 months following such products for which certification is each written agreement, APHIS shall withdrawal, unless the withdrawn requested, the inspector shall sign and agree to cooperate and coordinate with agreement was reinstated upon appeal. the signatory agricultural or forestry issue a certificate based on the (Approved by the Office of Management and inspector’s findings after inspecting company or association to facilitate the Budget under control number 0579–0052) submitted samples and/or by virtue of issuance of industry-issued certificates processing received. and to monitor activities under the PART 354ÐOVERTIME SERVICES (2) The original certificate shall agreement, and the concerned RELATING TO IMPORTS AND immediately upon its issuance be agricultural or forestry company or EXPORTS; AND USER FEES delivered or mailed to the applicant or association agrees to comply with the a person designated by the applicant. requirements of the agreement. Each 2. The authority citation for part 354 (3) One copy of each certificate shall agreement shall specify the articles would continue to read as follows: be filed in the office of inspection at the subject to the agreement and any Authority: 7 U.S.C. 2260; 21 U.S.C. 136 port of certification. measures necessary to prevent the and 136a; 49 U.S.C. 1741; 7 CFR 2.17, 2.51, (4) The Administrator may authorize introduction and dissemination into and 371.2(c). inspectors to issue certificates on the specified foreign countries of specified 3. In § 354.3, paragraph (a), the basis of inspections made by injurious plant pests. These measures definition for Designated State inspector cooperating Federal, State, and county could include such treatments as would be removed and a new definition agencies. refrigeration, heat treatment, kiln for Designated State or county inspector (5) Inspectors may issue new drying, etc., and must include all would be added in alphabetical order, certificates on the basis of inspections/ necessary preshipment inspections and the definitions for Phytosanitary Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42479 certificate and Phytosanitary certificate Done in Washington, DC, this 9th day of FOR FURTHER INFORMATION CONTACT: for reexport would be revised, the August 1995. Mr. Steve Potter, Aerospace Engineer, definition for Processed product Lonnie J. King, Wichita Aircraft Certification Office, certificate would be removed, and a new Administrator, Animal and Plant Health FAA, 1801 Airport Road, Mid-Continent definition for Export certificate for Inspection Service. Airport, Wichita, Kansas 67209; processed plant products would be [FR Doc. 95–20227 Filed 8–15–95; 8:45 am] telephone (316) 946–4124; facsimile added in alphabetical order, and BILLING CODE 3410±34±P (316) 946–4407. paragraph (g)(2) would be revised to SUPPLEMENTARY INFORMATION: read as follows: Comments Invited DEPARTMENT OF TRANSPORTATION § 354.3 User fees for certain international Interested persons are invited to services. Federal Aviation Administration participate in the making of the (a) * * * proposed rule by submitting such 14 CFR Part 39 written data, views, or arguments as * * * * * [Docket No. 95±CE±32±AD] they may desire. Communications Designated State or county inspector. should identify the Rules Docket A State or county plant regulatory Airworthiness Directives; Beech number and be submitted in triplicate to official designated by the Secretary of Aircraft Corporation 90, 99, 100, and the address specified above. All Agriculture to inspect and certify to 200 Series Airplanes communications received on or before shippers and other interested parties, as the closing date for comments, specified to the phytosanitary condition of plant AGENCY: Federal Aviation above, will be considered before taking products inspected under the Administration, DOT. action on the proposed rule. The Department of Agriculture Organic Act ACTION: Notice of proposed rulemaking proposals contained in this notice may be changed in light of the comments of 1944. (NPRM). received. Export certificate for processed plant SUMMARY: This document proposes to Comments are specifically invited on products. A certificate (PPQ Form 578) adopt a new airworthiness directive the overall regulatory, economic, issued by an inspector, describing the (AD) that would apply to certain Beech environmental, and energy aspects of plant health condition of processed or Aircraft Corporation (Beech) 90, 99, 100, the proposed rule. All comments manufactured plant products based on and 200 series airplanes. The proposed submitted will be available, both before inspection of submitted samples and/or action would require inspecting the and after the closing date for comments, by virtue of the processing received. main landing gear drag leg lock link to in the Rules Docket for examination by interested persons. A report that * * * * * ensure that the hole for the roll pin is drilled completely through both walls of summarizes each FAA-public contact Phytosanitary certificate. A certificate the main landing gear drag leg lock link concerned with the substance of this (PPQ Form 577) issued by an inspector, and, if not drilled completely through proposal will be filed in the Rules giving the phytosanitary condition of both link walls, replacing any main Docket. domestic plants or unprocessed or landing gear drag leg lock link. An Commenters wishing the FAA to unmanufactured plant products based incident where the left main landing acknowledge receipt of their comments on inspection of the entire lot. gear collapsed on one of the affected submitted in response to this notice Phytosanitary certificate for reexport. airplanes prompted the proposed action. must submit a self-addressed, stamped A certificate (PPQ Form 579) issued by Investigation revealed that the roll pin postcard on which the following statement is made: ‘‘Comments to an inspector, giving the phytosanitary hole was not completely drilled through Docket No. 95–CE–32–AD.’’ The condition of foreign plants and plant both walls of the drag leg lock link. The postcard will be date stamped and products legally imported into the actions specified by the proposed AD are intended to prevent main landing returned to the commenter. United States and subsequently offered gear collapse caused by drag leg lock for reexport. The certificate certifies Availability of NPRMs link failure, which, if not detected and that, based on the original foreign corrected, could result in loss of control Any person may obtain a copy of this phytosanitary certificate and/or of the airplane. NPRM by submitting a request to the additional inspection or treatment in the FAA, Central Region, Office of the DATES: Comments must be received on United States, the plants and plant Assistant Chief Counsel, Attention: or before October 20, 1995. products are considered to conform to Rules Docket No. 95–CE–32–AD, Room the current phytosanitary regulations of ADDRESSES: Submit comments in 1558, 601 E. 12th Street, Kansas City, the receiving country and have not been triplicate to the Federal Aviation Missouri 64106. subjected to the risk of infestation or Administration (FAA), Central Region, Office of the Assistant Chief Counsel, Discussion infection during storage in the United Attention: Rules Docket No. 95–CE–32– States. Plants and plant products which The FAA received a report of an AD, Room 1558, 601 E. 12th Street, incident where the left main landing transit the United States under Customs Kansas City, Missouri 64106. Comments gear collapsed on a Beech Model 99 bond are not eligible to receive the may be inspected at this location airplane. Investigation of this incident phytosanitary certificate for reexport. between 8 a.m. and 4 p.m., Monday revealed that the hole for the roll pin * * * * * through Friday, holidays excepted. was not completely drilled through both (g) * * * Service information that applies to the walls of the drag leg lock link. proposed AD may be obtained from the Further investigation shows that spare (2) There is no APHIS user fee for a Beech Aircraft Corporation, P.O. Box 85, drag leg lock links were delivered to the certificate issued by a designated State Wichita, Kansas 67201–0085. This field with the roll pin hole only drilled or county inspector. information also may be examined at halfway through the link. When drilled * * * * * the Rules Docket at the address above. only halfway through the link, the roll 42480 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules pin will not hold the pivot pin secure that a majority of the affected airplanes Models Serial Nos. in the drag leg lock link. In this will not have incorrectly drilled links, scenario, the drag leg lock link does not thereby further reducing the cost impact 100 and A100 ...... B±1 through B±94 hold the landing gear in the down of the proposed AD upon the public. and B±100 through position, which could cause main The regulations proposed herein B±247 landing gear collapse. These drag leg B100 ...... BE±1 through BE± would not have substantial direct effects 137 lock links may be installed on certain on the States, on the relationship 200 and B200 ...... BB±2, BB±6 through Beech 90, 99, 100, and 200 series between the national government and BB±1157, BB±1159 airplanes. the States, or on the distribution of through BB±1166, Beech has issued Service Bulletin No. power and responsibilities among the and BB±1168 2607, Revision 1, dated April 1995, various levels of government. Therefore, through BB±1192 which specifies procedures for in accordance with Executive Order 200T and B200T ...... BT±1 through BT±30 inspecting the main landing gear drag 12612, it is determined that this 200C and B200C ...... BL±1 through BL±72 leg lock link on Beech 90, 99, 100, and 200CT and B200CT .. BN±1 through BN±4 proposal would not have sufficient 65±A90±2(RU±21B) .. LS±1 through LS±3 200 series airplanes to ensure that the federalism implications to warrant the roll pin hole is drilled through both 65±A90±3(RU±21C) .. LT±1 through LT±2 preparation of a Federalism Assessment. 200 (A100±1) ...... BB±3 through BB±5 walls of the link. For the reasons discussed above, I A100 (U±21F) ...... B±95 through B±99 After examining the circumstances certify that this action (1) is not a A200 (C±12A and C± BC±1 through BC± and reviewing all available information ‘‘significant regulatory action’’ under 12C). 75, and BD±1 related to the incident described above, Executive Order 12866; (2) is not a through BD±30 the FAA has determined that AD action A200C (UC±12B) ...... BJ±1 through BJ±66 ‘‘significant rule’’ under DOT should be taken to prevent main landing A200CT (C±12D) ...... BP±1, BP±22, and Regulatory Policies and Procedures (44 gear collapse caused by drag leg lock BP±24 through FR 11034, February 26, 1979); and (3) if link failure, which, if not detected and BP±45 promulgated, will not have a significant corrected, could result in loss of control A200CT (FWC±12D) . BP±7 through BP±11 economic impact, positive or negative, A200CT (RC±12D) .... GR±1 through GR±13 of the airplane. A200CT (RC±12H) .... GR±14 through GR± Since an unsafe condition has been on a substantial number of small entities under the criteria of the Regulatory 19 identified that is likely to exist or A200CT (RC±12G) ... FC±1 through FC±3 develop in other Beech 90, 99, 100, and Flexibility Act. A copy of the draft regulatory evaluation prepared for this 200 series airplanes of the same type Note 1: This AD applies to each airplane design, the proposed AD would require action has been placed in the Rules identified in the preceding applicability inspecting the main landing gear drag Docket. A copy of it may be obtained by provision, regardless of whether it has been leg lock link to ensure that the hole for contacting the Rules Docket at the modified, altered, or repaired in the area the roll pin is drilled through both walls location provided under the caption subject to the requirements of this AD. For of the link and, if not drilled completely ADDRESSES. airplanes that have been modified, altered, or through both link walls, replacing any repaired so that the performance of the List of Subjects in 14 CFR Part 39 requirements of this AD is affected, the main landing gear lock link. owner/operator must use the authority Accomplishment of the proposed Air transportation, Aircraft, Aviation safety, Safety. provided in paragraph (d) of this AD to inspection would be in accordance with request approval from the FAA. This Beech Service Bulletin No. 2607, The Proposed Amendment approval may address either no action, if the Revision 1, dated April 1995. The current configuration eliminates the unsafe possible replacement would be Accordingly, pursuant to the condition, or different actions necessary to accomplished in accordance with the authority delegated to me by the address the unsafe condition described in applicable maintenance manual. Administrator, the Federal Aviation this AD. Such a request should include an The FAA estimates that 2,229 Administration proposes to amend part assessment of the effect of the changed airplanes in the U.S. registry would be 39 of the Federal Aviation Regulations configuration on the unsafe condition (14 CFR part 39) as follows: addressed by this AD. In no case does the affected by the proposed AD, that it presence of any modification, alteration, or would take approximtely 5 work hours PART 39ÐAIRWORTHINESS repair remove any aircraft from the per airplane to accomplish the proposed applicability of this AD. DIRECTIVES action, and that the average labor rate is Compliance. Required within the next 100 approximately $60 an hour. Parts cost 1. The authority citation for part 39 hours time-in-service (TIS) after the effective approximately $100 per airplane. Based continues to read as follows: date of this AD, unless already accomplished. on these figures, the total cost impact of To prevent main landing gear collapse the proposed AD on U.S. operators is Authority: 49 U.S.C. 106(g); 40101, 40113, caused by drag leg lock link failure, which, 44701. estimated to be $891,600. This figure is if not detected and corrected, could result in loss of control of the airplane, accomplish the based on the assumption that all of the § 39.13 [Amended] following: affected airplanes have incorrectly 2. Section 39.13 is amended by (a) Inspect the main landing gear drag leg drilled drag leg lock links and that none adding a new AD to read as follows: lock link to ensure that the hole for the roll of the owners/operators of the affected pin is drilled completely through both walls airplanes have replaced the incorrectly Beech Aircraft Corporation: Docket No. 95– of the link in accordance with the drilled links. CE–32–AD. ACCOMPLISHMENT INSTRUCTIONS Beech has informed the FAA that Applicability: The following airplane section of Beech Service Bulletin No. 2607, parts have been distributed to equip models and serial numbers, certificated in Revision 1, dated April 1995. approximately 648 airplanes. Assuming any category: (b) Prior to further flight, replace any drag leg lock link that does not have the roll pin that these distributed parts are Models Serial Nos. hole drilled through both walls of the link. incorporated on the affected airplanes, Accomplish this replacement in accordance the cost of the proposed AD would be F90 ...... LA±2 through LA±236 with the applicable maintenance manual reduced by $259,200 from $891,600 to 99, 99A, A99A, B99, U±1 through U±239 (c) Special flight permits may be issued in $632,400. In addition, the FAA believes and C99. accordance with section 21.197 and 21.199 of Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42481 the Federal Aviation Regulations (14 CFR Pennsylvania Avenue NW., Washington, relevant circumstances, in determining 21.197 and 21.199) to operate the airplane to D.C. 20580, (202) 326–2514. Individuals whether to grant or deny a subsequent a location where the requirements of this AD filing comments need not submit petition by a respondent to reopen and can be accomplished. multiple copies. Submissions should be set aside an order on the basis of (d) An alternative method of compliance or adjustment of the compliance time that captioned: Sunset Rule, FTC File No. changes in law, fact, or the public provides an equivalent level of safety may be P954211. interest. See Commission Rule 2.51, 16 approved by the Manager, Wichita Aircraft FOR FURTHER INFORMATION CONTACT: CFR 2.51. Certification Office (ACO), 1801 Airport Justin Dingfelder, Assistant Director for Communication by Outside Parties to Road, Room 100, Mid-Continent Airport, Enforcement, Division of Enforcement, Commissioners or Their Advisors Wichita, Kansas 67209. The request shall be Bureau of Consumer Protection, (202) forwarded through an appropriate FAA 326–3017; Roberta Baruch, Deputy Pusuant to Commission Rule Maintenance Inspector, who may add Assistant Director for Compliance, 1.26(b)(5), 16 CFR § 1.26(b)(5), comments and then send it to the Manager, Bureau of Competition, (202) 326–2861. communications with respect to the Wichita ACO. SUPPLEMENTARY INFORMATION: Elsewhere merits of this proceeding from any Note 2: Information concerning the in today’s Federal Register notice, the outside party to any Commissioner or existence of approved alternative methods of Commission is publishing a Policy Commissioner advisor during the course compliance with this AD, if any, may be of this rulemaking will be subject to the obtained from the Wichita ACO. Statement Regarding the Duration of Competition and Consumer Protection following treatment. Written (e) All persons affected by this directive communications, including written may obtain copies of the document referred Orders. As explained in that notice, the Commission proposes a rule, rather than communications from members of to herein upon request to the Beech Aircraft Congress, will be forwarded promptly to Corporation, P.O. Box 85, Wichita, Kansas case-by-case determinations, to 67201–0085; or may examine this document implement that policy with respect to the Secretary for placement on the at the FAA, Central Region, Office of the existing administrative orders. public record. Oral communications, Assistant Chief Counsel, Room 1558, 601 E. The Commission is soliciting not including communications from 12th Street, Kansas City, Missouri 64106. comments on the proposed rule. The members of Congress, are permitted Issued in Kansas City, Missouri, on August rule would provide that, in general, all only when such oral communications 10, 1995. provisions of existing administrative are transcribed verbatim or summarized Gerald W. Pierce, orders would automatically terminate (at the discretion of the Commissioner Acting Manger, Small Airplane, Aircraft (‘‘sunset’’) 20 years from the date that or Commissioner advisor to whom such Certification Service. the order was issued.1 The rule would oral communications are made) and are [FR Doc. 95–20274 Filed 8–15–95; 8:45 am] established an exception, however, promptly placed on the public record, together with any written BILLING CODE 4910±13±M where a federal court complaint alleging a violation of an existing order was filed communications and summaries of any (with or without an accompanying oral communications relating to such oral communications. Oral FEDERAL TRADE COMMISSION consent decree) within the last 20 years, or where such a complaint is communications from members of 16 CFR Part 3 subsequently filed with respect to an Congress will be transcribed or existing order that has not yet expired. summarized (at the discretion of the Duration of Existing Competition and In that event, the order would run for Commissioner or Commissioner advisor Consumer Protection Orders another 20 years from the date that the to whom such oral communications are most recent complaint was filed with made) and promptly placed on the AGENCY: Federal Trade Commission the court, unless the complaint has been public record, together with any written (FTC). dismissed, or the court has ruled that communications and summaries of any ACTION: Notice of proposed rulemaking. the respondent did not violate any oral communications relating to such oral communications. SUMMARY: The Commission proposes a provision of the order, and the dismissal rule (‘‘Sunset Rule’’) that would or ruling has not been appealed (or has Regulatory Flexibility Act terminate existing administrative orders been upheld on appeal). The Commission’s order would remain in On the basis of information currently where certain conditions have been met, available to the Commission, it is consistent with Commission policy effect while the court complaint and any appeal are pending. anticipated that the proposed rule will announced elsewhere in today’s Federal result in the elimination of a substantial Register. Curently, the Commission may The filing of a court complaint would not affect the duration of an order’s number of existing orders that no longer set aside the provisions of such orders serve the public interest. Accordingly, upon petition of the respondent, or application to any respondent that is not named as a defendant in the complaint. the Commission has determined at this pursuant to show cause proceedings time that the Regulatory Flexibility Act initiated sua sponte by the Commission. The Commission, however, may consider whether a complaint alleging does not require an initial or final The proposed rule will reduce the order violations has ever been filed regulatory flexibility analysis, because administrative expense and burden against a respondent, and any other the proposed rule would not have associated with those procedures by significant impact on a substantial automatically vacating certain order 1 Orders that are 20 years or older would sunset number of small entities within the provisions that no longer serve the 30 days after publication of the final rule. Certain meaning of the Act. 5 U.S.C. 605. This public interest. provisions in existing administrative orders will notice serves as certification to that DATES: Written comments must be expire, or have already expired, according to their own terms, and the proposed rule would not affect effect for purposes of the Small Business submitted on or before September 15, the duration of those provisions. The rule would Administration. 1995. also not revive any order provision that the Nonetheless, to ensure that no ADDRESSES: Written comments should Commission has previously reopened and set aside. substantial economic impact is See 16 CFR §§ 2.51 & 3.72. The rule would not be submitted in twenty copies to Donald apply to in camera orders or other procedural or overlooked, the Commission requests S. Clark, Secretary, Federal Trade interlocutory rulings by an Administrative Law public comment on the effect of the Commission, Room 159, Sixth Street & Judge or the Commission. proposed rule on costs, profitability, 42482 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules competitiveness, and employment in preceding that date. If more than one RAILROAD RETIREMENT BOARD small entities. Whether preparation of a complaint was or is filed while the final regulatory analysis is warranted order remains in force, the relevant 20 CFR Part 230 will be determined after receipt and complaint for purposes of this RIN 3220±AA61 review of such comments, if any. paragraph will be the latest filed Effective Date complaint. An order subject to this Reduction and Non-Payment of paragraph will terminate 20 years from Annuities by Reason of Work The Commission will announce an the date on which a court complaint effective date for the rule upon AGENCY: Railroad Retirement Board. described in this paragraph was or is publication of the rule in final form. ACTION: Proposed rule. filed, except as provided in the Petitions to stay, in whole or in part, the termination of an order pursuant to the following sentence. If the compliant was SUMMARY: The Railroad Retirement rule shall be filed pursuant to or is dismissed, or a federal court rules Board (Board) proposes to revise Part Commission Rule 2.51, 16 CFR § 2.51. In or has ruled that the respondent did not 230 of its regulations to explain how the case of orders that have been in violate any provision of the order, and employment or self-employment after effect for at least 20 years, the rule the dismissal or ruling was or is not an annuitant’s annuity beginning date would provide respondents with 30 appealed, or was or is upheld on appeal, may cause a reduction in or non- days to the file such a petition before the order will terminate according to payment of the annuity. the order is automatically terminated by paragraph (b)(3)(i) of this section is DATES: Comments must be received by the rule. Pending the disposition of such though the complaint was never filed; September 15, 1995. a petition, the order would be deemed provided, however, that the order will ADDRESSES: Secretary to the Board, to remain in effect without interruption. not terminate between the date that Railroad Retirement Board, 844 Rush such complaint is filed and the later of List of Subjects in 16 CFR Part 3 Street, Chicago, Illinois 60611. the deadline for appealing such FOR FURTHER INFORMATION CONTACT: Administrative practice and dismissal or ruling and the date such Thomas W. Sadler, Assistant General procedure, Claims, Equal access to dismissal or ruling is upheld on appeal. Counsel, Railroad Retirement Board, justice, Lawyers. The filing of a complaint described in 844 Rush Street, Chicago, Illinois 60611, Accordingly, the Federal Trade this paragraph will not affect the (312) 751–4513, TDD (313) 754–4701. Commission proposes to amend Title duration of any order provision that has SUPPLEMENTARY INFORMATION: Sections 16, Chapter I, Subchapter A, of the Code expired, or will expire, by its own 2(f) and 2(g)(2) of the Railroad of Federal Regulations as follows: terms. The filing of a complaint Retirement Act (45 U.S.C. 231a (f) and PART 3ÐRULES OF PRACTICE FOR described in this paragraph also will not (g)(2)) provide for a reduction in or non- ADJUDICATIVE PROCEEDINGS affect the duration of an order’s payment of an annuity if post-retirement application to any respondent that is not earnings exceed the limits set forth in 1. The authority for Part 3 would named in the complaint. section 203 of the Social Security Act continue to read as follows: (45 U.S.C 403). Although these Authority: Sec. 6, 38 Stat. 721 (15 U.S.C. (iii) Stay of Termination. Any party to provisions were enacted as part of the 46), unless otherwise noted. an order may seek to stay, in whole or Railroad Retirement Act of 1974 (Pub. L. 2. Section 3.72 would be amended by part, the termination of the order as to 93–445, Title I, 88 Stat. 1312), the Board adding a new paragraph 3.72(b)(3) to that party pursuant to paragraph (b)(3)(i) has never explained in its regulations read as follows: or (ii) of this section. Petitions for such how such provisions operate. stays shall be filed in accordance with Sections 230.5 through 230.16 of § 3.72 Reopening. the procedures set forth in § 2.51 of these proposed regulations explain how * * * * * these rules. Such petitions shall be filed the earnings limitations set forth in (b) * * * on or before the date on which the order section 203 of the Social Security Act (3) Termination of existing orders. (i) would be terminated pursuant to apply to a railroad retirement benefit. Generally. Notwithstanding the paragraph (b)(3)(i) or (ii) of this section. Specifically, these proposed sections foregoing provisions of this rule, and Pending the disposition of such a explain how an individual attains an except as provided in paragraphs petition, the order will be deemed to insured status so that the earnings (b)(3)(ii) and (iii) of this section, an remain in effect without interruption. limitations are applicable to his or her order issued by the Commission before benefit, what portion of a railroad August 16, 1995, will be deemed, (iv) Orders not terminated. Nothing in retirement benefit is subject to these without further notice or proceedings, to § 3.72(b)(3) is intended to apply to in earnings restrictions (the work terminate 20 years from the date on camera orders or other procedural or deduction component), and how a which the order was first issued, or on interlocutory rulings by an railroad retirement benefit may be [30 days following publication of the Administrative Law Judge or the reduced or not paid because of post- retirement earnings. final rule in the Federal Register], Commission. whichever is later. Secton 230.9 sets forth a revised (ii) Exception. This paragraph applies By direction of the Commission. interpretation of the work deduction to the termination of an order issued component subject to deduction for before August 16, 1995, where a Donald S. Clark, excess earnings. The revised complaint alleging a violation of the interpretation tracks explicitly the order was or is filed (with or without an Secretary. language of sections 2(f)(1) and 2(f)(2) of accompanying consent decree) in [FR Doc. 95–20143 Filed 8–15–95; 8:45 am] the Railroad Retirement Act. These federal court by the United States or the sections provide that the work Federal Trade Commission while the BILLING CODE 6750±01±M deduction component of the tier I order remains in force, either on or after benefit is the amount of that benefit August 16, 1995, or within the 20 years attributable to post-1974 railroad service Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42483 and all social security coverage wages costly and impose substantial and Budget under Control Nos. 3220– and self employment income. The administrative burdens on agency staff. 0032 and 3220–0073. Railroad Retirement Board has been Finally, the change in interpretation List of Subjects in 20 CFR 230 computing the work deduction as the will result in recurring benefit difference between a hypothetical tier I recomputations resulting from Railroad employees, Railroad benefit computed on the basis of all additional earnings. Because of the retirement. service and a hypothetical tier I benefit delay in posting these earnings there For the reasons set out in the computed using only pre-1974 railroad will occur additional overpayments that preamble, Title 20, Chapter II, of the service. This method of computation will be subject to recovery action. In Code of Federal Regulations is proposed substantially overvalues pre-1975 summary, the Labor Member believes to be amended as follows: railroad service and results in a smaller that the action of the majority is 1. Part 230 is revised to read as work deduction component than arbitrary and capricious, will adversely follows: contemplated by the language of the affect rights and expectations of our statute. This revised definition would beneficiaries, and is contrary to the PART 230ÐREDUCTION AND NON- become effective no earlier than January intention of Congress in drafting the PAYMENT OF ANNUITIES BY REASON 1, 1996. language in question. OF WORK The Labor Member of the Railroad Sections 230.17 through 230.20 of Retirement Board dissented from the these proposed regulations explain how Sec. vote of the majority of the Board to an annuitant must report his or her post- 230.1 Introduction. adopt the revised definition of the work retirement earnings to the Board and 230.2 Definitions. deduction component and wishes to what penalties may apply for failure to 230.3 Loss of disability annuity because of express his views on that change. It is make such reports. Finally, proposed earnings and penalties. the Labor Member’s opinion that the § 230.21 explains when the Board may 230.4 Loss of annuity for month in which previous definition of the work suspend the payment of a benefit compensated service is rendered. 230.5 Earnings limitation; definitions. deduction component of the tier I because the annuitant is currently 230.6 Earnings limitation; annual earnings benefit is the correct interpretation of engaging in employment or self- test. the statute, giving meaning not only to employment. 230.7 Earnings limitation; earnings in a the wording of the statute itself, but also Other restrictions apply to a railroad taxable year. to the intention of Congress in enacting retirement benefit because of post- 230.8 Earnings limitation; work deduction that provision. Congress, in subjecting retirement work. Sections 2(e)(3), (e)(5) insured status. tier I benefits to work deductions, like and (g)(1) of the Act (45 U.S.C. 230.9 Earnings limitation; retirement work social security benefits, nevertheless 231a(e)(3), (e)(5), and (g)(1)) provide for deduction component. recognized that until 1975 these benefits the non-payment of a benefit for any 230.10 Earnings limitation; survivor work were not subject to such deductions. By month in which an annuitant performs deductions. 230.11 Earnings limitation; yearly amount providing that only that part of the tier compensated service for an employer subject to work deductions. I benefit as is computed on the basis of under the Act. Proposed § 230.4 230.12 Earnings limitation; method of social security wages and post-1974 explains how these provisions apply to charging. railroad compensation Congress a railroad retirement benefit. Section 230.13 Earnings limitation; monthly benefits intended to preserve that portion of the 2(e)(4) of the Act provides for a special payable. tier I benefit based on railroad earnings earnings limitation for disability 230.14 Earnings limitation; monthly before 1975 as not subject to work annuitants. A reference to this earnings test. deductions. The construction given the limitation is found in proposed § 230.3. 230.15 Earnings limitation; self- Railroad Retirement Act by the majority Proposed § 230.22 explains how work employment—substantial services. results in a much smaller exempt outside the United States may affect 230.16 Evaluation of factors involved in substantial services test. amount with the value of pre-1975 payment of a benefit. 230.17 Obligation to report earnings. railroad earnings eroding more and Finally, the Railroad Unemployment 230.18 Penalty deductions for failure to more each year. In the view of the Labor Insurance and Retirement Improvement timely report earnings. Member, this is directly contrary to the Act of 1988, Public Law 100–647, 230.19 Good cause for failure to make intention of Congress to preserve the section 7302(b) (102 Stat. 3342, 3777), required reports. value of pre-1975 railroad service, and amended section 2(e) of the Railroad 230.20 Request by Board for reports of since the current method follows past Retirement Act to provide for an earnings; effect of failure to comply with opinions of agency staff, the proposed earnings limitation applicable to the tier request. change will have difficulty passing legal II and supplemental annuity 230.21 Current suspension of work challenge. components of a railroad retirement deduction component because an annuity where an employee or spouse individual works or engages in self- The Labor Member is of the opinion employment. that the majority’s interpretation of the annuitant performs work for wages for 230.22 Employment outside the United work deduction component has been the last employer(s) for whom he or she States. manufactured solely to increase the worked prior to his or her annuity 230.23 Last person service work deductions. amount of that component, by as much beginning date (commonly known as 230.24 Exception concerning service to a as several hundred dollars per month, last person service). These provisions local lodge or division of a railway labor so as to reduce benefit payments. He are explained in proposed § 230.23. organization. believes that the majority’s action is The Board, in conjunction with the Authority: 45 U.S.C. 231f. arbitrary and capricious, compromises Office of Management and Budget, has due process, and that it is wrong to determined that this is not a major rule § 230.1 Introduction. change a long-standing agency under Executive Order No. 12866; This part describes what events may interpretation without a compelling therefore, no regulatory impact analysis cause a reduction in or nonpayment of reason to do so. Moreover, analysis is required. Information collections part or all of an individual’s annuity prepared by agency staff has shown that required by this part have been under the Railroad Retirement Act as the change in interpretation will be approved by the Office of Management the result of the annuitant engaging in 42484 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules employment or self-employment after § 230.3 Loss of disability annuity because attained retirement age before the close his or her annuity beginning date. of earnings and penalties. of his or her taxable year, 331⁄3 percent The provisions pertaining to loss of a of the amount of earnings above the § 230.2 Definitions. disability annuity because of earnings annual limit that must be applied Annuity means a payment due an and penalties may be found in part 220, against the amount of benefit subject to entitled person for a calendar month Subpart M of this chapter. work deductions. If the individual has and made to him or her on the first day not attained retirement age before the of the following month. § 230.4 Loss of annuity for month in which compensated service is rendered. close of his or her taxable year, the Retirement Age means age 65, with applicable percentage is 50 percent. The (a) If an individual in receipt of an respect to an employee or spouse who excess earnings as derived under the annuity renders compensated service to attains age 62 before January 1, 2000 preceding sentences, if not a multiple of an employer covered under the Railroad (age 60 in the case of a widow(er), $1, shall be reduced to the next lower remarried widow(er) or surviving Retirement Act, as defined in part 202 of this chapter, he or she shall not be $1. divorced spouse). For an employee or (d) Monthly exempt amounts means paid an annuity with respect to any spouse who attains age 62 (or age 60 in the amount of wages which an the case of a widow(er), remarried month in which such service is rendered. annuitant may earn in any month widow(er), or surviving divorced without part of his or her annuity being spouse) after December 31, 1999, (b) If an employee in receipt of an annuity renders compensated service to deducted because of excess earnings. retirement age means the age provided The monthly exempt amount is for in section 216(1) of the Social an employer covered under the Railroad Retirement Act, as defined in part 202 determined periodically by the Security Act. Secretary of Health and Human Services Social Security Overall Minimum of this chapter, no spouse annuity or divorced spouse annuity based on the in accordance with § 404.430 of this title Guarantee means the benefit paid to an and is published in the Federal employee which is equal to the total employee’s earnings record shall be paid with respect to any month in Register, usually in October in the year amount of family benefits which would preceding the year in which it applies. be payable under the Social Security which the employee renders such service. The monthly exempt amount applies Act on the earnings record of that only in an annuitant’s grace year or employee had his or her railroad § 230.5 Earnings limitation; definitions. years (see § 230.14 of this part). compensation been covered under that As used in this part: statute and not the Railroad Retirement (a) Earnings shall have the same § 230.6 Earnings limitation; annual Act. This benefit is only paid when it is meaning as that term is defined in earnings test. greater than the amount of annuities § 404.429 of this title. Generally, (a) Under the annual earnings test, produced by the benefit formulas under earnings shall include: deductions are made from an annuity the Railroad Retirement Act. (1) Remuneration for services payable to an annuitant for each month Tier I Benefit means the benefit rendered as an employee, and in a calendar year in which the component of an annuity under the (2) Any earnings from self- auunitant is under age 70 and to which Railroad Retirement Act calculated employment (less any loss from self- excess earnings are charged. This using Social Security Act formulas and employment for the year). deduction is in an amount equal to the based upon earnings covered by either (3) Deferred income from self- lesser of the amount of the excess the Railroad Retirement Act or the employment which is received in a year earnings so charged or the total amount Social Security Act. after the year in which entitlement to an of the work deduction component, as Tier II Benefit means the benefit annuity under the Railroad Retirement explained in § 230.11 of this part. component calculated under a formula Act begins is not included in (b) Deductions are made from an found in the Railroad Retirement Act determining the individual’s excess annuity payable on the basis of an and based only upon earnings in the earnings if it is based on services employee’s earnings record because of railroad industry. performed before entitlement begins. the employee’s excess earnings. Vested Dual Benefit means a monthly (b) Annual Exempt Amount means However, deductions will not be made payment due an entitled person in the maximum amount of money that can from the annuity payable to a divorced addition to the tier I and tier II benefit. be earned in a year without losing any spouse who has been divorced from the The benefit is payable to employee annuity because of earnings. Annuitants employee for at least two years. annuitants who met certain who are between 60 and retirement age (c) If an annuity is payable to a person requirements under the Railroad during the entire year have a lower who is not the employee but who is Retirement Act and Social Security Act annual exempt amount than those who entitled on the basis of the earnings prior to 1975. The vested dual benefit attain retirement age during the year, are record of the employee and such person restores, in part, any reduction in the over retirement age during the whole has excess earnings charged to a month, tier I benefit due to receipt of a social year or die in the year they would have a deduction is made only from that security benefit. attained retirement age. The amount person’s annuity for that month. This Work Deduction Component means which constitutes the annual exempt deduction is in an amount equal to the that part of an individual’s annuity amount is determined periodically by lesser of the amount of the excess which is subject to non-payment or the Secretary of Health and Human earnings so charged or the total amount reduction because of employment or Services in accord with § 404.430 of this of the work deduction component, as self-employment after the annuity title and is published in the Federal explained in § 230.11 of this part. See beginning date (see § 230.9 of this part). Register, usually in October in the year § 230.12 of this part for the method of The work deduction component for a preceding the year in which it applies. charging excess earnings. survivor annuitant is the entire annuity No annual exempt amount applies with (see § 230.10 of this part). The special regard to the reduction due to last § 230.7 Earnings limitation; earnings in a work deduction component for last person service. See § 230.23 of this part. taxable year. person service work deductions is (c) Excess earnings means, with (a) In applying the annual earnings defined in § 230.23 of this part. respect to an individual who has test, all of an annuitant’s earnings for all Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42485 months of the annuitant’s taxable year accumulated sufficient wage quarters (c) Any benefit payable under the are used even though the individual which, when added to all quarters of social security overall minimum may not be entitled to an annuity during railroad compensation after 1974 would guarantee is treated as a social security all months of the taxable year. However, equal the number of quarters of coverage benefit and is subject to the same work in the case of a survivor annuity, necessary to have an insured status deductions as would be applicable to a earnings after the annuity terminates are under the Social Security Act. social security benefit. not included in the total earnings for the (c) A spouse has a work deduction taxable year that is used for the annual insured status when he or she: § 230.10 Earnings limitation; survivor work deductions. earnings test. The taxable year of an (1) Is married to an employee who has employee is presumed to be a calendar or who acquires a work deduction The total survivor annuity is subject year until it is shown to the satisfaction insured status, or to reduction for excess earnings except of the Railroad Retirement Board that (2) Is vested for a vested dual benefit that work deductions are not applicable the individual has a different taxable amount. to: year. A self-employed individual’s (d) If the employee has a work (a) A disabled child annuitant age 18 taxable year is a calendar year unless deduction insured status, both the or over, (b) A disabled annuitant under age 60 the individual has a different taxable employee and the spouse may lose part who became entitled to a disabled year for the purposes of subtitle A of the of their annuities because of the widow’s annuity before age 60 (work Internal Revenue Code of 1986. The employee’s earnings. A spouse may also deductions become applicable when the number of months in a taxable year is lose part of his or her annuity if the spouse works. disabled widow attains age 60), not affected by the time an application (c) Any survivor annuitant at least age is filed, attainment of any particular age, (e) A divorced spouse has a work deduction insured status when he or she 70, and marriage or the termination of marriage, (d) Any survivor annuitant who was married to an employee who has or adoption, or the death of the annuitant. receives a social security benefit which who acquires a work deduction insured (b) Remuneration for services is reduced for work deductions, if the status. A divorced spouse who has been rendered as an employee are includable total amount of excess earnings are divorced from the employee for at least as earnings for the months and year in recoverable from the social security two years is not subject to deductions which the annuitant rendered the benefit. compensated services. Net earnings for the employee’s excess earnings, from self-employment, or net losses however, the divorced spouse is still § 230.11 Earnings limitation; yearly therefrom, are includable as earnings or subject to deductions based on his or amount subject to work deductions. losses in the year for which such her own earnings. The yearly amount subject to work earnings or losses are reportable for deductions is determined by § 230.9 Earnings limitation; retirement Federal income tax purposes. work deduction component. multiplying the monthly work (c) Earnings in and after the month an deduction component by the number of (a) Employee annuity. The amount of individual attains age 70 will not be months subject to withholding for work any employee annuity which is subject used to figure excess earnings. For the deductions in a year. The amount to be to work deductions is the amount of the employed individual, wages for months withheld for work deductions is the tier I component of the employee prior to the month of attainment of age annuitant’s excess earnings as defined annuity computed on the basis of the 70 are used to figure the excess in § 230.5 of this part or the total work employee’s railroad retirement covered earnings. For the self-employed deduction component, whichever compensation and service subsequent to individual, the pro rata share of the net would be less. earnings or net loss for the taxable year 1974 and the employee’s wages and self- for the period prior to the month of employment income derived from § 230.12 Earnings limitation; method of charging. attainment of age 70 is used to figure the employment covered under the Social excess earnings. If the annuitant was not Security Act, plus any vested dual (a) Months charged. Excess earnings, engaged in self-employment prior to the benefit payable. If the annuity is as described in § 230.5 of this part, of an month of attainment of age 70, any reduced for early retirement, then the individual are charged to each month subsequent earnings or losses from self- age reduction factor is applied to this beginning with the first month the employment in the same taxable year result. Work deductions will not apply individual is entitled to benefits in the will not be used to figure the excess to the tier I component for any month taxable year in question and continuing, earnings. in which that component is reduced due if necessary, to each succeeding month to receipt of social security benefits. in such taxable year until all of the § 230.8 Earnings limitation; work (b) Spouse annuity. The tier I work individual’s excess earnings have been deduction insured status. deduction component for the spouse or charged. Excess earnings, however, are (a) An individual entitled to a divorced spouse is the amount of the not charged to any month described in retirement annuity must have a work tier I component computed on the basis §§ 230.13 and 230.14 deduction insured status for his or her of the employee’s railroad retirement (b) Amount of excess earnings annuity to be reduced by work covered compensation and service charged—(1) Employee’s excess deductions. No work deduction insured subsequent to 1974 and the employee’s earnings. The employee’s excess status is required for the reduction due wages and self-employment income earnings are charged on the basis of $1 to last person service employment. See derived from employment covered of excess earnings for each $1 of the § 230.23 of this part. under the Social Security Act. A employee’s and his or her spouse’s or (b) An employee has a work spouse’s vested dual benefit is entirely divorced spouse’s monthly work deduction insured status when he or she subject to reduction for work deduction components. has sufficient quarters of coverage under deductions. Work deductions will not (2) Excess earnings of annuitant other the Social Security Act to be eligible for apply to the tier I component for any than the employee. The excess earnings a social security benefit, or would be month in which that component is of an annuitant other than an employee- eligible for a benefit under that Act if he reduced due to receipt of social security annuitant are charged on the basis of $1 or she was old enough and has benefits. of excess earnings for each $1 of his or 42486 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules her monthly work deduction Security Act in excess of 45 hours in a § 230.15 of this part) in the operation of component. month while outside the United States. a trade or business (or in a combination (3) Employee and spouse or divorced A nonwork month occurs even if there of trades and businesses if there are spouse both have excess earnings. If are no excess earnings in the year. more than one) as an owner or partner, both the employee and a spouse or (c) An annuitant’s grace year is: even though there may be no earnings divorced spouse entitled on his or her (1) The first year after 1977 in which or net earnings caused by the compensation record have excess there is a nonwork month; individual’s services during the month. (2) A year after 1977 in which there earnings, the employee’s excess (e) For purposes of applying the is a break in entitlement for at least one earnings are charged first against the monthly earnings test, an individual is month and the annuitant becomes total work deduction components presumed to have worked in self- entitled to a different type of annuity. payable on his or her compensation employment in each month of the The new grace year would then be the record, as described in paragraph (b)(1) individual’s taxable year until it is taxable year in which occurs the first of this section. Next, the excess earnings shown to the satisfaction of the Board nonwork month after the break in of the spouse or divorced spouse are that in a particular month the individual entitlement; charged (as described in paragraph did not perform substantial services in (3) The year in which an annuity (b)(2) of this section) against his or her any trade or business (or in a based upon having a child in care, a own work deduction component, but combination of trades and businesses if child’s annuity, or a child’s benefit only to the extent that such component there are more than one) from which the under the social security overall has not already been charged with the net income or loss is included in minimum guarantee ends for a reason excess earnings of the employee. computing the individual’s annual other than the death of the annuitant earnings (see § 230.7 of this part). § 230.13 Earnings limitation; monthly (this exception applies only if the benefits payable. annuitant is not entitled to any type of (f) For purposes of applying the (a) No matter how much an annuitant benefit in the month after entitlement to monthly earnings test, an individual is earns in a given taxable year, no the child’s annuity or the benefit based presumed to have performed services in deduction on account of excess earnings on a child in care ends; it does not any month for wages of at least as much will be made in a work deduction apply to an annuity based on age, only as the applicable monthly exempt component in any month is which: to an annuity payable because of a amount set for that month until it is (1) The annuitant was not entitled to child). shown to the satisfaction of the Board that the individual did not perform an annuity; Example 1: John, age 65, will retire from (2) The annuitant was entitled to a his railroad job in April of next year and services in that month for wages of at monthly earnings test and has a month apply for an annuity to begin May 1. least as much as the monthly exempt of entitlement in which he or she Although he will have earned $15,000 for amount. January-April of that year and plans to work neither worked for wages greater than § 230.15 Earnings limitation; self- part time, he will not earn an amount in the monthly exempt amount nor employmentÐsubstantial services. rendered substantial services in self- excess of the monthly exempt amount after employment (see § 230.14 of this part); April. John’s taxable year is the calendar (a) In the case of the monthly earnings year. Since next year will be the first year in (3) The annuitant was age 70; test, work deductions do not apply for which he has a nonwork month while any month in which the annuitant does (4) The annuitant was entitled to a entitled to benefits, it will be his grace year disability annuity other than as a and he will be entitled to the monthly not earn more than the monthly exempt disabled widow(er) and was under age earnings test for that year only. He will amount and does not render substantial 65; receive benefits for all months in which he services in self-employment, regardless (5) The annuitant was entitled to a does not earn an amount in excess of the of total earnings for the year. disabled child’s annuity; or monthly exempt amount (May-December) (b) A self-employed person’s monthly (6) The annuitant was a widow(er) even though his total earnings for the year work activity cannot be gauged under age 60 and entitled to a disabled have substantially exceeded the annual exempt amount. However, in the years that accurately by the amount of monthly widow(er)’s annuity. follow, only the annual earnings test will be earnings; therefore, the self-employed applied if he has earnings that exceed the person’s services are measured by § 230.14 Earnings limitation; monthly whether they are substantial (only if, earnings test. annual exempt amount, regardless of his monthly earnings. however, the monthly earnings test (a) No matter how much an annuitant Example 2: Lisa was entitled to a widow’s applies—once the monthly earnings test earns in a given taxable year, no annuity based upon having a child of her has been applied in a particular year, deduction on account of excess earnings deceased husband, the railroad employee, in work deductions are assessed based on will be made in benefits payable for any her care. The child marries in May, thus total yearly earnings). month which is a ‘‘nonwork’’ month terminating Lisa’s annuity in April. Since (c) The general test of whether (see paragraph (b) of this section) in the Lisa’s entitlement did not terminate by services are substantial is whether, in annuitant’s ‘‘grace year’’ (see paragraph reason of her death and she was not entitled to another type of railroad retirement view of the particular services rendered (c) of this section). annuity, she is entitled to a termination grace and the surrounding circumstances, the (b) A nonwork month is any month in year for that year. The following year Lisa person can reasonably be considered to which an individual is entitled to an applies for and becomes entitled to a be retired in a particular month. In annuity and: widow’s annuity based upon age. Because determining whether services rendered (1) Does not work in self-employment there was a break in entitlement to benefits in self-employment in a month are (see paragraphs (d) and (e) of this of at least one month before entitlement to section); another type of annuity, this year will also substantial, the following factors, among (2) Does not perform services for be a grace year if Lisa has a nonwork month others, may be considered: wages greater than the monthly exempt during it. (1) The amount of time devoted to the amount (see § 230.5 of this part); and (d) An individual works in self- business; (3) Does not work in remunerative employment in any month in which he (2) The nature of the services activity not covered by the Social or she performs substantial services (see rendered; Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42487 (3) A comparison of the services unreasonable. For example, an services in self-employment were rendered after retirement with the individual who worked only 15 hours in substantial, all other factors are services rendered before retirement; a month might nevertheless be found to considered. The presence of a capable (4) The setting in which the services have rendered substantial services if he manager, the kind and size of the were performed, including: the presence or she was managing a sizable business business, the amount of capital invested of a paid manager, a partner, or a family or engaging in a highly skilled and whether the business is seasonal, as member who manages the business; the occupation. well as any other pertinent factors, are type of business that is involved; the (2) More than 45 hours in a month considered in determining whether the amount of capital invested; and whether devoted to trade or businesses. Where individual’s services are such that he or the trade or business is seasonal. an individual devotes more than 45 she can reasonably be considered (d) An individual who alleges that he hours to all trades and businesses retired. or she did not render substantial during a calendar month, it will be services in any month or months shall found that the individual’s services are § 230.17 Obligation to report earnings. submit detailed information about the substantial unless it is established to the (a) General Rule. An individual who operation of the trade or business satisfaction of the Board that the during a taxable year is entitled to an covered, including the individual’s individual could reasonably be annuity is required to report to the activities in connection therewith. considered to be retired in the month Board the total amount of his or her When requested to do so by the Board, and, therefore, that such services were earnings for each taxable year. A exceed the individual shall also submit such not, in fact, substantial. the monthly exempt amount multiplied additional statements, information, and (b) Nature of services rendered. by the number of months in his or her other evidence as the Board may Consideration is also given to the nature taxable year, except that a report is not consider necessary for a proper of the services rendered by the required for a taxable year if: determination as to whether the individual in any case where a finding (1) The individual attained the age of individual rendered substantial services that the individual was retired would be 70 in or before the first month of his or in self-employment. unreasonable if based on time alone (see her entitlement to benefits in his or her paragraph (a) of this section). The more taxable year, or § 230.16 Evaluation of factors involved in highly skilled and valuable his or her substantial services test. (2) The individual’s benefits subject to services in self-employment are, the the earnings limitation were suspended In determining whether an more likely it is that the individual individual’s services are substantial, for reasons other than his or her excess rendering such services could not earnings for all months in which he or consideration is given to the following reasonably be considered retired. The factors: she was entitled to benefits and was regular performance of services also under age 70. (a) Amount of time devoted to trades tends to show that the individual has (b) Time for filing. The report required or businesses. Consideration is first not retired. Services are considered in by paragraph (a) of this section shall be given to the total amount of time the relation to the technical and made on a form prescribed by the Board self-employed individual devotes to all management needs of the business for and shall be filed on or before the 15th trades or businesses, the net income or which they are rendered. Thus, skilled day of the fourth month following the loss of which is includable in services of a managerial or technical close of an individual’s taxable year or computing his or her earnings as nature may be so important to the at such other time as may be set by the defined in § 230.7. For the purposes of conduct of a sizable business that such Board. this paragraph, the time devoted to trade services would be substantial even or business includes all the time spent though the time required to render the (c) Representative payee. Where an by the individual in any activity, services is considerably less than 45 individual is receiving benefits on whether physical or mental, at the place hours. behalf of another, the representative of business or elsewhere in furtherance (c) Comparison of services rendered payee shall be responsible for the report of such trade or business. This includes before and after retirement. Where required in paragraph (a) of this section. the time spent in advising and planning consideration of the amount of time (d) Requirement to furnish requested the operation of the business, making devoted to trade or business (see information. An annuitant, or the business contacts, attending meetings, paragraph (a) of this section) and the person reporting on his or her behalf, is and preparing and maintaining the nature of services rendered (see required to furnish any other facilities and records of the business. paragraph (b) of this section) is not information about the annuitant’s All time spent at the place of business sufficient to establish whether an earnings and services that the Board which cannot reasonably be considered individual’s services were substantial, requests for the purpose of determining unrelated to business activities is consideration is given to the extent and the correct amount of benefits payable considered time devoted to the trade or nature of the services rendered by the for a taxable year. business. In considering the weight to individual before his or her (e) Extension of time for filing be given to the time devoted to trades ‘‘retirement,’’ as compared with the report—(1) General. Notwithstanding or businesses the following rules are services performed during the period in the provision described in paragraph (b) applied: question. A significant reduction in the of this section, the Board may grant a (1) Forty-five hours or less in a month amount or importance of services reasonable extension of time for making devoted to trade or business. Where the rendered for the business tends to show the report of earning required under this individual establishes that the time that the individual is retired; absence of section if it finds that there is valid devoted to all of his or her trades or such reduction tends to show that the reason for a delay, but in no case may businesses during a calendar month was individual is not retired. the period be extended more than 3 not more than 45 hours, the individual’s (d) Setting in which services months for any taxable year. services in that month are not performed. Where consideration of (2) Requirements applicable to considered substantial unless other factors described in paragraphs (b) and requests for extensions: Before his or her factors (see paragraphs (b), (c), and (d) (c) of this section is not sufficient to annual report of earnings is due, an of this section), make such a finding establish whether or not an individual’s annuitant may request an extension of 42488 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules time for filing the report. The request failure to file a timely report is an provisions described in paragraph (b) of must be in writing and signed by the amount equal to the individual’s work this section, the amount of the penalty requester. deduction component for the last month deduction imposed for failure to file a (3) Valid reason defined. A valid of the year in which the overpayment timely report of earnings for a taxable reason is a bona fide need, problem, or occurs. If the total excess earnings year may not exceed the number of situation which makes it impossible or deduction for the year is less than the months in that year for which the very difficult for an annuitant (or his or work deduction component the penalty individual received and accepted a her representative payee) to meet the equals the total excess earnings or $10, benefit and for which deductions are annual report due date prescribed by whichever is larger. imposed by reason of his or her earnings law. This may be illness or disability of (2) Second failure to file timely report. for such year. the one required to make the report, The penalty deduction for the second absence or travel so far from home that failure to file a timely report is an § 230.19 Good cause for failure to make required reports. he or she does not have and cannot amount equal to twice the amount of the readily obtain the records needed for individual’s work deduction component (a) General. The failure of an making the report, inability to obtain for the last month of entitlement of the individual to make a timely report evidence required from another source year in which the overpayment occurs. required under this part will not result when such evidence is necessary in (3) Subsequent failures to file timely in a penalty deduction provided for in making the report, inability of an reports. The penalty deduction for the this part if the individual establishes to accoutant to compile the data needed third or subsequent failure to file a the satisfaction of the Board that his or for the annual report, or any similar timely report is an amount equal to her failure to file a timely report was situation which has a direct bearing on three times the amount of the due to good cause. Before making any the individuals’ ability to comply with individual’s work deduction component penalty determination provided for in the reporting obligation within the for the last month of entitlement of the this part the individual shall be advised specified time limit. year in which the overpayment occurs. of the penalty and good cause (4) Evidence that extension of time provisions and afforded an opportunity Example. For the first late report, the to establish good cause for failure to file has been granted. In the absence of violation period begins with the date of written evidence of a properly approved entitlement and ends with the last overpaid a timely report. The failure of the extension of time for making an annual year for which the report is late. For individual to submit evidence to report of earnings, it will be presumed subsequent late reports, the penalty applies establish good cause within a specified that no extension of filing time was to each overpaid year for which the report is time may be considered a sufficient granted. In such case it will be late. For example, an employee has the basis for a finding that good cause does necessary for the annuitant to establish following earnings record: not exist. For example, ‘‘good cause’’ whether he or she otherwise had good may be found where failure to file a Year Earnings cause (§ 230.19) for filing the annual timely report was caused by: report after the normal due date. (1) Serious illness of the individual, 1980 ...... Excess or death or serious illness in his or her (Approved by the Office of Management and 1981 ...... Budget under control numbers 3220–0032 1982 ...... Excess immediate family; and 3200–0073) 1983 ...... (2) Inability of the individual to 1984 ...... Excess obtain, within the time required to file § 230.18 Penalty deductions for failure to 1985 ...... Excess the report, earnings information from timely report earnings. 1986 ...... his or her employer because of death or (a) Penalty for failure to report 1987 ...... Excess serious illness of the employer or one in earnings; general. Penalty deductions 1988 ...... the employer’s immediate family; or are imposed only against an individual’s unavoidable absence of his or her retirement benefits, in addition to the If the employee reports his 1980, 1982 and employer; or destruction by fire or other deductions required because of his or 1984 earnings in February 1985, the report is damage of the employer’s business her excess earnings, if: late for 1980 and 1982. Since this is the first records; or failure or refusal of the late report, there is one penalty. The penalty (1) He or she fails to make a timely is equal to the work deduction component for employer to furnish the information report of his or her earnings as specified December 1982. If the employee reported his upon timely request therefor; in § 230.17 for a taxable year; and 1985 and 1987 earnings in July 1988, the (3) Destruction by fire, or other (2) It is found that good cause for report is late for 1985 and 1987. Since this damage of the individual’s business failure to timely report earnings (see is a subsequent late report, 1985 is records; § 230.19) does not exist; and considered the second late report and 1987 (4) Failure on the part of the Board to (3) A deduction is imposed because of is the third late report. The penalty amount furnish forms in sufficient time for an his or her excess earnings for that year; for 1985 is two times the work deduction individual to complete and file the and component for December 1985. The penalty report on or before the date it was due, (4) An overpayment of benefits amount for 1987 is three times the work provided the individual made a timely deduction component for December 1987. results, recovery of which is not waived, request to the Board for the forms. provided however, that if the person is (c) Penalty deduction imposed under (5) Reliance upon a written report to found to be without fault in causing the § 230.22 not considered. A failure to the Board made by, or on behalf of, the overpayment, no penalty shall be make a report as required by § 230.22 of annuitant before the close of the taxable assessed. this part for which a penalty deduction year, if such report contained sufficient (b) Determining amount of penalty is imposed is not counted as a failure to information about the annuitant’s deduction. The amount of the penalty report in determining under this section earnings or work to require suspension deduction for failure to report earnings whether a failure to report earnings or of his or her work deduction component for a taxable year within the prescribed wages is the first or subsequent failure and the report was not subsequently time is determined as follows: to report. refuted or rescinded. (1) First failure to file timely report. (d) Limitation on amount of penalty (b) Good cause for subsequent failure. The penalty deduction for the first deduction. Notwithstanding the Where circumstances are similar and an Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42489 individual fails on more than one any deduction under that part applies employment before the annuitant occasion to make a timely report good for such month. accepts benefits for the second month cause normally will not be found for the following the month in which he or she second or subsequent violation. § 230.22 Employment outside the United States. worked or engaged in self-employment. Such report shall be made on the form § 230.20 Request by Board for reports of (a) General rule. An annuitant who and in accordance with instructions earnings; effect of failure to comply with has a work deduction insured status as request. provided by the Board. provided in § 230.8 of this part shall (f) Penalty for failure to report. An (a) Request by the Board for report lose his or her work deduction individual who fails to file a report during taxable year; effect of failure to component for any month during which within the time limits required by comply. The Board may, during the he or she works in remunerative activity paragraph (e) of this section and who is course of a taxable year, request an not covered by the Social Security Act not able to show good cause for such annuitant to make a declaration of his outside the United States for more than failure, as provided for in § 230.19 of or her estimated earnings for his or her 45 hours. In the case of a survivor this part, shall be subject to the penalty taxable year and to furnish any other annuitant subject to work deductions, deductions provided for in § 230.18 of information about his or her earnings earnings from remunerative activity this part. that the Board may specify. If an outside the United States shall be (g) Extension of time to file. An annuitant fails to comply with such a charged against the annuity to the same individual may request an extension of request from the Board the annuitant’s extent that such earnings would have time to file the report required in failure in itself constitutes justification been charged had the remunerative paragraph (e) of this section in for a determination that it may activity taken place within the United accordance with § 230.17 of this part. reasonably be expected that the States. (Approved by the Office of Management and annuitant will have deductions imposed (b) Spouse annuitant. If an employee- under the earnings for that taxable year, Budget under control numbers 3220–0032 annuitant loses his or her work and 3220–0073.) and consequently the Board may deduction component for any month in suspend payment of the annuitant’s accordance with paragraph (a) of this § 230.23 Last person service work work deduction component for the section, then the amount of any spouse deductions. remainder of the taxable year. or divorced spouse work deduction (a) General rule. An individual in (b) Request by the Board for report component is also not paid in that receipt of an employee or spouse after close of taxable year; failure to month. However, the benefits of a annuity who receives remuneration in comply. After the close of his or her divorced spouse who has been divorced any month for services rendered as an taxable year, the Board may request an from the employee-annuitant for at least employee to the last person or persons annuitant to furnish a report of earnings 2 years are not subject to withholding (LPS) by whom such individual was for the closed taxable year and to because of the employee-annuitant’s employed before the date on which his furnish any other information about work activity. or her annuity began to accrue shall, in earnings for that year that the Board (c) Outside the United States. Work addition to any other deduction may specify. If the annuitant fails to activity outside the United States means required by this part, be subject to a comply with this request, such failure work activity outside the territorial deduction in his or her work deduction shall in itself constitute justification for boundaries of the 50 States, the District component, as defined in paragraph (b) a determination that the annuitant’s of Columbia, Puerto Rico, the U.S. of this section, for that month of $1 for work deduction component is subject to Virgin Islands, Guam, and American every $2 of remuneration received. deductions for each month in the Samoa. Self-employment by an alien in Unlike the earnings limitation found in taxable year (or only for the months Puerto Rico, the U.S. Virgin Islands, §§ 239.5–230.15 of this part there is no thereof specified by the Board). Guam, or American Samoa is monthly or annual exempt amount. § 230.21 Current suspension of work considered to be outside the U.S. unless Each $2 of remuneration received from deduction component because an the alien is a permanent resident of a a last person service employer subjects individual works or engages in self- State, the District of Columbia, Puerto the work deduction component to a $1 employment. Rico, the U.S. Virgin Islands, Guam, or reduction for that month. (a) Circumstances under which American Samoa. (b) Work deduction component. For benefit payments may be suspended. If, (d) Remunerative activity not covered purposes of this section, the work on the basis of information obtained by by the Social Security Act. deduction component of an individual or submitted to the Board, it is Remunerative activity not covered by in receipt of an employee annuity shall determined that an individual entitled the Social Security Act includes all be that portion of the annuity payable in to an annuity for any taxable year may employment or self-employment outside any month which is computed under reasonably be expected to have the United States unless the wages or section 3(b) of the Railroad Retirement deductions imposed against his or her net earnings from self-employment are Act as adjusted by section 3(g) of that work deduction component by reason of subject to social security taxes as Act (tier II benefit) plus the amount his or her earnings for such year, the provided for in the Internal Revenue computed under section 3(e) of that Act Board may, before the close of the Code. A trade or business which (supplemental annuity). With respect to taxable year, suspend such component produces only income which is not an individual in receipt of a spouse of the individual and of all other considered earnings from self- annuity, his or her work deduction persons entitled to benefits on the basis employment (for example dividends, or component shall be that portion of the of the individual’s earnings record. rental from real estate) is not considered annuity payable in any month (b) Duration of suspension. The remunerative employment. computed under section 4(b) of the suspension described in paragraph (a) of (e) Obligation to report. Any Railroad Retirement Act as adjusted this section shall remain in effect with annuitant under age 70 who becomes under section 4(d) of that Act (tier II respect to the work deduction employed or self-employed outside the benefit). component for each month until the United States shall file with the Board (c) Method of charging. An individual Board has determined whether or not a report of such employment or self- in receipt of a spouse annuity shall have 42490 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules the work deduction component of that earnings and the spouse’s work (Approved by the Office of Management annuity reduced by the amount of any deduction component is reduced first and Budget under Control Numbers 3220– deduction in the employee annuity for his or her earnings and then for the 0032 and 3320–0073.) required by paragraph (a) of this section. employee’s earnings. Example. An employee receives wages of Where both an employee and his or her (d) Maximum deduction. Any $400 from his or her last person service spouse have received remuneration as deductions imposed by this section for employer in a given month. The deductions described in paragraph (a) of this in the employee’s and his or her spouse’s any month shall not exceed 50 percent section, the employee’s work deduction work deduction components are computed as component is reduced for his or her of the work deduction component. follows: Compo- Annunity component LPS de- nent after duction deduction Employee tier 2 ...... $1,000 1 $191.75 $808.25 Supplemental annuity ...... 43 2 8.25 34.75 Spouse tier 2 ...... 450 200.00 250.00 Totals ...... $1,493 $400.00 $1,093.090 1 $200 × $1,000/$1,043 = 191.75. 2 $200 × $43/$1,043 = 8.25. § 230.24 Exception concerning service to a review and discuss the proposed should be addressed to Fredric K. local lodge or division of a railway labor regulations, which implement section Schroeder, Commissioner, organization. 130(b)(3) of the Rehabilitation Act of Rehabilitation Services Administration, In determining whether an annuity is 1973, as amended (the Act), to provide U. S. Department of Education, 600 subject to the provisions of this part, the greater funding continuity for tribal Independence Avenue, S.W., Room Board shall disregard any remuneration projects that are performing effectively 3028, Mary E. Switzer Building, for services rendered after December 31, by extending the normal 36-month Washington, D.C. 20202–2531. 1936, to an employer which is a local project period for up to 24 additional Comments may also be sent through the lodge or division of a railway labor months and to provide an opportunity internet to ‘‘American— organization if the remuneration for for public comment on the proposed [email protected]’’. such service is required to be changes to conform the purpose and SUPPLEMENTARY INFORMATION: The disregarded under the provisions of outcome of the program, consistent with proposed regulations, which would § 211.2 of this chapter. section 100(a)(2) of the Act, as revised implement section 130(b)(3) of the Act, by the 1992 Amendments, from Dated: August 7, 1995. would permit the granting, on a case-by- placement in suitable employment to By Authority of the Board. case basis, of extensions of up to 24 placement in gainful employment For the Board. months to tribal projects that meet the consistent with individual strengths, Beatrice Ezerski, requirements to be established in a new resources, priorities, abilities, § 371.5. The Secretary is interested in Secretary to the Board. capabilities, and informed choice. comments regarding this proposed new [FR Doc. 95–20078 Filed 8–15–95; 8:45 am] In addition, the meeting will provide section and whether the standard for BILLING CODE 7905±01±M an opportunity for public comment on determining to grant extension—which whether additional changes are needed considers compliance with program in existing program regulations in order requirements, continuing need for the DEPARTMENT OF EDUCATION to clarify requirements, reduce grantee project, and project effectiveness—is an burden, and increase program flexibility appropriate standard. In addition, the 34 CFR Part 371 and effectiveness. Secretary is particularly interested in RIN 1820±AB32 DATES: The public meeting is scheduled whether other changes are needed in the to be held from 8:00 a.m. to 10:15 a.m. Vocational Rehabilitation Service program, such as changes in the on August 30, 1995. Written comments requirements under § 371.21 for Projects for American Indians With must be submitted by September 11, Disabilities complying with certain State Vocational 1995. Rehabilitation (VR) Services Program AGENCY: Department of Education. ADDRESSES: The meeting will be held at requirements. These requirements The Red Lion Hotel, 300–112th Avenue, ACTION: Notice of public meeting. include developing individualized Bellevue, Washington. The meeting written rehabilitation programs for each SUMMARY: The Secretary announces a facilities and proceedings will be individual receiving services, providing public meeting to discuss the proposed accessible to people with disabilities. an opportunity for dissatisfied regulations published in the Federal Individuals participating in the recipients to file grievances under Register for comment on July 27, 1995 meeting are requested to provide a procedures comparable to the fair (60 FR 38608) and to assist in the written copy of their comments. hearing procedures required of State VR development of regulations Individuals who cannot attend the agencies, establishing minimum implementing the Vocational meeting are invited to send in written standards for providers of services Rehabilitation Service Projects for comments regarding the proposed comparable to those used by State VR American Indians with Disabilities regulations and on the other changes agencies, and making an effort to program. that may be needed that are identified provide a broad scope of VR services in The purpose of the meeting is to allow in the SUPPLEMENTARY INFORMATION a manner and at a level of quality interested parties an opportunity to section of this notice. Written comments comparable to the services provided by Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42491 State VR agencies. Do these application Dated: August 10, 1995. Environmental Protection Agency, 77 requirements need to be clarified or Howard R. Moses, West Jackson Boulevard, Chicago, revised in light of the changes made to Acting Assistant Secretary for Special Illinois, 60604. (312) 353–8656. the State VR Services Program by the Education and Rehabilitative Services. SUPPLEMENTARY INFORMATION: 1992 Amendments to the Act or because [FR Doc. 95–20226 Filed 8–15–95; 8:45 am] these requirements may be burdensome BILLING CODE 4000±01±P I. Background or unfeasible for a tribal program, Clean Air Act section 176(c)(3)(A)(iii) especially a developing one? In what requires, in order to demonstrate ways should tribal projects be ENVIRONMENTAL PROTECTION conformity with the applicable SIP, that comparable to VR programs AGENCY transportation plans and transportation administered by State VR agencies, improvement programs (TIPs) other than providing comparable 40 CFR Part 52 contribute to emissions reductions in rehabilitation services to the extent [IL132±1±7104; FRL±5278±2] ozone and carbon monoxide feasible as required by section nonattainment areas during the period 130(b)(1)(B) of the Act? Should Federal Approval and Promulgation of before control strategy SIPs are regulations establish additional Implementation Plans; Illinois approved by USEPA. This requirement comparability requirements or should is implemented in 40 CFR 51.436 tribal applicants be given the flexibility AGENCY: Environmental Protection through 51.440 (and 93.122 through in their funding proposals to describe Agency. 93.124), which establishes the so-called how their projects would or would not ACTION: Proposed rule. ‘‘build/no-build test.’’ This test requires be comparable and the reasons therefor? a demonstration that the ‘‘Action’’ SUMMARY: The United States The Secretary also is particularly scenario (representing the Environmental Protection Agency interested in whether revisions are implementation of the proposed (USEPA) proposes to approve Illinois’ needed in the selection criteria for this transportation plan/TIP) will result in request to grant an exemption for the program in § 371.30 in order to better lower motor vehicle emissions than the Chicago ozone nonattainment area from evaluate applications for funding. ‘‘Baseline’’ scenario (representing the the applicable oxides of nitrogen (NOX) AVAILABILITY OF COPIES OF THE implementation of the current transportation conformity requirements. PROPOSED REGULATIONS: The transportation plan/TIP). In addition, On June 20, 1995, Illinois submitted to proposed regulations can be accessed the ‘‘Action’’ scenario must result in the USEPA a State Implementation Plan through the RSA Bulletin Board System emissions lower than 1990 levels. (SIP) revision request for an exemption The November 24, 1993, final (BBS) by calling the following access under section 182(b)(1) of the Clean Air transportation conformity rule does not number: (202) 205–9694. If you Act (Act) from the conformity experience any difficulty in accessing require the build/no-build test and less- requirements for NOX for the Chicago than-1990 test for NOx as an ozone the BBS, please contact either John ozone nonattainment area, which is precursor in ozone nonattainment areas Chapman at (202) 205–9290 or Teresa classified as severe. The request is based where the Administrator determines Darter at (202) 205–8444, co-system on the urban airshed modeling (UAM) that additional reductions of NOx would operators (sysops), for assistance. For conducted for the attainment not contribute to attainment of the those individuals unable to access the demonstration for the Lake Michigan National Ambient Air Quality Standard BBS, copies of the proposed regulations Ozone Study (LMOS) modeling domain. (NAAQS) for ozone. Clean Air Act are available in regular print, large print, The rationale for this proposed approval section 176(c)(3)(A)(iii), which is the and computer diskette (WordPerfect 5.1 is set forth below; additional conformity provision requiring and ASCII formats) by calling (202) 205– information is available at the address contributions to emission reductions 9544. A limited number of copies in indicated below. braille are also available. before SIPs with emissions budgets can DATES: Comments on this proposed rule be approved, specifically references FOR FURTHER INFORMATION CONTACT: must be received on or before Clean Air Act section 182(b)(1). That Persons desiring to participate in the September 15, 1995. section requires submission of State meeting should contact Richard ADDRESSES: Copies of the documents plans that, among other things, provide Corbridge, 915 Second Avenue, Room relevant to this action are available for for specific annual reductions of volatile 2848, Seattle, Washington 98174–1099. inspection at the following address: (It organic compounds (VOCs) and NOx Telephone (206) 220–7840. Individuals is recommended that you telephone emissions ‘‘as necessary’’ to attain the who use a telecommunications device Patricia Morris at (312) 353–8656, before ozone standard by the applicable for the deaf (TDD) may call (206) 220– visiting the Region 5 office.) U.S. attainment date. Section 182(b)(1) 7849 for TDD services. Persons seeking Environmental Protection Agency, further states that its requirements do additional information regarding the Region 5, Air and Radiation Division, 77 not apply in the case of NOx for those proposed regulations should contact West Jackson Boulevard, Chicago, ozone nonattainment areas for which Barbara Sweeney, 600 Independence Illinois, 60604. USEPA determines that additional Avenue, S.W., Room 3225, Mary E. Written comments shall be sent to: J. reductions of NOx would not contribute Switzer Building, Washington, D.C. Elmer Bortzer, Chief, Regulation to ozone attainment. 20203–2531. Telephone (202) 205–9544. Development Section, Regulation For ozone nonattainment areas, the Individuals who wish additional Development Branch (AR–18J), U.S. process for submitting waiver requests information and use a Environmental Protection Agency, 77 and the criteria used to evaluate them telecommunications device for the deaf West Jackson Boulevard, Chicago, are explained in the December 1993 (TDD) may call the Federal Information Illinois, 60604. USEPA document ‘‘Guidelines for Relay Service (FIRS) at 1–800–877–8339 FOR FURTHER INFORMATION CONTACT: Determining the Applicability of between 8 a.m. and 8 p.m., Eastern time, Patricia Morris, Regulation Nitrogen Oxides Requirements Under Monday through Friday. Development Section, Regulation Section 182(f),’’ and the May 27, 1994, (Authority: 29 U.S.C. 701) Development Branch (AR–18J), U.S. and February 8, 1995, memoranda from 42492 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules John S. Seitz, Director of the Office of nonattainment area from NOx In making this determination under Air Quality Planning and Standards, to conformity requirements. The USEPA section 182(b)(1) that the NOx Regional Air Division Directors, titled intends to amend the transportation requirements do not apply, or may be ‘‘Section 182(f) NOx Exemptions— conformity rule to instead reference limited in the Lake Michigan area, the Revised Process and Criteria.’’ section 182(b)(1) as the means for USEPA has considered the national On July 13, 1994, the States of Illinois, exempting areas subject to section study of ozone precursors completed Indiana, Michigan, and Wisconsin (the 182(b)(1) from the transportation pursuant to section 185B of the Act. The States) submitted to the USEPA a conformity NOx requirements. After the USEPA has based its decision on the petition for an exemption from the USEPA amends the transportation demonstration and the supporting requirements of section 182(f) of the conformity rule to reference section information provided in the SIP revision Clean Air Act (Act). The States, acting 182(b)(1) for granting NOx waivers, the request. through the Lake Michigan Air Directors USEPA will take final action on today’s II. Summary of Submittal Consortium (LADCo), petitioned for an proposal. exemption from the Reasonably The June 20, 1995, SIP revision On June 20, 1995, the State of Illinois Available Control Technology (RACT) request from Illinois, has been submitted as a revision to the SIP, a and New Source Review (NSR) submitted to meet the requirements of a request for a waiver from the requirements for major stationary formal SIP revision submittal in transportation conformity NOx sources of NOx. The petition also asked accordance with the 182(b)(1) requirements. The submittal included for an exemption from the requirements. A public hearing on this the LMOS UAM modeling for the transportation and general conformity SIP revision request was held on July attainment demonstration for 3 ozone requirements for NOx in all ozone 17, 1995. The Chicago severe ozone episodes during 1991. The modeling nonattainment areas in the Region. nonattainment area includes the supported the request by documenting On March 6, 1995, the USEPA Counties of Cook, DuPage, Grundy (Aux that NOx reductions in the Chicago published a rulemaking proposing Sable and Gooselake Townships), Kane, nonattainment area would not approval of the NOx exemption petition Kendall (Oswego Township), Lake, contribute to attainment and, in fact, for the RACT, NSR and transportation McHenry, and Will. would be detrimental to the goal of and general conformity requirements. A Section 182(b)(1) requires submittal of reaching attainment. The Illinois number of comments were received on a plan revision that provides for Environmental Protection Agency the proposal. Several commenters reasonable further progress (RFP) (IEPA) discussed the NOx waiver in the argued that NOx exemptions are reductions for moderate and above context of the public hearing on the provided for in two separate parts of the ozone nonattainment areas. The plan attainment demonstration held on Act, in sections 182(b)(1) and 182(f), but must provide for specific annual December 21, 1994. To assure that the that the Act’s transportation conformity reductions in emissions of VOCs and public was fully informed and given provisions in section 176(c)(3) explicitly NOx as necessary to attain the national appropriate opportunity for comment, reference section 182(b)(1). In April primary ambient air quality standard for the IEPA committed to hold a further 1995, the USEPA entered into an ozone by the attainment date applicable hearing specifically to address the agreement to change the procedural under the Act. Further, the requirement section 182(b)(1) transportation shall not apply in the case of NOx for conformity waiver. This public hearing mechanism through which a NOx exemption from transportation those areas for which the Administrator was held on July 17, 1995. Pursuant to 40 CFR part 93, subpart conformity would be granted (EDF et al. determines that additional reductions of A, 40 CFR part 51, subpart T, the SIP v. USEPA, No. 94–1044, U.S. Court of NOx would not contribute to attainment. revision request seeks an exemption Appeals, D.C. Circuit). Instead of a In evaluating the 182(b) SIP revision from the transportation conformity petition under 182(f), transportation request, the USEPA considered whether additional NOx reductions would requirements for NOx in the Chicago conformity NOx exemptions for ozone ozone nonattainment area. The States’ nonattainment areas that are subject to contribute to attainment of the standard have utilized the UAM to demonstrate section 182(b)(1) now need to be in the Chicago area and also in the that reductions in NOx in the LMOS submitted as a SIP revision request. The downwind areas of the LMOS modeling modeling domain will not contribute to Chicago ozone nonattainment area is domain. As outlined in relevant USEPA attainment of the standard. To conduct classified as severe and, thus, is subject guidance, the use of photochemical grid the modeling analysis, the following to section 182(b)(1). modeling is the recommended approach steps were followed: (a) Emissions were The transportation conformity for testing the contribution of NOx projected to 1996 (the deadline for requirements are found at sections emission reductions to attainment of the implementation of the 15 percent 176(c) (2), (3), and (4). The conformity ozone standard. This approach reasonable further progress reduction) requirements apply on an areawide simulates conditions over the modeling and 2007 (the attainment deadline for basis in all nonattainment and domain that may be expected at the the severe nonattainment areas) from maintenance areas. The USEPA’s attainment deadline for three emission the 1990 base year, (b) it was assumed transportation conformity rule 1 and reduction scenarios: (1) Substantial VOC that a 40 percent VOC emission general conformity rule 2 currently reductions, (2) substantial NOx reduction beyond that achieved as a reference the section 182(f) exemption reductions, and (3) both VOC and NOx result of emission controls mandated by process as a means for exempting any reductions. If the areawide predicted the Act would be necessary to attain the maximum one-hour ozone ozone standard in the LMOS modeling 1 ‘‘Criteria and Procedures for Determining Conformity to State or Federal Implementation concentration for each day modeled domain, (c) a 40 percent NOx emission Plans of Transportation Plans, Programs, and under scenario (1) is less than or equal reduction in grid B (that portion of the Projects Funded or Approved under Title 23 U.S.C. to those from scenarios (2) and (3) for LMOS modeling domain that is of the Federal Transit Act’’ November 24, 1993 (58 the corresponding days, the test is essentially composed of the ozone FR 62188). 2 ‘‘Determining Conformity of General Federal passed and the section 182(f) NOx nonattainment areas within the Actions to State or Federal Implementation Plans; emissions reduction requirements modeling domain) beyond the projected Final Rule’’ November 30, 1993 (58 FR 63214). would not apply. emission levels was assumed for all Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42493 anthropogenic NOx emissions, (d) a 40 some uncertainty in the modeling VOC and NOx emission reductions percent VOC emission reduction and a results for 1996 and 2007. Some changes were found to produce different impacts 40 percent NOx reduction in grid B in modeling results may be expected if spatially. In and downwind of major beyond projected emission levels were area-specific and source category- urban areas, within the ozone assumed for all anthropogenic VOC and specific projection factors are used nonattainment areas, VOC reductions NOx emissions and (e), the ozone instead of the average factors used in were effective in lowering peak ozone modeling results for (b), (c), and (d) these analyses. These more detailed concentrations, while NOx emission were compared considering the projection factors will be used in the reductions resulted in increased peak modeled domain-wide peak ozone final demonstration of attainment for ozone concentrations. Farther concentrations and temporal and spatial the LMOS domain. These changes, downwind, within attainment areas, extent of modeled ozone concentrations however, are not expected to reverse the VOC emissions reductions became less above 120 parts per billion (ppb). directional signal of the modeling done effective for reducing ozone For all modeled days using 1996 and to date. Concluding that NOx reductions concentrations, while NOx emission 2007 conditions, domain-wide peak will not contribute to attainment in reductions were effective in lowering ozone concentrations for ‘‘VOC-only’’ Chicago and throughout the LMOS ozone concentrations. It must be noted, controls were found to be lower than or domain. however, that the magnitude of ozone equal to those for ‘‘NOx-only’’ controls Although ozone concentrations decreases farther downwind due to NOx or those for ‘‘VOC plus NOx’’ controls. modeled further downwind from the emission reductions was less than the In addition, consideration of daily peak urban source areas increase as a result magnitude of ozone increases in the ozone isopleth maps (these maps are of increased NOx point source ozone nonattainment areas as a result of included in the documentation of the emissions, this is not the case with the the same NOx emission reductions. section 182(b) SIP revision request) ground level NOx sources. LADCo and Analyses of ambient data by LMOS shows that the ‘‘VOC-only’’ control the States view the potential increase in contractors provided results which scenario leads to the smallest areas with outflow ozone concentrations with corroborated the modeling results. predicted peak ozone concentrations increasing NOx point source emissions These analyses identified areas of VOC- exceeding 120 ppb. to be marginal. More importantly, the and NOx-limited conditions (VOC- Additional sensitivity tests were SIP revision request demonstrates that limited conditions would imply a conducted for a 40 percent NOx additional reductions in NOx would not greater sensitivity of ozone emission reduction that was applied contribute to attainment of the ozone concentrations to changes in VOC only to point sources in Grid B for standard in the LMOS domain. These emissions; the reverse would be true for episode 2 and 1996 conditions for both results are believed to be consistent NOx-limited conditions) and tracked the an assumed NOx reduction alone and a with USEPA’s section 185B report to ozone and ozone precursor 40 percent reduction in both VOCs and Congress. concentrations in the urban plumes as NOx. These sensitivity tests compared to Therefore, based on its conformance they moved downwind. The analyses the scenarios with across the board with USEPA guidance, the USEPA indicated VOC-limited conditions in the anthropogenic NOx reductions believes the State of Illinois’ Chicago/Northwest Indiana and demonstrated that control of ground demonstration is adequate, and thus is Milwaukee areas and NOx-limited level NOx sources (such as approving the transportation conformity conditions further downwind. These transportation sources) did not waiver request. It is noted by LADCo, results imply that VOC controls in the contribute to attainment of the standard however, that subsequent modeling Chicago/Northwest Indiana and and in fact increased the domain wide analyses may lead to an ozone Milwaukee areas would be more peak ozone concentrations exceeding attainment plan which includes, for effective at reducing peak ozone 120 ppb and the number of hours that specified portions of the LMOS domain concentrations within the severe ozone exceeded 120 ppb. This result was more only, both NOx and VOC emission nonattainment areas. pronounced than with the point source controls. The modeling indicates that The consistency between the only NOx control. these NOx emission controls will most modeling results and the ambient data likely be limited to rural areas, but analysis results for all episodes with III. Analysis of Submittal would not be required in the Chicago joint data supports the view that the Review of the modeling results show nonattainment area and will also not UAM modeling system developed in the a very definite directional signal likely be applied to ground level LMOS may be used to investigate the indicating that application of NOx sources. relative merits of VOC versus NOx controls in the Chicago ozone Monitoring data such as emission controls. The UAM-V results nonattainment area would exacerbate concentrations of non-methane for all modeled episodes point to the peak ozone concentrations not only in hydrocarbons and NOx and derived/ benefits of VOC controls versus NOx the Chicago area but also in the LMOS monitored ozone production potentials controls in reducing the modeled modeling domain. The LMOS modeling of air parcels, collected for the urban domain peak ozone concentrations. domain includes northern Indiana, source areas during the 1991 field study For a more detailed analysis of the western Michigan and eastern support the approval of the NOx waiver. modeling analysis results, please see the Wisconsin. The States and LADCo have It is noted, however, that the primary August 22, 1994 ‘‘Technical Review of now completed the validation process basis for the approval of the NOx waiver a Four State Request for a Section 182(f) for the UAM modeling system to be is the modeling results submitted in Exemption from Oxides of Nitrogen used in the demonstration of attainment support of the waiver. The 1991 field (NOx) Reasonably Available Control for the LMOS modeling domain. data by themselves may not be an Technology (RACT) and New Source Therefore, documentation supporting adequate support for the waiver since Review (NSR) Requirements’’ the validity of the modeling results has these data are limited in nature and do memorandum contained in the docket been submitted with the SIP revision not present a complete picture of the for this action. request. impacts of NOx controls on LMOS The USEPA believes LADCo’s UAM It is noted that the use of simple, area- modeling domain peak ozone application has adequately met the wide emission projection factors raises concentrations. requirement to demonstrate that NOx 42494 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules controls within the Chicago ozone Union Electric Co. v. USEPA, 427 U.S. insecticide tralomethrin and its nonattainment area and throughout the 246, 256–66 (1976). metabolites cis-deltamethrin and trans- LMOS domain will not contribute, but Under Section 202 of the Unfunded deltamethrin in or on the raw instead will interfere with attainment of Mandates Reform Act of 1995 agricultural commodities (RACs) leaf the ozone standard. (‘‘Unfunded Mandates Act’’), signed lettuce, head lettuce, broccoli, and sunflowers. The proposed tolerances IV. Proposed Rulemaking Action and into law on March 22, 1995, the USEPA would establish the maximum Solicitation of Comments must prepare a budgetary impact statement to accompany any proposed permissible levels for residues of the Based on the submittal accompanying or final rule that includes a Federal insecticide in or on the commodities. the State’s SIP revision request, the mandate that may result in estimated The AgrEvo USA Co. requested these USEPA proposes to approve Illinois’ costs to State, local, or tribal tolerances pursuant to the Federal Food, request for an exemption from the governments in the aggregate; or to the Drug and Cosmetic Act (FFDCA). transportation conformity requirement private sector, of $100 million or more. DATES: Comments identified by the to provide annual reductions in NOx Under Section 205, the USEPA must docket number, [PP 6F3436/P624], must emissions as necessary to reach select the most cost-effective and least be received on or before September 15, attainment, for the Chicago ozone burdensome alternative that achieves 1995. nonattainment area. the objectives of the rule and is ADDRESSES Submit written comments by Public comments are solicited on the consistent with statutory requirements. requested SIP revision and on USEPA’s mail to: Public Response and Program Section 203 requires the USEPA to Resources Branch, Field Operations proposed rulemaking action. Comments establish a plan for informing and received by September 15, 1995, will be Division (7506C), Office of Pesticide advising any small governments that Programs, Environmental Protection considered in the development of may be significantly or uniquely USEPA’s final rule. Agency, 401 M St., SW., Washington, impacted by the rule. This action has been classified as a DC 20460. In person, bring comments The USEPA has determined that this Table 3 action for signature by the to: Public Docket, Rm. 1132, Crystal Regional Administrator under the action does not include a Federal Mall #2, 1921 Jefferson Davis Hwy., procedures published in the Federal mandate that may result in estimated Arlington, VA 22202. Information Register on January 19, 1989 (54 FR costs of $100 million or more to either submitted as a comment concerning this 2214–2225), as revised by a July 10, State, local, or tribal governments in the document may be claimed confidential 1995 memorandum from Mary Nichols, aggregate, or to the private sector. by marking any part or all of that Assistant Administrator for Air and This Federal action will relieve information as ‘‘Confidential Business Radiation. The Office of Management requirements otherwise imposed under Information’’ (CBI). Information so and Budget (OMB) has exempted this the Act, and hence does not impose any marked will not be disclosed except in regulatory action from Executive Order federal intergovernmental mandate, as accordance with procedures as set forth 12866 review. defined in section 101 of the Unfunded in 40 CFR part 2. A copy of the Nothing in this action should be Mandates Act. Accordingly, no comment that does not contain CBI construed as permitting, allowing or additional costs to State, local, or tribal must be submitted for inclusion in the establishing a precedent for any future governments, or the private sector, public record. Information not marked request for revision to any SIP. The result from this action. confidential will be included in the USEPA shall consider each request for List of Subjects in 40 CFR Part 52 public docket by EPA without prior revision to the SIP in light of specific notice. The public docket is available Environmental protection, Air technical, economic, and environmental for public inspection in Rm. 1132 at the pollution control, Conformity, factors and in relation to relevant above address, from 8 a.m. to 4:30 p.m., Intergovernmental relations, Oxides of statutory and regulatory requirements. Monday through Friday, excluding legal Under the Regulatory Flexibility Act, nitrogen, Ozone, Transportation holidays. 5 U.S.C. 600 et seq., USEPA must conformity. Comments and data may also be prepare a regulatory flexibility analysis Authority: 42 U.S.C. 7401–7671q. submitted electronically by sending assessing the impact of any proposed or Dated: August 4, 1995. electronic mail (e-mail) to: opp final rule on small entities. 5 U.S.C. 603 Corinne S. Wellish, [email protected]. Electronic and 604. Alternatively, USEPA may Acting Regional Administrator. comments must be submitted as an ASCII file avoiding the use of special certify that the rule will not have a [FR Doc. 95–20253 Filed 8–15–95; 8:45 am] significant economic impact on a characters and any form of encryption. BILLING CODE 6560±50±P substantial number of small entities. Comments and data will also be Small entities include small businesses, accepted on disks in WordPerfect in 5.1 small not-for-profit enterprises, and 40 CFR Part 180 file format or ASCII file format. All government entities with jurisdiction comments and data in electronic form over populations of less than 50,000. [PP 6F3436/P624; FRL 4968±8] must be identified by the docket This approval does not create any number, [PP 6F3436/P624]. No RIN 2070±AC18 new requirements. Therefore, I certify Confidential Business Information (CBI) that this action does not have a Tralomethrin; Pesticide Tolerances should be submitted through e-mail. significant impact on any small entities Electronic comments on this proposed affected. Moreover, due to the nature of AGENCY: Environmental Protection rule may be filed online at many Federal the Federal-State relationship under the Agency (EPA). Depository Libraries. Additional Act, preparation of the regulatory ACTION: Proposed rule. information on electronic submissions flexibility analysis would constitute can be found below in this document. Federal inquiry into the economic SUMMARY: This document proposes that FOR FURTHER INFORMATION CONTACT By reasonableness of the State action. The time-limited tolerances be established mail: George T. LaRocca, Registration Act forbids USEPA to base its actions with an expiration date of November 15, Division (7505C), Office of Pesticide concerning SIPs on such grounds. 1997, for the combined residues of the Programs, Environmental Protection Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42495 Agency, 401 M St., SW., Washington, Federal Register of September 18, 1985 submitted during the period of DC 20460. Office location and telephone (50 FR 37581). In addition, mutagenicity conditional registration. Such number: Second Floor, CM #2, 1900 studies were submitted and considered requirements included a sediment Jefferson Davis Hwy., Arlington, VA in support of these tolerances. Based on bioavailability and toxicity study and a 22202, (703)-305-6100; e mail: the studies submitted (an unscheduled small-plot runoff study that must be [email protected]. DNA synthesis study in rat primary submitted to the Agency by July 1, 1996. SUPPLEMENTARY INFORMATION: In the hepatocytes and a chromosome Due to the conditional status of the Federal Register of October 29, 1986 (51 aberration study in Chinese hamster registration, tolerances have been FR 39576), EPA issued a notice that ovary cells), tralomethrin is not established for tralomethrin and its AgrEvo USA Co. (formerly Roussel considered mutagenic. metabolites on a time-limited basis Uclaf of Paris, France; U.S. Agent: A dietary exposure/risk assessment (until November 15, 1997) on cotton and Hoechst-Roussel Agri-Vet Co.), Little was performed for tralomethrin using a soybeans to cover residues expected to Falls Center One, 2711 Centerville Rd., Reference Dose (RfD) of 0.0075 mg/kg/ be present from use during the period of Wilmington, DE 19808, had submitted bwt/day, based on a no-observed-effect conditional registration. To be pesticide petition (PP 6F3436) to EPA level (NOEL) of 0.75 mg/kg bwt/day and consistent with the conditional proposing to amend 40 CFR part 180 by an uncertainty factor of 100. The NOEL registration and extension on cotton and establishing a regulation pursuant to the was determined in a 2-year rat-feeding soybeans, the Agency is proposing to Federal Food, Drug and Cosmetic Act study. The endpoint effect of concern issue a conditional registration with an was decreased body weight. The (21 U.S.C. 346a and 371), to establish expiration date of November 15, 1996, Theoretical Maximum Residue tolerances for residues of the pyrethroid and establishing a time-limited Contribution (TMRC) from established tralomethrin [(S)-alpha-cyano-3- tolerance on broccoli and lettuce (leaf tolerances utilizes less than 1% of the phenoxybenzyl-(1R,3S)-2,2-dimethyl-3- and head lettuce) and sunflowers with RfD for the U.S. population and the [(RS)-1,2,2,2-tetrabromoethyl]- an expiration date of November 15, subpopulation most highly exposed, cyclopropane carboxylate] and its 1997, to cover residues expected to females (13+ years, nursing). metabolites cis-deltamethrin [(S)-alpha- result from use during the period of Establishing the new tolerances would conditional registration. cyano-3-phenoxybenzyl(1R,3R)-3-(2,2- utilize 3.7% of the RfD for the U.S. There are currently no actions dibromovinyl)-2,2- population and 5.1% for females (13+ pending against the continued dimethylcyclopropanecarboxylate] and years, nursing). If the new tolerances are registration of this chemical and its trans-deltamethrin [(S)-alpha-cyano-3- approved, the total percentages of RfD metabolites. The pesticide is considered phenoxybenzyl(1S,3R)-3-(2,2- utilized for the U.S. population and useful for the purposes for which it is dibromovinyl)-2,2- females (13+ years, nursing) are 3.8% sought. Based on the information and dimethylcyclopropanecarboxylate] in or and 5.2%, respectively. Generally data considered, the Agency has on the following raw agricultural speaking, EPA has no cause for concern determined that the tolerances commodities (RACs): broccoli at 0.50 if total residue contribution for established by amending 40 CFR part part per million (ppm); broccoli, published tolerances is less than the 180 would protect the public health. Chinese (gai lon), broccoli, and raab RfD. EPA concludes that the chronic Therefore, it is proposed that the (rapini) at 3.50 ppm; Brussels sprouts at dietary risk of deltamethrin, as tolerances be established as set forth 3.50 ppm; cabbage at 0.10 ppm; cabbage, estimated by the dietary risk below. Chinese (bok choy, napa) at 3.50 ppm; assessment, does not appear to be of Any person who has registered or cabbage, Chinese mustard (gai choy) at concern. submitted an application for registration 3.50 ppm; cauliflower at 3.50 ppm; The nature of the residues in lettuce, of a pesticide under the Federal collards at 3.50 ppm; kale at 3.50 ppm; broccoli, and sunflowers is adequately Insecticide, Fungicide, and Rodenticide kohlrabi at 3.50 ppm; lettuce, head at understood for the establishment of Act (FIFRA) as amended, which 0.50 ppm; lettuce, leaf at 2.50 ppm; tolerances. An adequate analytical contains the ingredient listed herein, mustard greens at 3.50 ppm; sunflower method, gas-liquid chromatography, is may request within 30 days after the seeds at 0.05 (N); and rape greens at 3.50 available for enforcement purposes. The publication of this document in the ppm. enforcement methodology has been Federal Register that this rulemaking On May 21, 1990, AgrEvo USA Co. submitted to the Food and Drug proposal be referred to an Advisory submitted a request to amend the Administration and published in the Committee in accordance with section subject petition by deleting the Pesticide Analytical Manual, Vol. II 408(e) of the Federal Food, Drug, and proposed tolerance for the entire (PAM II). Cosmetic Act (FFDCA). brassica (cole) leafy vegetable crop The Agency issued a conditional Interested persons are invited to group except broccoli. Tolerances were registration for tralomethrin for use on submit written comments on the proposed for broccoli at 0.50 ppm, leaf cotton with an expiration date of proposed regulation. Comments must lettuce at 3.0 ppm, and head lettuce at December 31, 1989 (see the Federal bear a notation indicating the document 0.50 ppm. On July 20, 1993, AgrEvo Register of September 18, 1985 (50 FR control number, [PP 6F3436/P624]. All USA Co. submitted a request to increase 37581)). The conditional registration written comments filed in response to the proposed tolerance level of the was subsequently amended and this petition will be available in the insecticide and its metabolites in or on extended to November 15, 1996 (see the Public Response and Program Resources the RAC head lettuce to 1.00 ppm. Federal Register of February 22, 1995 Branch at the above address from 8 a.m. The scientific data submitted in the (60 FR 9785)). The registration was to 4:30 p.m., Monday through Friday, petitions and other relevant material amended and extended to allow time for except legal holidays. have been evaluated. The toxicological submission and evaluation of additional A record has been established for this and metabolism data and analytical environmental effects data. In order to rulemaking under docket number [PP methods for enforcement purposes evaluate the effects of the pyrethroids 6F3436/R624] (including comments and considered in support of these on fish and aquatic organisms and its data submitted electronically as tolerances are discussed in detail in fate in the environment, additional data described below). A public version of related documents published in the were required to be collected and this record, including printed, paper 42496 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules versions of electronic comments, which PART 180Ð[AMENDED] March 6/7, 1996; Tuesday/Wednesday, does not include any information April 23/24, 1996. 1. The authority citation for part 180 claimed as CBI, is available for ADDRESSES: Meetings of the Advisory continues to read as follows: inspection from 8 a.m. to 4:30 p.m., Committee are currently scheduled to be Monday through Friday, excluding legal Authority: 21 U.S.C. 346a and 371. held beginning at 9:00 a.m. at the holidays. The public record is located in 2. In 180.422, by revising the table Department of Transportation, Room Room 1132 of the Public Response and therein, to read as follows: 2230 Nassif Building, 400 Seventh Program Resources Branch, Field Street, SW, Washington D.C. § 180.422 Tralomethrin; tolerances for Operations Division (7506C), Office of FOR FURTHER INFORMATION CONTACT: Jere residues. Pesticide Programs, Environmental Medlin, Office of Vehicle Safety Protection Agency, Crystal Mall #2, * * * * * Standards, NHTSA (Phone: 202–366– 1921 Jefferson Davis Highway, 5276; FAX: 202–366–4329). Mediator: Arlington, VA. Parts per Commodity million Lynn Sylvester, Federal Mediation and Electronic comments can be sent Conciliation Service, (phone: 202–606– directly to EPA at: Broccoli ...... 0.50 9140; FAX: 202–606–3679). opp [email protected] Cottonseed ...... 0.02 SUPPLEMENTARY INFORMATION: The listed Lettuce, head ...... 1.00 meetings of the Advisory Committee are Electronic comments must be Lettuce, leaf ...... 3.00 for the purposes of negotiating the submitted as an ASCII file avoiding the Soybeans ...... 0.05 Sunflower seed ...... 0.05 contents of the preamble and a proposed use of special characters and any form amendment to 49 CFR 571.108 Motor of encryption. Vehicle Safety Standard No. 108 Lamps, The official record for this [FR Doc. 95–20011 Filed 8–15–95; 8:45 am] Reflective Devices, and Associated rulemaking, as well as the public BILLING CODE 6560±50±F Equipment that will be issued by the version, as described above will be kept National Highway Traffic Safety in paper form. Accordingly, EPA will Administration to develop transfer all comments received DEPARTMENT OF TRANSPORTATION recommended specifications for adding electronically into printed, paper form a visual/optical aimability requirement as they are received and will place the National Highway Traffic Safety for the lower beam headlamp. This paper copies in the official rulemaking Administration would facilitate visual aimability of record which will also include all headlamps and, should this affect the comments submitted directly in writing. 49 CFR Part 571 lower beam pattern, it might be the basis The official rulemaking record is the [Docket No. 95±28; Notice 3] for a world-wide lower beam pattern. paper record maintained at the address At its first meeting on July 25, 1995, in ‘‘ADDRESSES’’ at the beginning of RIN 2127±AF73 the Committee adopted the schedule for this document. its meetings for the remainder of 1995 The Office of Management and Budget Lamps, Reflective Devices and as set forth above. It also adopted a has exempted this document from the Associated Equipment; Schedule of tentative schedule for its first three requirement of review pursuant to Advisory Committee Public Meetings meetings in 1996, as shown above, subject to confirmation at its November Executive Order 12866. AGENCY: National Highway Traffic meeting. If there are any changes or Safety Administration (NHTSA); DOT. Pursuant to the requirements of the additions, NHTSA will publish a further Regulatory Flexibility Act (Pub. L. 96- ACTION: Notice; Schedule of Advisory notice. 354, 94 Stat. 1164, 5 U.S.C. 601-612), Committee Meetings. The meetings are open to the public. the Administrator has determined that regulations establishing new tolerances SUMMARY: The National Highway Traffic Issued: August 11, 1995. or raising tolerance levels or Safety Administration gives notice, as Barry Felrice, establishing exemptions from tolerance required by the Federal Advisory Associate Administrator for Safety requirements do not have a significant Committee Act (Pub. L. 92–463) of the Performance Standards. economic impact on a substantial scheduled dates for the meetings of its [FR Doc. 95–20311 Filed 8–15–95; 8:45 am] number of small entities. A certification Advisory Committee on Regulatory BILLING CODE 4910±59±P statement to this effect was published in Negotiation (concerning the the Federal Register of May 4, 1981 (46 improvement of headlamp aimability FR 24950). performance and visual/optical 49 CFR Part 575 headlamp aiming) during the remainder [Docket No. 94±30, Notice 5] List of Subjects in 40 CFR Part 180 of 1995. The Committee has also adopted a tentative schedule for its first RIN 2127±AF17 Environmental protection, three meetings in 1996, as indicated Administrative practice and procedure, below, subject to confirmation or Consumer Information Regulations: Agricultural commodities, Pesticides modification at its November meeting. If Uniform Tire Quality Grading and pests, Reporting and recordkeeping there are changes or additions to this Standards requirements. schedule, NHTSA will publish a notice AGENCY: National Highway Traffic Dated: July 27, 1995. informing the public of the changes. Safety Administration (NHTSA), Stephen L. Johnson, DATES: Wednesday/Thursday, Department of Transportation (DOT). Director, Registration Division, Office of September 6/7, 1995; Wednesday/ ACTION: Extension of comment period. Pesticide Programs. Thursday, October 18/19, 1995; Tuesday/Wednesday, November 28/29, SUMMARY: This notice grants a request to Therefore, it is proposed that 40 CFR 1995; Wednesday/Thursday, January extend the comment period on an part 180 be amended as follows: 17/18, 1996; Wednesday/Thursday, agency proposal to amend the Uniform Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42497 Tire Quality Grading Standards to The amendments would change the (NTDRA) petitioned the agency to change the treadwear grading treadwear grading procedures, add an extend the comment period an procedures, add an additional traction ‘‘AA’’ rating to the traction grade, and additional 2 weeks from the present grade, and to substitute a fuel economy substitute a fuel economy rating for the closing date of August 14, 1995. NTDRA grade for the current temperature current temperature resistance rating. stated that the public meeting revealed resistance grade. Subsequent to the The agency believed that the proposed ‘‘considerable disagreement * ** publication of the proposal, NHTSA fuel economy rating, based on reduced within the tire industry on a wide range extended the comment period to August tire rolling resistance, would be more of issues’’ and, like MBS and the others, 14, 1995 and held a public meeting on meaningful to consumers than the asserted that the meeting participants temperature resistance rating. the proposals at the request of several needed an opportunity to review the The NPRM specified a comment tire manufacturers. In response to a data presented by the other attendees. petition, the agency is further extending closing date of July 10, 1995. However, the comment period from August 14, the agency subsequently received After thorough review of the NTDRA 1995 to September 1, 1995. several requests to extend the comment petition and the other requests for an DATES: Comments on the May 24, 1995 period and to hold a public hearing on extension of the comment period, proposal must be received by the agency the issues involved in the proposed NHTSA agrees that additional time for on or before close of business, rulemaking. In order to provide ample commenting on the May 24, 1995 NPRM September 1, 1995. opportunity for interested parties to is desirable. Such extension will express their views on the UTQGS ADDRESSES: Comments should refer to provide interested parties the proposals, NHTSA extended the Docket No. 94–30, Notice 2, and be opportunity to review the record of the comment period until August 14, 1995 public meeting and submit additional submitted to the Docket Section, and granted the requests for a public NHTSA, 400 Seventh Street, SW, Room matters for the agency’s consideration in meeting (60 FR 34961, July 5, 1995). The this rulemaking action. Accordingly, the 5109, Washington, DC 20590. Docket agency held the public meeting on July agency believes that there is good cause hours are from 9:30 a.m. to 4:00 p.m., 28, 1995 at the DOT headquarters for the further extension of the comment Monday through Friday. Telephone building, 400 Seventh Street, (202) 366–4949. Washington, DC 20590. Twenty-nine period and that this extension is FOR FURTHER INFORMATION CONTACT: Mr. persons testified and additional written consistent with the public interest. Orron Kee, Office of Market Incentives, testimony was submitted for inclusion Based on the above considerations, the Office of the Associate Administrator for in the record. At the meeting, agency is extending the comment Safety Performance Standards, NHTSA, Multinational Business Services, Inc. closing date on the May 24, 1995, NPRM 400 Seventh Street, SW, Room 5313, (MBS), among others, requested an until September 1, 1995. Washington, DC 20590, telephone (202) additional extension of the comment Issued on: August 11, 1995. 366–4936. period to provide participants an Barry Felrice, SUPPLEMENTARY INFORMATION: On May opportunity to review the record of the 24, 1995, NHTSA published a Notice of proceedings and submit additional Associate Administrator for Safety Performance Standards. Proposed Rulemaking (NPRM) to amend comments, if desired. the Uniform Tire Quality Grading On August 3, 1995, the National Tire [FR Doc. 95–20344 Filed 8–11–95; 4:54 pm] Standards (UTQGS), 49 CFR 575.104. Dealers & Retreaders Association BILLING CODE 4910±59±P 42498 Notices Federal Register Vol. 60, No. 158 Wednesday, August 16, 1995 This section of the FEDERAL REGISTER quality of the human environment. pests or that there is reason to believe contains documents other than rules or Based on its findings of no significant are plant pests (regulated articles). A proposed rules that are applicable to the impact, the Animal and Plant Health permit must be obtained or a public. Notices of hearings and investigations, Inspection Service has determined that notification acknowledged before a committee meetings, agency decisions and environmental impact statements need regulated article may be introduced into rulings, delegations of authority, filing of petitions and applications and agency not be prepared. the United States. The regulations set statements of organization and functions are ADDRESSES: Copies of the environmental forth the permit application examples of documents appearing in this assessments and findings of no requirements and the notification section. significant impact are available for procedures for the importation, public inspection at USDA, room 1141, interstate movement, and release into South Building, 14th Street and the environment of a regulated article. DEPARTMENT OF AGRICULTURE Independence Avenue SW., In the course of reviewing each permit Washington, DC, between 8 a.m. and application, APHIS assessed the impact Animal and Plant Health Inspection 4:30 p.m., Monday through Friday, on the environment that releasing the Service except holidays. Persons wishing to organisms under the conditions [Docket No. 95±058±1] inspect those documents are requested described in the permit application to call ahead on (202) 690–2817 to would have. APHIS has issued permits Availability of Environmental facilitate entry into the reading room. for the field testing of the organisms Assessments and Findings of No FOR FURTHER INFORMATION CONTACT: Dr. listed below after concluding that the Significant Impact Arnold Foudin, Deputy Director, organisms will not have a significant AGENCY: Animal and Plant Health Biotechnology Permits, BBEP, APHIS, impact on the quality of the human Inspection Service, USDA. Suite 5B05, 4700 River Road Unit 147, environment. The environmental Riverdale, MD 20737–1237; (301) 734– assessments and findings of no ACTION: Notice. 7612. For copies of the environmental significant impact, which are based on SUMMARY: We are advising the public assessments and findings of no data submitted by the applicants and on that two environmental assessments and significant impact, write to Mr. Clayton a review of other relevant literature, findings of no significant impact have Givens at the same address. Please refer provide the public with documentation been prepared by the Animal and Plant to the permit numbers listed below of APHIS’ review and analysis of the Health Inspection Service relative to the when ordering documents. environmental impacts associated with issuance of permits to allow the field SUPPLEMENTARY INFORMATION: The conducting the field tests. testing of genetically engineered regulations in 7 CFR part 340 (referred Environmental assessments and organisms. The environmental to below as the regulations) regulate the findings of no significant impact have assessments provide a basis for our introduction (importation, interstate been prepared by APHIS relative to the conclusion that the field testing of the movement, and release into the issuance of permits to allow the field genetically engineered organisms will environment) of genetically engineered testing of the following genetically not have a significant impact on the organisms and products that are plant engineered organisms: Permit no. Permittee Date issued Organisms Field test location 95±041±01 R.J. Reynolds Tobacco Company ... 6±09±95 Tobacco mosaic virus genetically North Carolina engineered to express proteins of pharmaceutical interest. 95±130±01 University of Wisconsin ...... 7±13±95 Pseudomonas syringae pv. syringae Wisconsin genetically engineered for de- creased virulence. The environmental assessments and Done in Washington, DC, this 9th day of Forest Service findings of no significant impact have August 1995. been prepared in accordance with: (1) Lonnie J. King, Southwest Oregon Provincial The National Environmental Policy Act Administrator, Animal and Plant Health Interagency Executive Committee of 1969 (NEPA)(42 U.S.C. 4321 et seq.), Inspection Service. (PIEC), Advisory Committee (2) Regulations of the Council on [FR Doc. 95–20163 Filed 8–15–95; 8:45 am] AGENCY: Forest Service, USDA. Environmental Quality for BILLING CODE 3410±34±P Implementing the Procedural Provisions ACTION: Notice of meeting. of NEPA (40 CFR parts 1500–1508), (3) USDA Regulations Implementing NEPA SUMMARY: The Southwest Oregon PIEC (7 CFR part 1b), and (4) APHIS’ NEPA Advisory Committee will meet on Implementing Procedures (7 CFR part August 31, 1995 at Jot’s Resort in Gold 372; 60 FR 6000–6005, February 1, Beach, Oregon. The meeting will begin 1995). at 8 a.m. and continue until 4 p.m. Agenda items to be covered include: (1) Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42499 Proposed charter for a research and Burden: 17,600 hours. Form Number(s): BE–93. monitoring working group; (2) Local Number of Respondents: 4,400. Agency Approval Number: 0608– area issue presentation; (3) Proposal for Avg Hours Per Response: 4 hours. 0017. next actions on standards and guides, Needs and Uses: The survey collects Type of Request: Extension of a monitoring, and fuel, insect and disease quarterly sample data on transactions currently approved collection. issues; (4) Update on Appelate fuels and positions between foreign–owned Burden: 2,200 hours. strategy; (5) Public forum. All Province U.S. business enterprises and their Number of Respondents: 550. Advisory committee meetings are open foreign parents. Universe estimates are Avg Hours Per Response: 4 hours. to the public, interested citizens are developed from the reported sample Needs and Uses: The survey will encouraged to attend. data. The data are needed for compiling obtain sample data on royalties, license FOR FURTHER INFORMATION CONTACT: the U.S. balance of payments accounts, fees, and other receipts and payments Direct questions regarding this meeting the international investment position of for intangible rights between U.S. and to Chuck Anderson, Province Advisory the United States, and the national unaffiliated foreign persons. The Committee staff, USDA, Rogue River income and product accounts. The data information gathered is needed, among National Forest, PO Box 520, Medford, are also needed to measure the amount other purposes, to support U.S. trade Oregon 97501, 503–858–2322. of foreign direct investment in the policy initiatives, including trade Dated: August 9, 1995. United States, monitor changes in such negotiations, and to compile the U.S. investment, and assess its impact on the balance of payments and the national James T. Gladen, U.S. and foreign economies, and, based income and product accounts. Forest Supervisor. upon this assessment, make informed Affected Public: U.S. businesses or [FR Doc. 95–20285 Filed 8–15–95; 8:45 am] policy decisions regarding foreign direct other institutions receiving royalties and BILLING CODE 3410±11±M investment in the United States. license fees from, or paying royalties Affected Public: Businesses or other and license fees to, unaffiliated foreign for–profit institutions. persons. CONGRESSIONAL BUDGET OFFICE Frequency: On quarterly. Frequency: Annually. Respondent’s Obligation: Mandatory. Respondent’s Obligation: Mandatory. Notice of Transmittal of Sequestration OMB Desk Officer: Paul Bugg, (202) OMB Desk Officer: Paul Bugg, (202) Update Report for Fiscal Year 1996 to 395–3093. 395–3093. Congress and the Office of Management and Budget Agency: Bureau of Economic Copies of the above information Analysis. collection proposals can be obtained by Pursuant to Section 254(b) of the Title: Annual Survey of Construction, calling or writing Gerald Tache´, DOC Balanced Budget and Emergency Deficit Engineering, Architectural, and Mining Forms Clearance Officer, (202) 482– Control Act of 1985 (2 U.S.C. 904(b)), Services Provided by U.S. Firms to 3271, Department of Commerce, Room the Congressional Budget Office hereby Unaffiliated Foreign Persons. 5312, 14th and Constitution Avenue, reports that it has submitted its Form Number(s): BE–47. NW, Washington, DC 20230. Sequestration Update Report for Fiscal Agency Approval Number: 0608– Written comments and Year 1996 to the House of 0015. recommendations for the proposed Representatives, the Senate, and the Type of Request: Extension of a information collections should be sent Office of Management and Budget. currently approved collection. to Paul Bugg, OMB Desk Officer, Room Stanley L. Greigg, Burden: 1675 hours. 10201, New Executive Office Building, Director, Office of Intergovernmental Number of Respondents: 135. Washington, DC 20503. Relations, Congressional Budget Office. Avg Hours Per Response: 5 hours. Dated: August 10, 1995. [FR Doc. 95–20326 Filed 8–15–95; 8:45 am] Needs and Uses: The survey will Gerald Tache´, BILLING CODE 95±0702±M obtain sample data on U.S. sales to unaffiliated foreign persons of Departmental Forms Clearance Officer, Office construction, engineering, architectural, of Management and Organization. [FR Doc. 95–20195 Filed 8–15–95; 8:45 am] DEPARTMENT OF COMMERCE and mining services. The information gathered is needed, among other BILLING CODE 3510±CW±F Agency Forms Under Review by the purposes, to support U.S. trade policy Office of Management and Budget initiatives, including trade negotiations, and to compile the U.S. balance of Agency Forms Under Review by the DOC has submitted to the Office of payments and the national income and Office of Management and Budget Management and Budget (OMB) for product accounts. DOC has submitted to the Office of clearance the following proposals for Affected Public: U.S. businesses or collection of information under the Management and Budget (OMB) for other for–profit institutions providing clearance the following proposals for provisions of the Paperwork Reduction construction, engineering, architectural, Act (44 U.S.C. chapter 35). collection of information under the and mining services to unaffiliated provisions of the Paperwork Reduction Agency: Bureau of Economic foreign persons. Analysis. Act (44 U.S.C. chapter 35). Frequency: Annually. Agency: Bureau of the Census. Title: Transactions of U.S. Affiliate, Respondent’s Obligation: Mandatory. Except a U.S. Banking Affiliate, with Title: Current Industrial Reports OMB Desk Officer: Paul Bugg, (202) (Wave II Mandatory). Foreign Parent; and Transactions of U.S. 395–3093. Banking Affiliate with Foreign Parent. Form Number(s): Various. Form Number(s): BE–605 and BE–605 Agency: Bureau of Economic Agency Approval Number: 0607– Bank. Analysis. 0395. Agency Approval Number: 0608– Title: Annual Survey of Royalties, Type of Request: Revision of a 0009. License Fees, and Other Receipts and currently approved collection. Type of Request: Extension of a Payments for Intangible Rights between Burden: 28,102 hours. currently approved collection. U.S. and Unaffiliated Foreign Persons. Number of Respondents: 21,407. 42500 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Avg Hours Per Response: 1 hour 19 calling or writing Gerald Tache´, DOC Commerce, 14th & Pennsylvania minutes. Forms Clearance Officer, (202) 482– Avenue, NW, Washington, DC 20230. Needs and Uses: The Current 3271, Department of Commerce, Room Dated: August 9, 1995. Industrial Reports (CIR) program is a 5312, 14th and Constitution Avenue, John J. Da Ponte, Jr., series of monthly, quarterly, and annual NW, Washington, DC 20230. Executive Secretary. surveys which provide key measures of Written comments and [FR Doc. 95–20301 Filed 8–15–95; 8:45 am] production, shipments, and/or recommendations for the proposed BILLING CODE 3510±DS±P inventories on a national basis for information collections should be sent selected manufactured products. to Maria Gonzalez, OMB Desk Officer, Government agencies, business firms, Room 10201, New Executive Office International Trade Administration trade associations, and private research Building, Washington, DC 20503. and consulting organizations use these Dated: August 11, 1995. Initiation of Antidumping and data to make trade policy, production, Countervailing Duty Administrative Gerald Tache´, and investment decisions. Due to the Reviews and Requests for Revocation large number of surveys conducted in Departmental Forms Clearance Officer, Office in Part the CIR program, Census has divided of Management and Organization. them into 3 waves, each cleared for [FR Doc. 95–20303 Filed 8–15–95; 8:45 am] AGENCY: Import Administration, three years. Each wave contains two BILLING CODE 3510±07±F International Trade Administration, separate clearance packages one for Department of Commerce. mandatory reports and one for ACTION: Notice of Initiation of Foreign-Trade Zones Board voluntary. The waves are staggered so Antidumping and Countervailing Duty that only one of the three waves is [Docket A(32b1)-15±95) Administrative Reviews and Request for submitted each year. Revocation in Part. Affected Public: Businesses or other Foreign-Trade Zone 18, San Jose, CA SUMMARY: The Department of Commerce for–profit institutions. Request for Manufacturing Authority Frequency: Quarterly and annually. Silicon Valley Solutions, Inc. (Personal (the Department) has received requests Respondent’s Obligation: Mandatory. Computers) San Jose, CA to conduct administrative reviews of OMB Desk Officer: Maria Gonzalez, various antidumping and countervailing (202) 395–7313. An application has been submitted to duty orders and findings with July the Foreign-Trade Zones Board (the anniversary dates. In accordance with Agency: Bureau of the Census. Board) by San Jose Distribution the Department’s regulations, we are Title: Current Industrial Reports Services, operator of FTZ 18, pursuant initiating those administrative reviews. (Wave II Voluntary). Form Number(s): Various. to § 400.32(b)(1)(ii) of the Board’s The Department also received a request Agency Approval Number: 0607– regulations (15 CFR part 400), to revoke an antidumping duty order in 0206. requesting authority on behalf of Silicon part. Type of Request: Revision of a Valley Solutions, Inc. (SVS), to EFFECTIVE DATE: August 16, 1995. currently approved collection. manufacture personal computers for FOR FURTHER INFORMATION CONTACT: Burden: 4,054 hours. export within FTZ 18. It was formally Holly A. Kuga, Office of Antidumping Number of Respondents: 2,146. filed on August 8, 1995. Compliance, Import Administration, Avg Hours Per Response: 33 minutes. SVS is planning to assemble personal International Trade Administration, Needs and Uses: The Current computers using certain components U.S. Department of Commerce, 14th Industrial Reports (CIR) program is a that would be sourced abroad, including Street and Constitution Avenue NW., series of monthly, quarterly, and annual monitors, keyboards, mouses, floppy Washington, DC 20230, telephone: (202) surveys which provide key measures of disc drives, and power supplies. Of 482–4737. production, shipments, and/or these, only monitors (HTSUS SUPPLEMENTARY INFORMATION: inventories on a national basis for 8471.92.32) and mouses (HTSUS selected manufactured products. 8471.92.90) are dutiable (3.7%). Zone Background Government agencies, business firms, procedures would exempt the company The Department has received timely trade associations, and private research from Customs duty payments on the requests, in accordance with 19 CFR and consulting organizations use these foreign products used in its exports. The 353.22(a) and 355.22(a) (1994), for data to make trade policy, production, request indicates that the savings from administrative reviews of various and investment decisions. Due to the zone procedures would help encourage antidumping and countervailing duty large number of surveys conducted in the proposed export activity. orders and findings with July the CIR program, Census has divided Public comment is invited from anniversary dates. The Department also them into 3 waves, each cleared for interested parties. Submissions (original received a timely request to revoke in three years. Each wave contains two and 3 copies) shall be addressed to the part the antidumping duty orders on separate clearance packages one for Board’s Executive Secretary at the silicon metal from Brazil. mandatory reports and one for address below. The closing period for voluntary. The waves are staggered so their receipt is [30 days from date of Initiation of Reviews that only one of the three waves is publication]. Rebuttal comments in In accordance with sections 19 CFR submitted each year. response to material submitted during 353.22(c) and 355.22(c), we are Affected Public: Businesses or other the foregoing period may be submitted initiating administrative reviews of the for–profit institutions. during the subsequent 15-day period (to following antidumping and Frequency: Quarterly and annually. October 6, 1995). countervailing duty orders and findings. Respondent’s Obligation: Voluntary. A copy of the request will be available The Department is not initiating an OMB Desk Officer: Maria Gonzalez, for public inspection at the following administrative review of any exporters (202) 395–7313. location: Office of the Executive and/or producers who were not named Copies of the above information Secretary, Foreign-Trade Zones Board, in a review request because such collection proposals can be obtained by Room 3716, U.S. Department of exporters and/or producers were not Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42501 specified as required under section to issue the final results of these reviews 353.22(a) (19 CFR 353.22(a)). We intend not later than July 31, 1996. Period to be reviewed Antidumping duty proceedings: Brazil: Silicon Metal, A±351±806 Companhia Brasileira Carbureto de Calcio ...... 07/01/94±06/30/95 Camargo Correa Metais S.A. Eletrosilex Belo Horizonte Companhia Ferroligas Minas Gerais-Minasligas RIMA Eletrometalurgica S.A. Italy: Large Power Transformers 1, A±475±031 Tamini Costruzioni ...... 06/01/94±05/31/95 Japan: Certain Forklift Trucks 1, A±588±703 Nissan Motor Company ...... 06/01/94±05/31/95 Toyota Motor Corporation Toyo Umpanki Company, Ltd High Power Microwave Amplifiers and Components Thereof, A±588±005 NEC Corporation ...... 07/01/94±06/30/95 Professional Electric Cutting Tools, A±588±823 Makita Corporation ...... 07/01/94±06/30/95 The People's Republic of China: Sparklers 2, A±570±804 Guangxi Native Produce I/E Corporation ...... 06/01/94±05/31/95 Behai Fireworks & Firecrackers Branch All other exporters of sparklers from the PRC are conditionally covered by this review. Sebacic Acid, A±570±825 Sinochem Jiangsu I/E Corp ...... 01/05/94±06/30/95 Tianjin Chemicals I/E Corp. Guangdong Chemicals I/E Corp. Sinochem Int'l Chemicals Co. All other exporters of sebacic acid from the PRC are conditionally covered by this review. Tapered roller bearings and parts thereof 1, A±570±601 Harbin Bearing Factory ...... 06/01/94±05/31/95 Luoyang Bearing Factory Wafangdian Bearing Factory Shanghai General Bearing Co., Ltd Shanghai Rolling Bearing Factory. Xiangyang Bearing Factory Chengdu General Bearing Factory Hailin Bearing Factory Guiyang Bearing Factory Haihong Bearing Factory Lanzhou Bearing Factory Xibei Bearing Factory Changzhi Bearing Factory Jining Bearing Factory Shenyang Bearing Factory Gongzhuling Bearing Factory Jiamusi Bearing Factory Hangzhou Bearing Factory Jiangxi Bearing Factory Liangshan Bearing Factory ...... 06/01/94±05/31/95 42502 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Period to be reviewed Yantai Bearing Factory Northwest Bearing Plant Huangshi Bearing Factory Guangxi Bearing Factory Chongqing Bearing Factory Yunnan Bearing Factory Baoji Bearing Factory Xiangtan Bearing Factory Shaoguan Bearing Factory Xinjiang Bearing Factory The Second Bearing Factory of Xuzhou Yuxi Bearing Factory Changde Bearing Factory Chengdu Bearing Company Handan Bearing Factory Xingcheng Bearing Factory Premier Bearing & Equip., Ltd. Chin Jun Industrial Ltd. China National Machinery & Equipment Import & Export Corporation (CMEC) Henan Machinery & Equipment Import & Export Corporation Lianoning Machinery & Equipment Import and Export Corporation Jilin Machinery Import & Export Corporation Guizhou Machinery Import & Export Corporation Kenwa Shipping Co., Ltd. Far East Enterprising Co. (H.K.) Ltd. Far East Enterprising (H.K.) Co. Pantainer Express Line Co. Intermodal Systems Ltd. China Ningbo Int'l Economic & Technical Cooperation Corp. China Ningbo Cixi Import/Export Corp. Ningbo Xing Li Bearing Co., Ltd. Ningbo Yinxian Import/Export Corp. China Ningbo Yinxian Import/Export Corp. Hong Kong China National Machinery/Equipment Corp...... 06/01/94±05/31/95 China National Machinery Import/Export Corporation China National Machinery and Equipment Corp./Hunan Co., Ltd. Santoh HK Ltd. Huuzhou Import and Export Corp. Ideal Consolidators Ltd. Cargo Services Far East Ltd. China Resources Transportation & Godown Co., Ltd. China Travel Service (HK) Ltd. Fortune Network Ltd. China Jiangsu Technical Import/Export Corp. China Jiangsu Machinery Import and Export (Group) Corp. Shanghai Machinery & Equipment Import & Export Corp. Shanghai Machinery Import/Export Corp. Hubei Provincial Machinery Import & Export Corporation Kaitone Shipping Co., Ltd. Profit Cargo Service Co., Ltd. United Cargo Management, Inc. Zhejang Expanded Bearing Co. (China) Zhejang Expanded Bearing Co. (HK) Zhejang Yongtong Company (China) Zhejang Yongtong Company (HK) Zhejang Machinery Import/Export Corp. Wafangdian Bearing Industry Co. Heilongjang Machinery Import/Export Corp. Shandong Machinery Import/Export Corp. Wafangdian Hyatt Bearing Manufacturing Co., Ltd. China National Bearing Joint Export Corp. PFL Pacific Forwarding Ltd. Sui Jun International Ltd. Wah Shun Shipping Co., Ltd. Aempac-System, Inc. Xinguang Ind. Prod. Import/Export Corp. of Sichuan Province Sunway Line, Inc. Trans-Ocean Bridge Services, Ltd...... 06/01/94±05/31/95 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42503 Period to be reviewed Scanwell Container Line Ltd. Scanwell Consolidators & Forwarders Ltd. China Machine-Building Int'l Corp. Hyaline Shipping (HK) Co., Ltd. Long Trend Ltd. China National Automotive Industry Guizhou Import/Export Corp. Waiwell Shipping Ltd. Special Line Ltd. YK Shipping International, Inc. Blue Anchor Line Co. Onan Shipping Ltd. Shanghai Bearing Corporation Wing Tung Wei (China) Ltd. China Merchants S & E Co., Ltd. Zhejiang Huangli Bearing Co., Ltd. China Ningbo International Economic & Technical Cooperation Corp. Ningbo Free Trade Zone China Nationan Machinery I/E Corp. China-East Resources Int'l Distribution Services Ltd. Inteks Inc. N.V.O.C.C. Shaanxi Machinery & Equipment I/E Corp. United Cargo Management Inc., Dalian Office Xiang Fan Int'l Trade Corp. China Tiancheng Jiangsu Corp. Nanjing, China China Tiancheng Jiangsu Corp. Shanghai, China Zhejiang East Sea Bearing Co. Shanghai Pacific Machinery I/E Corp. Mayer Shipping Ltd. Wholelucks Industrial Lim. Peko Incorporation O/B Manfred Development Co., (HK) Asia Stone Company Limited Asia (USA) Inc. Xiamen Special Economic Zone Trade Co. Ltd. China Machinery Equipment I/E Wuxi Co. Ltd. Xiang Fan Int'l Trade Corp. SEC Line Ltd. Jebsin Shipping Ltd. Heika Express Int'l Ltd. J.P. Freight, Inc. Brilliant Ocean Ltd. Corp. (USA) Shaanxi Machinery & Equipment I/E Corp. Transunion Int'l Company Roson Express Int'l Co., Ltd. Streamline Shippers Association Wholelucks Industrial Lim. Laconic Freight Forwarding Co., Ltd. Mitrans Shipping Co., Ltd. Distribution Services Ltd. The Ultimate Freight Management (H.K.) Ltd. Indeal Consolidators Ltd. All exporters of TRBs from the People's Republic of China are conditionally covered by this review. Romania: Tapered roller bearings and parts thereof, A±485±602 S.C. Rulmentul S.A. Brasov 1 ...... 06/01/94±05/31/95 S.C. Rulmenti Alexandria S.A.1 S.C. Rulmenti S.A. Slatina 1 S.C. Rulmenti-Suceava S.A. Suceava 1 S.C. Rulmenti S.A. Birlad 1 S.C. Rulmenti Grei S.A. Ploiesti 1 Tehno Forest Import Export 1 All other exporters of TRBs from Romania are conditionally covered by this review. 1 Inadvertently omitted from previous initiation notice. 2 The July 14, 1995 (60 FR 36260) initiation notice covering sparklers from the PRC should have read as stated above. Countervailing Duty Proceedings accordance with 19 CFR 353.34(b) and U.S.C. 1675(a)) and 19 CFR 353.22(c)(1) 355.34(b). and 355.22(c)(1). None. These initiations and this notice are Interested parties must submit in accordance with section 751(a) of the applications for disclosure under Tariff Act of 1930, as amended (19 administrative protective orders in 42504 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Dated: August 10, 1995. On September 21, 1994, in accordance description of the scope of this Joseph A. Spetrini, with 19 CFR 353.22(a), Consolidated proceeding is dispositive. Deputy Assistant Secretary for Compliance. requested that we conduct an This review covers the period [FR Doc. 95–20220 Filed 8–15–95; 8:45 am] administrative review of China National September 1, 1993, through August 31, 1994, and eight producer/exporters of BILLING CODE 3510±DS±M Automotive Industry I/E Corp., Nantong Branch (Nantong); China National Chinese lug nuts. Automobile Import and Export Corp., Market-Oriented Industry [A±570±808] Yangzhou Branch (Yangzhou); Jiangsu Rudong Grease-Gun Factory (Rudong); Rudong submitted, with its March 30, Chrome-Plated Lug Nuts From The Ningbo Knives & Scissors Factory 1995 questionnaire response, a request People's Republic of China; (Ningbo); Shanghai Automobile Import that we treat the lug nuts industry as a Preliminary Results of Antidumping & Export Corp. (Shanghai Automobile); market-oriented industry (MOI). Rudong Duty Administrative Review Tianjin Automotive Import and Export claims that its material inputs are acquired at market prices and that, AGENCY: Import Administration, Co. (Tianjin); China National Machinery accordingly, we should find that the International Trade Administration, & Equipment Import & Export Corp., Chinese lug nuts industry is an MOI, U.S. Department of Commerce. Jiangsu Branch (Jiangsu); and China National Automotive Industry I/E Corp. and use Rudong’s home market sales ACTION: Notice of Preliminary Results of (China National). We published a notice and/or costs as the basis of FMV. the Antidumping Duty Administrative of initiation of this antidumping duty The criteria for determining whether Review of Chrome-Plated Lug Nuts from administrative review on October 13, an MOI exists are: (1) For the the People’s Republic of China. 1994 (59 FR 51939). The Department is merchandise under review, there must be virtually no government involvement SUMMARY: The Department of Commerce conducting this administrative review in setting prices or amounts to be (the Department) is conducting an in accordance with section 751 of the Tariff Act of 1930, as amended (the Act). produced; (2) the industry producing administrative review of the the merchandise under review should antidumping duty order on chrome- Applicable Statute and Regulations be characterized by private or collective plated lug nuts (lug nuts) from the ownership; and (3) market-determined People’s Republic of China (PRC) in Unless otherwise stated, all citations to the statute and the Department’s prices must be paid for all significant response to a request by petitioner, regulations are in reference to the inputs, whether material or non- Consolidated International Automotive, provisions as they existed on December material (e.g., labor and overhead), and Inc. (Consolidated). This review covers 31, 1994. for all but an insignificant portion of all shipments of this merchandise to the the inputs accounting for the total value United States during the period Scope of Review of the merchandise under review. (See September 1, 1993, through August 31, On April 19, 1994, the Department Amendment to Final Determination of 1994. issued its ‘‘Final Scope Clarifications on Sales at Less than Fair Value and We have preliminarily determined Chrome-Plated Lug Nuts from Taiwan Amendment to Antidumping Duty that sales have been made below foreign and the PRC.’’ The scope, as clarified, is Order: Chrome-Plated Lug Nuts from the market value (FMV). If these described in the subsequent paragraph. People’s Republic of China (57 FR preliminary results are adopted in our All lug nuts covered by this review 15054, April 24, 1992) (Lug Nuts final results, we will instruct the U.S. conform to the April 19, 1994, scope Redetermination).) Customs Service to assess antidumping clarification. As we found in the Lug Nuts duties equal to the difference between Imports covered by this review are Redetermination, in the original United States price (USP) and FMV. one-piece and two-piece chrome-plated investigation of this case, the third Interested parties are invited to lug nuts, finished or unfinished. The criterion of the test, noted above, has comment on these preliminary results. subject merchandise includes chrome- not been met in this review. Rudong has EFFECTIVE DATE: August 16, 1995. plated lug nuts, finished or unfinished, not submitted any factual evidence that FOR FURTHER INFORMATION CONTACT: which are more than 11⁄16 inches (17.45 demonstrates that it pays market- Donald Little, Elisabeth Urfer, or millimeters) in height and which have determined prices for steel, a major Maureen Flannery, Office of a hexagonal (hx) size of at least 3⁄4 input in lug nut production, or that the Antidumping Compliance, Import inches (19.05 millimeters) but not over steel industry is not subject to Administration, International Trade one inch (25.4 millimeters), plus or significant state control and state- Administration, U.S. Department of minus 1⁄16 of an inch (1.59 millimeters). required production. Further, Rudong Commerce, 14th Street and Constitution The term ‘‘unfinished’’ refers to has not placed on the record any factual Avenue, NW., Washington DC 20230; unplated and/or unassembled chrome- evidence that it pays market-determined telephone (202) 482–4733. plated lug nuts. The subject prices for chemical inputs, or that the merchandise is used for securing wheels chemicals industry is not subject to Background to cars, vans, trucks, utility vehicles, significant state control. Rudong has not The Department published in the and trailers. Zinc-plated lug nuts, supplied any description of the supply Federal Register an antidumping duty finished or unfinished, and stainless- and demand factors supporting a claim order on lug nuts from the PRC on April steel capped lug nuts are not included that the steel and chemicals industries 24, 1992 (57 FR 15052). On September in the scope of this review. Chrome- in the PRC are market-driven. Based on 2, 1994, the Department published in plated lock nuts are also not subject to the foregoing, we preliminarily the Federal Register (59 FR 45664) a this review. determine that Rudong has not notice of opportunity to request an Chrome-plated lug nuts are currently demonstrated the lug nut industry is an administrative review of the classified under subheading MOI and accordingly have calculated antidumping duty order on lug nuts 7318.16.00.00 of the Harmonized Tariff foreign market value in accordance with from the PRC covering the period Schedule (HTS). Although the HTS section 773(c) of the Act. For a further September 1, 1993, through August 31, subheading is provided for convenience discussion of the Department’s 1994. and customs purposes, the written preliminary determination that the lug Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42505 nuts industry does not constitute an August 31, 1993 (1992–93 review), we right to act on their own, adopt MOI, see Decision Memorandum to preliminarily determined that Nantong independent accounting, and assume Holly A. Kuga, Director of Antidumping merited a separate rate. Because the the sole responsibility for their profits Compliance, dated July 31, 1995, results from the 1992–93 review are not and losses. (See July 20, 1995 ‘‘Market Oriented Industry Request in final, we analyzed Nantong’s memorandum to the file, with the Third Administrative Review of submission in this review to determine attachments, ‘‘Chrome-Plated Lug Nuts Chrome-Plated Lug Nuts from the whether Nantong merits a separate rate. from the People’s Republic of China: People’s Republic of China,’’ which is We have made the determination of laws and regulations governing various on file in the Central Record Unit (room whether Rudong and Nantong should categories of companies in the PRC.’’) B099 of the Main Commerce Building). receive separate rates under the policy With respect to the absence of de set forth in Silicon Carbide and facto control, Rudong is a collectively- Separate Rates Sparklers. In Silicon Carbide, we owned enterprise. Rudong’s To establish whether a company concluded that ownership by the people management is elected by Rudong’s operating in a state-controlled economy does not require the application of a staff, and is responsible for all decisions is sufficiently independent to be single rate, and amplified the test set out such as determining its export prices, entitled to a separate rate, the in Sparklers by examining the profit distribution, employment policy, Department analyzes each exporting management of an enterprise. With marketing strategy, and negotiating entity under the test established in the respect to the absence of de jure contracts. During verification, we saw Final Determination of Sales at Less government control, evidence on the no evidence of government involvement Than Fair Value: Sparklers from the record indicates that Nantong is a local in these decisions. People’s Republic of China (56 FR government-owned company, an We have found that the evidence on 20588, May 6, 1991) (Sparklers), as independent entity. Further, several the record demonstrates an absence of amplified by the Final Determination of PRC laws establish that the government control, both in law and in Sales at Less Than Fair Value: Silicon responsibility for managing entities has fact, with respect to Rudong and Carbide from the People’s Republic of been transferred from the central Nantong according to the criteria China (59 FR 22585, May 2, 1994) government to the enterprise. (See July identified in Sparklers and Silicon (Silicon Carbide). Under this policy, 18, 1995 memorandum to the file, with Carbide. For further discussion of the exporters in non-market economies attachments, ‘‘Chrome-Plated Lug Nuts Department’s preliminary determination (NMEs) are entitled to separate, from the People’s Republic of China: that Rudong and Nantong are each company-specific margins when they laws and regulations governing various entitled to a separate rate, see Decision can demonstrate an absence of categories of companies in the PRC.’’) In Memorandum to Holly A. Kuga, Director government control, both in law and in particular, ‘‘The People’s Republic of of Antidumping Compliance, dated July fact, with respect to exports. Evidence China All People’s Ownership Business 31, 1995, ‘‘Separate Rate for Jiangsu supporting, though not requiring, a Law,’’ enacted on April 13, 1988, Rudong Grease-Gun Factory in the finding of de jure absence of indicates that branch companies have Third Administrative Review of government control over export become legally and financially Chrome-Plated Lug Nuts from the activities includes: (1) An absence of independent of centrally-controlled People’s Republic of China,’’ and restrictive stipulations associated with foreign trade companies. Additionally, Decision Memorandum to Holly A. an individual exporter’s business and lug nuts do not appear on the Kuga, Director of Antidumping export licenses; (2) any legislative ‘‘Temporary Provisions for Compliance, dated July 31, 1995, enactments decentralizing control of Administration of Export ‘‘Separate Rate for China National companies; and (3) any other formal Commodities,’’ approved on December Machinery & Equipment Import & measures by the government 21, 1992, and are not, therefore, subject Export Corp., Nantong Company, in the decentralizing control of companies. De to the constraints of this provision. Third Administrative Review of facto absence of government control With respect to the absence of de Chrome-Plated Lug Nuts from the over exports is based on four factors: (1) facto control, although Nantong is a People’s Republic of China,’’ which are Whether each exporter sets its own local government-owned company, such on file in the Central Record Unit (room export prices independently of the ownership does not preclude a B099 of the Main Commerce Building). government and without the approval of determination that a separate rate is a government authority; (2) whether appropriate. Nantong’s management is Verification each exporter retains the proceeds from elected by company staff, and is We verified the information submitted its sales and makes independent responsible for all decisions such as by Rudong in the PRC from May 4 decisions regarding the disposition of determining export prices, allocation through May 6, 1995, and May 8 and profits or financing of losses; (3) and retention of profit on export sales, May 9, 1995. We used standard whether each exporter has the authority and negotiating export sales contracts. verification procedures, including to negotiate and sign contracts and other Nantong stated that the PRC government examination of relevant accounting and agreements; and (4) whether each does not become involved with its production records and original source exporter has autonomy from the business activities. documents provided by Rudong. government regarding the selection of With respect to the absence of de jure management. government control, evidence on the United States Price Rudong and Nantong responded to record indicates that Rudong is a For sales made by Rudong we based the Department’s request for collectively-owned enterprise. Rudong USP on purchase price, in accordance information regarding separate rates; stated that it has always operated as a with section 772(b) of the Act, because therefore, Rudong and Nantong were the decentralized company. The the subject merchandise was sold to only firms on which we made a ‘‘Regulations on Rural Collective unrelated purchasers in the United determination of whether they should Enterprises’’ identify rules and States prior to importation into the receive a separate rate. In the previous regulations pertaining to collectively- United States. administrative review covering the owned enterprises which give rural We calculated purchase price based period from September 1, 1992 through collective enterprises such rights as the on the price to unrelated purchasers. We 42506 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices made deductions, where appropriate, • For steel wire rods, we used a per September 1994 Reserve Bank of India for brokerage and handling, foreign kilogram value obtained from the March Bulletin for the Indian metals and inland freight, marine insurance, and 1994 Monthly Statistics of Foreign chemicals industries. We calculated a ocean freight. We valued brokerage and Trade of India (Indian Import Statistics) profit rate by dividing the before-tax handling, foreign inland freight, marine for the period April 1993 through March profit by the cost of manufacturing plus insurance, and ocean freight deductions 1994. Using wholesale price indices SG&A. Since the calculated profit rate is using surrogate data based on Indian (WPI) obtained from the International less than eight percent, we used the freight costs. We selected India as the Financial Statistics, published by the statutory minimum of eight percent to surrogate country for the reasons International Monetary Fund (IMF), we calculate profit. explained in the ‘‘Foreign Market adjusted these values to reflect inflation • For packing materials, we used per Value’’ section of this notice. through the period of review (POR). We kilogram values obtained from the made further adjustments to include Indian Import Statistics. We adjusted Foreign Market Value freight costs incurred between the these values to reflect inflation through For all companies located in NME supplier and Rudong. the POR using WPI published by the countries, section 773(c)(1) of the Act • For chemicals used in the IMF. provides that the Department shall production and plating of lug nuts, we • To value electricity, we used the determine FMV using a factors-of- used per kilogram values obtained from price of electricity for 1993 reported in production methodology if (1) The the Indian Import Statistics. We the Confederation of Indian Industries merchandise is exported from an NME adjusted these rates to reflect inflation Handbook of Statistics. We adjusted the country, and (2) the information does through the POR using WPI published value of electricity to reflect inflation not permit the calculation of FMV under by the IMF. We made further through the POR using WPI published section 773(a) of the Act. adjustments to include freight costs by the IMF. • In the amendment to the final incurred between the supplier and To value truck freight, we used the Rudong. rates reported in an August 1993 cable determination of sales at less than fair • value (LTFV), the Department treated For hydrochloric acid, we based the from the U.S. Consulate in India value on an Indian price quote used in the PRC as an NME country, and submitted for the Final Determination of the Final Determination of Sales at Less determined that the lug nuts industry is Sales at Less Than Fair Value: Certain Than Fair Value: Coumarin from the not a MOI (see Lug Nuts Helical Spring Lock Washers From the People’s Republic of China (59 FR Redetermination). Rudong has argued People’s Republic of China (58 FR 66895, December 28, 1994) (Coumarin), that the lug nut industry is a MOI; 48833, September 20, 1993). We because the Indian Import Statistics for however, as discussed above, we have adjusted the rates to reflect inflation hydrochloric acid were found to be preliminarily determined the lug nut through the POR using WPI published aberrational. We adjusted the value used industry not to be market-oriented. by the IMF. in Coumarin to reflect inflation through Accordingly, we are not able to the POR using WPI published by the Currency Conversion determine FMV on the basis of Rudong’s IMF. We made currency conversions in costs and prices, and have applied • For direct labor, we used the labor accordance with 19 CFR 353.60(a). surrogate values to the factors of rates reported in the Business Currency conversions were made at the production to determine FMV. International Corporation report IL&T rates certified by the Federal Reserve We calculated FMV based on factors India, released November 1993. This Bank. of production in accordance with source breaks out labor rates between Best Information Available section 773(c) of the Act and section skilled and unskilled labor for 1993 and 353.52 of our regulations. We provides information on the number of We preliminarily determine, in determined that India is comparable to labor hours worked per week. We accordance with section 776(c) of the the PRC in terms of: (1) Per capita gross adjusted these rates to reflect inflation Act, that the use of best information national product (GNP), (2) the growth through the POR using WPI published available (BIA) is appropriate for rate in per capita GNP, and (3) the by the IMF. Yangzhou, Ningbo, Jiangsu, China national distribution of labor. In • For factory overhead, we used National, Tianjin, and Shanghai addition, India is a significant producer information reported in the September Automobile because these firms did not of comparable merchandise. Therefore, 1994 Reserve Bank of India Bulletin for respond to the Department’s for this review, we chose India as the the Indian metals and chemicals antidumping questionnaire. most comparable surrogate on the basis industries. From this information, we In deciding what to use as BIA, 19 of the above criteria, and have used were able to determine factory overhead CFR 353.37(b) provides that the publicly available information relating as a percentage of the total cost of Department may take into account to India to value the various factors of manufacture. whether a party refused to provide production. (See Memorandum to • For selling, general and requested information. Thus, the Laurie Parkhill from David Mueller, administrative (SG&A) expenses, we Department determines on a case-by- dated June 9, 1995, ‘‘Chrome-Plated Lug used information obtained from the case basis what is BIA. When a Nuts from the People’s Republic of September 1994 Reserve Bank of India company refuses to provide the China: Non-market Economy Status and Bulletin for the Indian metals and information requested in the form Surrogate Country Selection,’’ and chemicals industries. We calculated an required, or otherwise significantly Memorandum to the File from Donald SG&A rate by dividing SG&A expenses impedes the Department’s review, the Little, dated July 20, 1995, ‘‘India: by the cost of manufacture. Since the Department will normally assign to that Significant Production of Comparable calculated SG&A expense rate is less company the higher of (1) The highest Merchandise,’’ which are on file in the than 10 percent of the cost of rate for any firm in the investigation or Central Record Unit (room B099 of the manufacture, we used the statutory prior administrative reviews of sales of Main Commerce Building).) minimum of 10 percent. subject merchandise from that same We valued the factors of production • To calculate a profit rate, we used country; or (2) the highest rate found in as follows: information obtained from the the current review for any firm. When Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42507 a company has cooperated with the Parties to the proceeding may request prior to liquidation of the relevant Department’s request for information disclosure within 5 days of the date of entries during this review period. but fails to provide the information publication of this notice. Any Failure to comply with this requirement requested in a timely manner or in the interested party may request a hearing could result in the Secretary’s form required, the Department will within 10 days of publication. Any presumption that reimbursement of normally assign to that company the hearing, if requested, will be held 44 antidumping duties occurred and the higher of (1) the highest margin days after the publication of this notice, subsequent assessment of double calculated for that company in any or the first workday thereafter. antidumping duties. previous review or the original Interested parties may submit case briefs This administrative review and notice investigation; or (2) the highest within 30 days of the date of publication are in accordance with section 751(a)(1) calculated margin for any respondent of this notice. Rebuttal briefs, which of the Act (19 U.S.C. 1675(a)(1)) and 19 that supplied an adequate response for must be limited to issues raised in the CFR 353.22. the current review. (See Antifriction case briefs, may be filed not later than Dated: August 8, 1995. 37 days after the date of publication. Bearings (Other than Tapered Roller Susan G. Esserman, Bearings) and Parts Thereof From the The Department will publish a notice of final results of this administrative Assistant Secretary for Import Federal Republic of Germany, et al.; Administration. Final Results of Administrative Review review, which will include the results of [FR Doc. 95–20211 Filed 8–15–95; 8:45 am] (56 FR 31705, July 11, 1991).) its analysis of issues raised in any such BILLING CODE 3510±DS±P We have applied BIA to sales made by comments. The Department shall determine, and China National, Jiangsu, Yangzhou, the U.S. Customs Service shall assess, Ningbo, Shanghai Automobile, and antidumping duties on all appropriate [A±602±803] Tianjin. Because these firms did not entries. Individual differences between respond to our questionnaire, as BIA we Certain Corrosion-Resistant Carbon U.S. price and FMV may vary from the have applied the highest margin ever in Steel Flat Products from Australia: percentage stated above. The the LTFV investigation or in this or Preliminary Results of Antidumping Department will issue appraisement prior administrative reviews. The instructions directly to the U.S. Customs Duty Administrative Review highest rate in this proceeding is 42.42 Service. AGENCY: Import Administration, percent, which the Department Furthermore, the following deposit determined in the LTFV investigation. If International Trade Administration, rates will be effective upon publication Department of Commerce. the publication of the final results of the of the final results of this administrative ACTION: Notice of Preliminary Results of 1992–93 review occurs prior to the final review for all shipments of lug nuts Antidumping Duty Administrative results for this review, we will consider from the PRC entered, or withdrawn Review. those results in our final BIA from warehouse, for consumption on or determination. These firms form the after the publication date, as provided basis of the PRC country-wide rate, SUMMARY: In response to a request by for by section 751(a)(1) of the Act: (1) one respondent, the Department of which is therefore also based on non- For Rudong, which has a separate rate, cooperative BIA. Commerce (the Department) is the cash deposit rate will be the conducting an administrative review of Non-Shipper company-specific rate established in the the antidumping duty order on Certain final results of this administrative Corrosion-Resistant Carbon Steel Flat Nantong submitted a questionnaire review; (2) for Nantong, which had no Products from Australia (A–602–803). response to the Department stating that shipments to the United States during This review covers one manufacturer/ it did not ship lug nuts to the United this review period and which has a exporter of the subject merchandise to States during the period of review. separate rate, the cash deposit rate will the United States during the period of There is no evidence on the record to be the company-specific rate established review (POR) February 4, 1993, through demonstrate that Nantong shipped for the last period in which it was July 31, 1994. subject merchandise to the United reviewed, i.e., the 1992–93 period; (3) We have preliminarily determined States during the period of review. We for the companies named above which that sales to the United States have been have preliminarily determined that were not found to have separate rates, made below the foreign market value Nantong merits a separate rate for this China National, Jiangsu, Yangzhou, (FMV). If these preliminary results are review period, as discussed in the Ningbo, Shanghai Automobile, and adopted in our final results of separates rates section above. Assuming Tianjin, as well as for all other PRC administrative review, we will instruct that we determine, in the final results of exporters, the cash deposit rate will be U.S. Customs to assess antidumping review for the 1992–93 period, that the highest margin ever in the LTFV duties equal to the difference between Nantong merits a separate rate for that investigation or in this or prior the United States Price (USP) and the period, we will assign to Nantong for administrative reviews, the PRC rate; FMV. this period its own rate we determine in and (4) for non-PRC exporters of subject Interested parties are invited to the final results of the 1992–93 period. merchandise from the PRC, the cash comment on these preliminary results. Preliminary Results of the Review deposit rate will be the rate applicable to the PRC supplier of that exporter. EFFECTIVE DATE: August 16, 1995. We preliminarily determine that the These deposit rates, when imposed, FOR FURTHER INFORMATION CONTACT: Bob following dumping margin exists: shall remain in effect until publication Bolling or Sally Gannon, Office of of the final results of the next Agreements Compliance, Import Manufacturer/Ex- Time Pe- Margin administrative review. Administration, International Trade porter riod (percent) This notice also serves as a Administration, U.S. Department of preliminary reminder to importers of Commerce, 14th Street and Constitution Jiangsu Rudong 09/01/93± 20.59 their responsibility under 19 CFR Avenue, N.W., Washington, D.C. 20230, Grease-Gun Fac- 08/31/94 tory. 353.26 to file a certificate regarding the telephone: (202) 482–3793. reimbursement of antidumping duties SUPPLEMENTARY INFORMATION: 42508 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Background 0.5 inch or greater, or in straight lengths A. Trading On July 9, 1993, the Department which, if of a thickness less than 4.75 Purchase price was based on the published in the Federal Register (58 millimeters, are of a width of 0.5 inch packed price, with sales terms ex dock FR 37079) the final affirmative or greater and which measures at least paid F.O.B., to unrelated purchasers in antidumping duty determination on 10 times the thickness or if of a the United States. We made deductions Certain Corrosion-Resistant Carbon thickness of 4.75 millimeters or more from purchase price, where appropriate, Steel Flat Products from Australia, and are of a width which exceeds 150 for foreign inland freight, foreign inland published an antidumping duty order millimeters and measures at least twice insurance, ocean freight, marine on August 19, 1993 (58 FR 44161). On the thickness, as currently classifiable in insurance, brokerage and handling, port August 3, 1994, the Department the HTS under item numbers charges, U.S. duty, wharfage, and U.S. published the notice of ‘‘Opportunity to 7210.31.0000, 7210.39.0000, inland freight. ESP was based on the Request an Administrative Review’’ of 7210.41.0000, 7210.49.0030, packed, F.O.B. price to unrelated this order for the period February 4, 7210.49.0090, 7210.60.0000, purchasers in the United States. We 1993, through July 31, 1994 (59 FR 7210.70.6030, 7210.70.6060, made deductions from ESP, where 39543). The Department received 7210.70.6090, 7210.90.1000, applicable, for foreign inland freight, requests for administrative review from 7210.90.6000, 7210.90.9000, foreign inland insurance, ocean freight, the Australian National Industries Ltd. 7212.21.0000, 7212.29.0000, marine insurance, brokerage and (ANI), and the Broken Hill Proprietary 7212.30.1030, 7212.30.1090, handling, port charges, U.S. duty, U.S. Company Ltd. (BHP). On September 8, 7212.30.3000, 7212.30.5000, inland freight, wharfage, credit 1994 (59 FR 46391), we initiated the 7212.40.1000, 7212.40.5000, expenses, warranty expenses, administrative review of ANI, and on 7212.50.0000, 7212.60.0000, warehousing expenses, third-party September 19, 1994 (59 FR 47842) we 7215.90.1000, 7215.90.5000, commissions and indirect selling amended that initiation notice to 7217.12.1000, 7217.13.1000, expenses (which include inventory include BHP. Subsequently, on 7217.19.1000, 7217.19.5000, carrying costs, selling expenses, November 3, 1994, ANI timely 7217.22.5000, 7217.23.5000, unrelated processing expenses, and withdrew its request for an 7217.29.1000, 7217.29.5000, other U.S. incurred selling expenses). administrative review pursuant to 7217.32.5000, 7217.33.5000, B. Coated section 353.22(a)(5) and on April 12, 7217.39.1000, and 7217.39.5000. 1995, the Department published a Included are flat-rolled products of ESP was based on the packed price, ‘‘Partial Termination of Antidumping nonrectangular cross-section where with various sales terms, to unrelated Administrative Review’’ (60 FR 18581). such-section is achieved subsequent to purchasers in the United States. We The Department is now conducting the rolling process (i.e., products which made deductions from ESP, where this review in accordance with section have been ‘‘worked after rolling’’)—for applicable, for foreign inland freight, 751 of the Tariff Act of 1930, as example, products which have been foreign inland insurance, ocean freight, amended (the Tariff Act). This review bevelled or rounded at the edges. brokerage and handling, U.S. duty, U.S. covers sales of certain corrosion- Excluded are flat-rolled steel products inland freight, credit expenses, and resistant carbon steel flat products by either plated or coated with tin, lead, indirect selling expenses (which include BHP and its subsidiaries, BHP Trading, chromium, chromium oxides, both tin inventory carrying costs and selling Inc. (‘‘Trading’’), BHP Coated and lead (‘‘terne plate’’), or both expenses). Corporation (‘‘Coated’’), and BHP Steel chromium and chromium oxides (‘‘tin- In addition, where appropriate, we Products USA Inc. (‘‘Building’’). The free steel’’), whether or not painted, made further deductions from ESP for POR is February 4, 1993 through July varnished or coated with plastics or all value-added to corrosion-resistant 31, 1994. other nonmetallic substances in steel in the United States, pursuant to addition to the metallic coating. Also section 772(e)(3) of the Tariff Act. The Applicable Statute and Regulations excluded are clad products in straight value-added consists of the costs Unless otherwise indicated, all lengths of 0.1875 inch or more in associated with the production of the citations to the statute and to the composite thickness and of a width further-manufactured products, other Department’s regulations are references which exceeds 150 millimeters and than the costs associated with the to the provisions as they existed on measures at least twice the thickness. imported corrosion-resistant steel, and a December 31, 1994. Also excluded are certain clad stainless proportional amount of any profit flat-rolled products, which are three- related to the further-manufacture. Scope of the Review layered corrosion-resistant carbon steel Profit was calculated by deducting all The products covered by this flat-rolled products less than 4.75 applicable expenses from the sales of administrative review constitute one millimeters in composite thickness that the corrosion-resistant steel. The total ‘‘class of kind’’ of merchandise: certain consist of a carbon steel flat-rolled profit was then allocated proportionally corrosion-resistant carbon steel flat product clad on both sides with to all components of cost. Only the products. These products include flat- stainless steel in a 20%-60%-20% ratio. profit attributable to the value added rolled carbon steel products, of These HTS item numbers are provided was deducted from ESP. See Color rectangular shape, either clad, plated, or for convenience and Customs purposes. Televisions From Korea, 55 FR 26225 (6/ coated with corrosion-resistant metals The written description remains 27/90). such as zinc, aluminum, or zinc-, dispositive. In determining the costs incurred to aluminum-, nickel- or iron-based alloys, United States Price produce the further-manufactured whether or not corrugated or painted, corrosion-resistant steel the Department varnished or coated with plastics or The Department used purchase price included the appropriate (1) cost of other nonmetallic substances in and exporter’s sales price (ESP) for manufacture, (2) movement and packing addition to the metallic coating, in coils Trading, ESP for Coated, and ESP for expenses, (3) selling, general and (whether or not in successively Building, as defined in section 772 of administrative expenses (SG&A), and (4) superimposed layers) and of a width of the Tariff Act. interest expenses. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42509 For any further-manufactured sales we determined that the home market substantial quantities over an extended where we found that the model-specific was viable. Further, BHP had sales both period of time, and whether such sales home market cost information necessary to related and unrelated parties in the were made at prices which permitted to build the total further-manufacturing home market during the POR. After recovery of all costs within a reasonable cost was not provided, we used the reviewing and verifying BHP’s U.S. and period of time in the normal course of costs (total cost of manufacturing, home market sales to both unrelated and trade. We calculated COP for BHP as the general and administrative expenses, related purchasers and their ability to sum of reported materials, labor, factory and interest expenses) which obtain downstream sales information, overhead, and general expenses, and corresponded to the lowest total cost of the Department determined that BHP compared the COP to home market production identified in the home need not report its home market sales prices, net price adjustments, discounts, market cost database. made by its related distributors to the rebates, movement expenses, and pre- first unrelated party (downstream sales) packing and packing expenses in C. Building because BHP’s home market sales to the accordance with 19 CFR 353.51(c). ESP was based on the packed price, related distributors were made on an Pursuant to the Department’s practice, with various sales terms, to unrelated arm’s length basis (see the Department’s for each model for which less than 10 purchasers in the United States. We June 9, 1995, letter to BHP available in percent, by quantity, of the home market made deductions from ESP, where the public file). In addition, for sales to sales during the POR were made at applicable, for foreign inland freight, certain related parties that failed the prices below the COP, we included all foreign island insurance, ocean freight, arm’s-length test, the Department did sales of that model in the computation brokerage and handling, U.S. duty, U.S. not require BHP to report the of FMV. For each model for which 10 inland freight, freight to customer, downstream sales made by these related percent or more, but less than 90 credit expenses, third-party parties because the related parties percent, of the home market sales commissions, warranty expenses, credit further-manufactured the products into during the POR were priced below the notes, discounts and rebates, and merchandise outside the scope of this merchandise’s COP, we excluded from indirect selling expenses (which include review. For a full discussion of how we the calculation of FMV those home inventory carrying costs, selling treated BHP’s sales to related parties in market sales which were priced below expenses, and pre-sale freight). In this review, see the Analysis the merchandise’s COP, provided that addition, we made further deductions Memorandum for this review, which is they were made over an extended from ESP for all value-added to on file in room B–099 of the main period of time. For each model for corrosion-resistant steel in the United building of the commerce Department. which 90 percent or more of the home States, as described above. BHP had sales of secondary market sales during the POR were Where the customer level of trade was merchandise (non-prime) in the home priced below the COP and were made missing for certain sales and we were market; however, there were no sales of over an extended period of time, we unable to perform the matching of these secondary merchandise in the U.S. disregarded all sales of that model in sales with the home market database, market during the POR. Therefore, as our calculation and, in accordance with we applied to these sales the final per our established model match section 773(b) of the Tariff Act, we used weighted-average margin determined in criteria, the Department only compared the constructed value (CV) of those the less than fair value (LTFV) prime merchandise sold in the United models, as described below. See e.g., investigation as the best information States to prime merchandise sold in the Mechanical Transfer Presses from available (BIA) in accordance with our home market. Japan, Final Results of Antidumping practice regarding partial BIA (see Petitioners submitted an allegation of Duty Administrative Review, 59 FR 9958 Antifriction Bearings (Other Than sales-below-cost on January 20, 1995, (March 2, 1994). Tapered Roller Bearings) and Parts and supplemented the allegation on In accordance with section 773(b)(1) Thereof from France, 60 FR 10900, January 30, 1995. We reviewed of the Tariff Act, to determine whether 10907, February 28, 1995). For any petitioners’ methodology and found that sales below cost had been made over an further-manufactured sales where we petitioners calculated the cost of extended period of time, we compared found that the model-specific home production (COP) in accordance with 19 the number of months in which sales market cost information necessary to C.F.R. 353.51 and based their below cost occurred for a particular build the total further manufacturing calculations on data submitted on the model to the number of months in cost was not provided, we used costs as record by the respondents. We which that model was sold. If the model described above. determined that petitioner’s sales- was sold in fewer than three months, we It is the Department’s standard below-cost methodology was did not disregard below-cost sales practice in ESP cases to conduct the reasonable, indicating that there were unless there were below-cost sales of review on the basis of sales made during reasonable grounds to believe or suspect that model in each month sold. If a the POR. Respondent claimed that that, during this POR, BHP made sales model was sold in three or more certain merchandise was not subject to of subject merchandise in the home months, we did not disregard below- review because the merchandise entered market at prices less than the COP. cost sales unless there were sales below prior to the suspension of liquidation Thus, in accordance with section 773(b) cost in at least three of the months in (February 4, 1993). We have included of the Tariff Act, the Department which the model was sold. See Tapered all sales during the POR because there initiated an investigation on February 3, Roller Bearings and Parts Thereof, is not sufficient data to link sales during 1995, to determine whether BHP made Finished and Unfinished, From Japan the POR to entries of subject home market sales of corrosion-resistant and Tapered Roller Bearings, Four merchandise prior to suspension of steel at prices less than the COP during Inches or Less in Outside Diameter, and liquidation. See Industrial Belts From the POR. Components Thereof, From Japan: Final Italy, 57 FR 8295, 96 March 9, 1992. In accordance with section 773(b) of Results of Antidumping Duty the Tariff Act, in determining whether Administrative Reviews, 58 FR 64720, Foreign Market Value to disregard home market sales made at 64729 (December 8, 1993). Based on a comparison of the volume prices below the COP, we examined BHP provided insufficient evidence of home market and third country sales, whether such sales were made in that its below-cost sales of models were 42510 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices at prices that would permit recovery of than the average discount, or no Preliminary Results of Review all costs within a reasonable period of discount, the amount necessary to bring As a result of our comparison of USP time and in the normal course of trade. the discount up to the full amount of the to FMV, we preliminarily determine Thus, we disregarded those sales which appropriate average discount. While that the following margin exists for the were made below cost over an extended BHP supported its claim that discounts period February 4, 1993, through July period of time pursuant to the were granted on more than 20 percent 31, 1994; methodology described above. For a full of sales, we denied the adjustment discussion of how we treated BHP’s because respondent failed to Manufacturer Margin claim of cost recovery in this review, see demonstrate that the discounts actually (percent) the Analysis Memorandum for this granted were of at least the same BHP ...... 20.10 review, which is on file in room B–099 magnitude, as required under of the main building of the Commerce 353.55(b)(1). For a full discussion of Interested parties may request Department. how we treated these claims and the We used CV as FMV for those U.S. disclosure within 5 days of the date of missing data, see the Analysis publication of this notice and may models for which we were unable to Memorandum for this review, which is find a home market match and request a hearing within 10 days of on file in room B–099 of the main publication. Any hearing, if requested, calculated CV in accordance with building of the Commerce Department. section 773(e) of the Tariff Act. In our will be held 44 days after the date of calculations, we included the cost of For purchase price comparisons, publication or the first business day materials, labor, and factory overhead. pursuant to section 773(a)(4)(B) of the thereafter. Case briefs and/or written Where the general expenses were less Tariff Act and 19 CFR 353.56(a)(2), we comments from interested parties may than the statutory minimum of 10 made circumstance of sale adjustments be submitted no later than 30 days after percent of the cost of manufacture to FMV, where appropriate, for the date of publication. Rebuttal briefs (COM), we calculated general expenses differences in warranty, credit, and and rebuttals to written comments, as 10 percent of COM. Where the actual warehousing expenses. We deducted limited to issues raised in those profits were less than the statutory from FMV home market pre-packing comments, may be filed not later than minimum of 8 percent of the COM plus and packing costs and added to FMV 37 days after the date of publication of general expenses, we calculated profit packing expenses incurred in Australia this notice. The Department will as 8 percent of the sum of COM plus for U.S. sales. Where appropriate, we publish the final results of this general expenses. added U.S. third-party commissions to administrative review including the In accordance with section FMV and deducted from FMV the results of its analysis of issues raised in 773(a)(1)(A) of the Tariff Act, for those weighted-average home market indirect any such written comments or at a U.S. models for which we were able to selling expenses (which included hearing. find a home market such or similar inventory carrying costs, indirect selling The Department shall determine, and match, we calculated FMV based on the expenses, technical service expenses, the Customs Service shall assess, packed, F.I.S. (‘‘free into store’’) home and pre-sale freight expenses) up to the antidumping duties on all appropriate market sales price to unrelated amount of the third-party commissions entries. Individual differences between purchasers or related purchasers which incurred on U.S. sales, in accordance the USP and FMV may vary from the met the Department’s arms-length test as with 19 CFR 353.56(b)(1). We also percentages stated above. Furthermore, the following deposit described above. We made deductions adjusted FMV, where appropriate, for requirements will be effective for all from FMV, where applicable, for inland physical differences in the merchandise, shipments of the subject merchandise freight, inland insurance, credit in accordance with 19 CFR 353.57. expenses, warranty expenses, entered, or withdrawn from warehouse, advertising expenses, discounts and For ESP comparisons, we deducted for consumption on or after the rebates. from FMV the weighted-average home publication date of the final results of For home market sales with missing market indirect selling expenses (which this administrative review, as provided payment dates, we denied BHP’s claim include inventory carrying costs, for by section 751(a)(1) of the Tariff Act. for a cash (settlement) discount. For indirect selling expenses, technical A cash deposit of estimated sales with missing payment and service expenses, and pre-sale freight antidumping duties shall be required on shipment dates, we used the average expenses), limiting the home market shipments of Certain Corrosion- inventory and credit periods of the indirect selling expense deduction by Resistant Carbon Steel Flat Products remaining home market sales in order to the amount of indirect selling expenses from Australia as follows: (1) The cash calculate the inventory carrying cost incurred in the United States, in deposit rate for the reviewed company and credit expense, respectively, for accordance with section 353.56(b)(2) of will be the rate established in the final these sales. We will request the updated the Department’s regulations. In cases results of this review; (2) for previously information from BHP after the where a third-party commission was reviewed or investigated companies not preliminary results are issued. granted on the U.S. sale only, we listed above, the cash deposit rate will Additionally, we denied BHP’s claim increased the amount classified as U.S. continue to be the company-specific rate under section 353.55 that it had indirect selling expenses by the amount published for the most recent period; (3) provided discounts of at least the same of the U.S. third-party commission for if the exporter is not a firm covered in magnitude on 20 percent or more of its comparison to home market indirect this review, or the original LTFV sales, and that it was therefore entitled selling expenses. Also, after deducting investigation, but the manufacturer is, to an adjustment for discounts on sales from FMV home market pre-packing the cash deposit rate will be the rate that had not actually received a and packing expenses, we added to established for the most recent period discount. Using discounts of different FMV packing expenses incurred in for the manufacturer of the magnitudes, respondent calculated Australia for U.S. sales. We also merchandise; and (4) if neither the average discounts for painted and adjusted FMV, where appropriate, for exporter nor the manufacturer is a firm updated products. Respondent then physical differences in the merchandise, covered in this review, the case deposit applied to each sale that received less in accordance with 19 CFR 353.57. rate will be 24.96 percent. This is the Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42511 ‘‘all others’’ rate from the LTFV during the period of review (POR) Canada, 55 Fed. Reg. 460 (January 5, investigation. See Final Determination February 4, 1993, through July 31, 1994. 1990)). The Department’s investigation of Sales at Less Than Fair Value: We have preliminarily determined revealed that, for the period of Certain Corrosion-Resistant Carbon that sales have been made below the investigation, Sorevco should be Steel Flat Products from Australia. (58 foreign market value (FMV). If these ‘‘collapsed’’ with Dofasco. On October FR 37079, July 9, 1993). preliminary results are adopted in our 31, 1994, the U.S.-Canada Binational This notice also serves as a final results of administrative reviews, Panel upheld the Department’s decision preliminary reminder to importers of we will instruct U.S. Customs to assess to collapse Sorevco with Dofasco for the their responsibility under 19 CFR antidumping duties equal to the investigation. In the matter of: Certain 353.26 to file a certificate regarding the difference between the United States Corrosion-Resistant Carbon Steel Flat reimbursement of antidumping duties price (USP) and the FMV. Products, USA–93–1904–03. prior to liquidation of the relevant Interested parties are invited to The Department considered whether entries during this review period. comment on these preliminary results. Sorevco should remain collapsed with Failure to comply with this requirement EFFECTIVE DATE: August 16, 1995. Dofasco for the purposes of this could result in the Department’s FOR FURTHER INFORMATION CONTACT: John administrative review. presumption that reimbursement of Drury (CCC), Eric Johnson (Dofasco/ It is the Department’s practice to antidumping duties occurred and the Sorevco), Elizabeth Patience (Algoma), collapse related parties when the facts subsequent assessment of double Gerry Zapiain (Stelco), Steven Presing demonstrate that the relationship is antidumping duties. or Stephen Jacques, Office of such that there is a strong possibility of This administrative review and this Agreements Compliance, Import manipulation of prices and production notice are in accordance with section Administration, International Trade decisions that would result in 751(a)(1) of the Tariff Act (19 U.S.C. Administration, U.S. Department of circumvention of the antidumping law. 1675(a)(1)) and 19 CFR 353.22. Commerce, 14th Street and Constitution See Nihon Cement Co., Ltd. v. United Dated: August 8, 1995. Avenue, NW., Washington, DC 20230; States, Slip Op. 93–80 (CIT May 25, Susan G. Esserman, telephone: (202) 482–3793. 1993); Certain Iron Construction Castings from Canada, 55 Fed. Reg. 460 Assistant Secretary for Import SUPPLEMENTARY INFORMATION: Administration. (1990); Antifriction Bearings (Other Applicable Statute and Regulations Than Tapered Roller Bearings) and [FR Doc. 95–20302 Filed 8–5–95; 8:45 am] Parts Thereof from the Federal Republic BILLING CODE 3510±DS±M Unless otherwise indicated, all citations to the statute and to the of Germany, 54 Fed. Reg. 18992, 19089 Department’s regulations are references (1989). In determining whether to to the provisions as they existed on collapse related parties, the Department [A±122±820 (Lead Case Number) A±122±822 December 31, 1994. considered the level of common A±122±823] ownership; whether managerial Background employees or board members of one Certain Corrosion-Resistant Carbon company sit on the board(s) of directors Steel Flat Products and Certain Cut-to- On July 9, 1993, the Department of the other related party(ies); the Length Carbon Steel Plate From published in the Federal Register (58 existence of production facilities for Canada; Preliminary Results of FR 37099) the final affirmative similar or identical products that would Antidumping Duty Administrative antidumping duty determination on not require retooling either plant’s Review corrosion-resistant steel and cut-to- length plate from Canada, for which we facilities to implement a decision to AGENCY: Import Administration, published antidumping duty orders on restructure either company’s International Trade Administration, August 19, 1993 (58 FR 44162). On manufacturing priorities; and whether Department of Commerce. August 3, 1994, the Department the operations of the companies are ACTION: Notice of preliminary results of published the notice of ‘‘Opportunity to intertwined (e.g., sharing of sales antidumping duty administrative Request an Administrative Review’’ of information; involvement in production review. these orders for the period February 4, and pricing decisions, sharing of 1993, through July 31, 1994 (59 FR facilities or employees; transactions SUMMARY: In response to requests by 39543). The respondents, Algoma, CCC, between the companies). respondents, Algoma Steel Inc. Dofasco, MRM, Sorevco, and Stelco, Although the Department considers (Algoma), Continuous Colour Coat requested administrative reviews. We all four factors, no one factor is (CCC), Dofasco, Inc. (Dofasco), Manitoba initiated the reviews on September 8, determinative. Rather the determination Rolling Mills (MRM), Sorevco, Inc. 1994 (59 FR 46391). The Department is whether to collapse is based on the (Sorevco), Stelco Inc. (Stelco), the conducting these reviews in accordance totality of circumstances. See Nihon Department of Commerce (the with section 751 of the Tariff Act of Cement Co., Ltd. v. United States, Slip Department) is conducting the first 1930, as amended (the Tariff Act). Op. 93–80 at 51. administrative review of the In the underlying investigations of An analysis of the above-mentioned antidumping duty orders on Certain less-than-fair-value (LTFV) sales, the criteria as they relate to Dofasco and Corrosion-Resistant Carbon Steel Flat Department conducted an analysis of Sorevco for the current period of review Products (corrosion-resistant steel) (A– Sorevco’s relationship with Dofasco to revealed that collapsing of Dofasco and 122–822) and Certain Cut-to-Length determine whether the relationship Sorevco is warranted. The two Carbon Steel Plate (A–122–823) (cut-to- between the related parties is such that companies’ close business relationship, length plate) from Canada. These one company is in a position to Dofasco’s 50 percent ownership of reviews cover five manufacturers/ manipulate the other company’s prices Sorevco and continuing presence on exporters, Algoma, CCC, Dofasco, MRM, and/or production decisions (See Brass Sorevco’s board, and the existence of Sorevco, and Stelco, and entries of Sheet and Strip from France, 52 Fed. similar production facilities corrosion-resistant steel and cut-to- Reg. 812, 814 (January 9, 1987); Certain demonstrates a strong possibility of length plate into the United States Iron Construction Castings from future manipulation of production and 42512 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices pricing decisions (See Memorandum to 7210.60.0000, 7210.70.6030, 4.75 millimeters or more in thickness the File dated May 30, 1995). 7210.70.6060, 7210.70.6090, and of a width which exceeds 150 During the Department’s investigation 7210.90.1000, 7210.90.6000, millimeters and measures at least twice of sales at less than fair value of steel 7210.90.9000, 7212.21.0000, the thickness, as currently classifiable in from Canada, the Department also 7212.29.0000, 7212.30.1030, the HTS under item numbers collapsed CCC and Stelco. However, the 7212.30.1090, 7212.30.3000, 7208.31.0000, 7208.32.0000, U.S.-Canada Binational Panel concluded 7212.30.5000, 7212.40.1000, 7208.33.1000, 7208.33.5000, that there was not substantial evidence 7212.40.5000, 7212.50.0000, 7208.41.0000, 7208.42.0000, on the record supporting the 7212.60.0000, 7215.90.1000, 7208.43.0000, 7208.90.0000, Department’s decision to collapse the 7215.90.5000, 7217.12.1000, 7210.70.3000, 7210.90.9000, two companies, and directed the 7217.13.1000, 7217.19.1000, 7211.11.0000, 7211.12.0000, Department to ‘‘uncollapse’’ CCC and 7217.19.5000, 7217.22.5000, 7211.21.0000, 7211.22.0045, Stelco in preparing the Department’s 7217.23.5000, 7217.29.1000, 7211.90.0000, 7212.40.1000, redetermination. See USA–93–1904–03, 7217.29.5000, 7217.32.5000, 7212.40.5000, and 7212.50.0000. supra. 7217.33.5000, 7217.39.1000, and Included are flat-rolled products of In a submission dated January 19, 7217.39.5000. Included are flat-rolled nonrectangular cross-section where 1995, in conjunction with the first products of nonrectangular cross-section such cross-section is achieved administrative review, petitioners again where such cross-section is achieved subsequent to the rolling process (i.e., raised the issue of collapsing Stelco and subsequent to the rolling process (i.e., products which have been worked after CCC. Specifically, petitioners outlined products which have been worked after rolling)—for example, products which available evidence in support of rolling)—for example, products which have been bevelled or rounded at the collapsing and requested that the have been bevelled or rounded at the edges. Excluded is grade X–70 plate. Department collect more data and edges. Excluded are flat-rolled steel These HTS item numbers are provided examine the issue in greater detail. As products either plated or coated with for convenience and Customs purposes. a result, the Department has undertaken tin, lead, chromium, chromium oxides, The written description remains a detailed analysis of the relationship both tin and lead (‘‘terne plate’’), or both dispositive. between CCC and Stelco. Based on our chromium and chromium oxides (‘‘tin- The POR is February 4, 1993, through analysis, we determined that CCC and free steel’’), whether or not painted, July 31, 1994. Stelco are ‘‘related parties’’, but that varnished or coated with plastics or United States Price CCC and Stelco should not be collapsed other nonmetallic substances in because the two companies do not make addition to the metallic coating. Also The Department used purchase price, comparable products such that a shift in excluded are clad products in straight in accordance with section 772(b) of the production could be accomplished lengths of 0.1875 inch or more in Act, when the subject merchandise was without fundamental and expensive composite thickness and of a width sold to unrelated purchasers in the retooling. (See Memorandum to the File which exceeds 150 millimeters and United States. For Stelco, where certain dated May 22, 1995). measures at least twice the thickness. corrosion-resistant sales to the first Scope of the Review Also excluded are certain clad stainless unrelated purchaser took place after flat-rolled products, which are three- importation into the United States, we The products covered by these also based USP on exporters sales price administrative reviews constitute two layered corrosion-resistant carbon steel flat-rolled products less than 4.75 (ESP), in accordance with section 772(c) separate ‘‘classes or kinds’’ of of the Act. merchandise: (1) Certain corrosion- millimeters in composite thickness that consist of a carbon steel flat-rolled We adjusted USP for value-added resistant steel and (2) certain cut-to- taxes (VAT) in accordance with our length plate. product clad on both sides with stainless steel in a 20%-60%-20% ratio. practice as outlined in various The first class or kind includes flat- determinations, including rolled carbon steel products, of These HTS item numbers are provided for convenience and Customs purposes. Silicomanganese from Venezuela, Final rectangular shape, either clad, plated, or Determination of Sales at Less Than coated with corrosion-resistant metals The written description remains dispositive. Fair Value, 59 FR 55435, 55439 such as zinc, aluminum, or zinc-, (November 7, 1994). aluminum-, nickel- or iron-based alloys, The second class or kind, certain cut- whether or not corrugated or painted, to-length plate, includes hot-rolled Algoma varnished or coated with plastics or carbon steel universal mill plates (i.e., The Department used purchase price, other nonmetallic substances in flat-rolled products rolled on four faces as defined in section 772(b) of the Tariff addition to the metallic coating, in coils or in a closed box pass, of a width Act, in calculating USP for Algoma. USP (whether or not in successively exceeding 150 millimeters but not was based on packed prices to superimposed layers) and of a width of exceeding 1,250 millimeters and of a customers in the United States. For 0.5 inch or greater, or in straight lengths thickness of not less than 4 millimeters, terms of sale, please see Analysis which, if of a thickness less than 4.75 not in coils and without patterns in Memorandum to the File, June 16, 1995. millimeters, are of a width of 0.5 inch relief), of rectangular shape, neither We made deductions from purchase or greater and which measures at least clad, plated nor coated with metal, price for movement expenses, U.S. 10 times the thickness or if of a whether or not painted, varnished, or Customs duties and fees, U.S. thickness of 4.75 millimeters or more coated with plastics or other brokerage/handling fees, U.S. inland are of a width which exceeds 150 nonmetallic substances; and certain hot- freight expense. We added to purchase millimeters and measures at least twice rolled carbon steel flat-rolled products price amounts for freight revenue, the thickness, as currently classifiable in in straight lengths, of rectangular shape, brokerage and duty revenue and billing the Harmonized Tariff Schedule (HTS) hot rolled, neither clad, plated, nor adjustments. under item numbers 7210.31.0000, coated with metal, whether or not We used as date of sale the date of 7210.39.0000, 7210.41.0000, painted, varnished, or coated with contract (if there was one that set 7210.49.0030, 7210.49.0090, plastics or other nonmetallic substances, quantity and value) or, if there was no Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42513 such contract, the order date on which shipment as date of sale because: (1) selling expenses such as technical price and quantity were fixed. Order acknowledgements did not set services, inventory carrying costs, price; and (2) Dofasco informed its warehousing expenses, and bad debt; CCC customers that ‘‘invoices will reflect and commissions incurred in the U.S. The Department used purchase price prices at time of shipment.’’ For market. as defined in section 772(b) of the Tariff Dofasco’s sales made pursuant to long- In addition, we made further Act, in calculating USP for CCC. USP term contracts, we used date of the deductions from ESP, where was based on packed, FOB or delivered contract as date of sale because the appropriate, for all value added to the prices to customers in the United States. contract terms fixed price and quantity. ‘‘corrosion-resistant’’ steel in the United We made deductions from purchase For Sorevco, we used the date of order States, pursuant to section 772(e)(3) of price for movement expenses (U.S. and confirmation as the date of sale because the Act. The value added consists of the foreign movement, brokerage, and Sorevco acknowledges both price and costs associated with the production of handling), and discounts and rebates. quantity on its order acknowledgement. the further manufactured products, We used the date of invoice as the date When Sorevco shipped more other than the costs associated with the of sale for both U.S. sales and home merchandise than the customer ordered, imported ‘‘corrosion-resistant’’ steel, market sales because that is the date and such shipments were in excess of and a proportional amount of any profit when price and quantity are fixed. accepted industry tolerances, we used related to the further manufacture. Profit CCC was unable to report duty and date of shipment as date of sale for the was calculated by deducting all brokerage paid for certain U.S. sales. As excess merchandise. applicable expenses from the sales partial best information available (BIA) MRM price. The total profit was then allocated we used the highest duty rate proportionally to all components of calculation submitted by CCC to The Department used purchase price, cost. Only the profit attributable to the calculate duty and brokerage rates for as defined in section 772(b) of the Tariff value added was deducted from ESP. the missing values. See, e.g., Certain Act, in calculating USP for MRM. USP Because Stelco USA contracts the Steel Products from France, 58 FR was based on packed, delivered prices further manufacturing, and its function 37125, 37129 (July 9, 1993). to customers in the United States. is primarily that of a sales office, the Dofasco/Sorevco We made deductions from purchase company does not provide selling, price for brokerage and handling, The Department used purchase price, general and administrative (SG&A) movement expenses, U.S. duties and expenses directly attributed to further as defined in section 772(b) of the Tariff discounts. Act, in calculating USP for Dofasco. manufacturing. In place of allocating We used the date of shipment as the certain SG&A expenses to further USP was based on packed prices to date of sale for both U.S. sales and home customers in the United States. As in manufacturing calculation, we have market sales because that is the date made an adjustment to the ESP sales the LTFV investigation, the Department when price and quantity were fixed. used Dofasco’s five reported levels of listing to account for SG&A expenses. trade in which, according to Dofasco, Stelco Foreign Market Value pricing structure differs according to The Department used purchase price, In calculating FMV, the Department customer type: automotive, as defined in section 772(b) of the Tariff used home market sales or constructed construction, service center, Act, in calculating USP for Stelco for value (CV), as defined in section 773 of manufacturing, and converter. cut-to-length plate. USP was based on the Act. We made deductions from purchase packed, delivered prices to customers in price for two types of discounts, one the United States. To determine whether there was type of rebate and total freight (for one We made deductions from purchase sufficient volume of sales in the home term of sale). U.S. further processing price for movement expenses, brokerage market to serve as the basis for expenses for certain sales are not treated and U.S. duties. calculating FMV, we compared the as part of the purchase price for the In calculating USP for sales of volume of home market sales to the reasons set forth in the memorandum corrosion-resistant steel, the Department volume of third country sales, in from Edward Yang to Roland used purchase price, as defined in accordance with section 773(a)(1) of the MacDonald. section 772(b) of the Act. USP was Tariff Act. We found that sales in the For Dofasco’s sales of secondary based on packed, delivered prices to home market constituted a sufficient merchandise, the Department customers in the United States. basis for FMV, in accordance with 19 determined at verification that only six We made deductions from purchase CFR 353.48(a). of the eleven product characteristics price for movement expenses, Algoma, Dofasco, MRM and Stelco were reported accurately: type, process, brokerage, U.S. duties and discounts made home market sales to related coating metal, thickness, width, and and rebates. customers. In order to determine form. Thus, the Department performed The Department also used ESP, as whether sales to related parties might be its model match for these sales based defined in section 772(c) of the Act, in appropriate to use as the basis of FMV, only on these six characteristics. For a calculating USP for Stelco for corrosion- the Department compared prices of general discussion of the Department’s resistant steel. USP was based on those sales to prices to unrelated parties, treatment of secondary merchandise in packed, delivered prices to customers in on a model-by-model basis. When this review, see the Department’s April the United States. possible, the Department used unrelated 19, 1995 decision memorandum. We made deductions from ESP for party sales at the same level of trade as For Dofasco, we used the date of order movement expenses (U.S. and foreign the related party sales for this acknowledgement as date of sale for all movement expenses, brokerage and comparison. sales made after July 4, 1993 (except handling); discounts and rebates; U.S. In accordance with 19 CFR 353.58 sales made pursuant to long-term direct selling expenses such as and 353.55, we compared U.S. sales to contracts) because this was the time at warranties and service, billing home market sales made at the same which price and quantity were fixed. corrections, other expenses (slitting and level of trade, and in comparable Prior to July 4, 1993, we used date of sheeting); credit expenses; U.S. indirect commercial quantities, where possible. 42514 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Based on a review of the respondents’ below COP, provided that they were determinations, including submissions, the Department made over an extended period of time. Silicomanganese from Venezuela, Final determined that the respondents did not For each model for which 90 percent or Determination of Sales at Less Than have to report any downstream sales more of the home market sales during Fair Value, 59 FR 55435, 55439 through related parties since either there the POR were priced below COP and (November 7, 1994). were no sales to related parties that are were made over an extended period of Algoma resold to unrelated customers as subject time, we disregarded all sales of that merchandise or sales to related parties model in our calculation and, in In accordance with section 773 of the that are resold to unrelated parties are accordance with section 773(b) of the Tariff Act, for those U.S. models for a small percentage of home market Tariff Act, we used the CV of those which we were able to find a home- sales. models, as described below. See, e.g., market such-or-similar match, we The Department is treating certain Mechanical Transfer Presses from calculated FMV based on the packed, product groups, which included certain Japan, Final Results of Antidumping FOB or delivered prices to related and grades of non-prime material or Duty Administrative Review, 59 FR 9958 unrelated purchasers in the home secondary merchandise, as non-prime (March 2, 1994). market. We used prices to related material for purposes of matching U.S. In accordance with section 773(b)(1) purchasers only if such prices were and home market sales. of the Tariff Act, to determine whether made at arm’s length. We made Based on the Department’s previous sales below cost had been made over an adjustments, where applicable, for determination of sales made at below extended period of time, we compared inland freight, home market packing the cost of production (COP) in the the number of months in which sales costs, discounts and rebates, home original LTFV investigation in below cost had occurred for a particular market direct selling expenses such as accordance with section 773(b) of the model to the number of months in credit and warranty expenses. We made Tariff Act, we determined that there which the model was sold. If the model circumstances-of-sale adjustments for were reasonable grounds to believe or was sold in fewer than three months, we differences in physical characteristics. suspect that, for this review period, did not disregard below-cost sales For comparison to purchase price sales, Stelco and CCC had made sales of unless there were below-cost sales of pursuant to section 773 of the Tariff Act, subject merchandise in the home market that model in each month sold. If a we made circumstance-of-sale at prices less than the COP. As a result, model was sold in three or more adjustments to FMV for commissions we investigated whether Stelco and CCC months, we did not disregard below- incurred in the U.S. market, U.S. credit, sold such or similar merchandise in the cost sales unless there were sales below warranty. We also adjusted FMV for home market at prices below the COP. cost in at least three of the months in packing expenses. In accordance with 19 CFR 353.51(c), which the model was sold. We used CV CCC we calculated COP for Stelco and CCC as the basis for FMV when an as the sum of reported materials, labor, insufficient number of home market In accordance with section 773 of the factory overhead, and general expenses. sales were made at prices above COP. Tariff Act, for those U.S. models for We compared COP to home market See, e.g., Tapered Roller Bearings and which we were able to find a home prices, net of price adjustments, Parts Thereof, Finished and Unfinished, market such or similar match, we discounts, and movement expenses. From Japan and Tapered Roller calculated FMV based on the packed, Based on petitioners’ allegations, and Bearings, Four Inches or Less in Outside FOB or delivered prices to related and in accordance with section 773(b) of the Diameter, and Components Thereof, unrelated purchasers in the home Act, the Department initiated an From Japan; Final Results of market. We used prices to related investigation to determine whether Antidumping Duty Administrative purchasers only if such prices were Dofasco and Sorevco had home market Review, 58 FR 64720, 64729 (Dec. 8, made at arm’s length. We made sales of corrosion-resistant steel and 1993). adjustments, where applicable, for whether Algoma and MRM had home We also used CV as FMV for those inland freight, home market packing market sales of cut-to-length plate that U.S. sales for which there were costs, discounts and rebates, direct were made at prices less than the COP. insufficient sales of the comparison selling expenses (warranties and credit), In accordance with section 773(b) of home market model at or above COP and packing expenses. We made the Tariff Act, in determining whether and for those U.S. sales for which there circumstance-of-sale adjustments to to disregard home market sales made at was no contemporaneous sale of such or FMV for differences in physical prices below the COP, we examined similar merchandise in the home characteristics. For comparison to whether such sales were made in market. We calculated CV in accordance purchase price sales, pursuant to section substantial quantities over an extended with section 773(e) of the Tariff Act. We 773 of the Tariff Act, we made period of time, and whether such sales included the cost of materials, labor, circumstance-of-sale adjustments to were made at prices which permitted and factory overhead in our FMV for U.S. direct selling expenses recovery of all costs within a reasonable calculations. Where the general such as warranties, warehousing, credit, period of time in the normal course of expenses were less than the statutory and commissions which were paid in trade. minimum of 10 percent of the cost of the U.S. market. We also adjusted FMV In accordance with our normal manufacture (COM), we calculated for U.S. packing expenses. When practice, for each model for which less general expenses as 10 percent of the comparisons were made to PP sales on than 10 percent, by quantity, of the COM. Where the actual profits were less which commissions were paid, we made home market sales during the POR were than the statutory minimum of eight an adjustment for home market indirect made at prices below COP, we included percent of the COM plus general selling expenses to offset U.S. all sales of that model in the expenses, we calculated profit as eight commissions. U.S. sales of merchandise computation of FMV. For each model percent of the sum of COM plus general that was further processed in the United for which 10 percent or more, but less expenses. States were matched to home market than 90 percent, of the home market We adjusted FMV for value-added sales of merchandise identical or similar sales during the POR were priced below taxes (VAT) in accordance with our to the subject merchandise as it entered COP, we excluded those sales priced practice as outlined in various the United States. In such cases, we Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42515 adjusted FMV to account for the further made at arm’s length. We made For Stelco’s ESP sales of corrosion- processing in the United States. deductions, where applicable, for inland resistant steel, pursuant to section freight, rebates, home market direct 773(a)(4)(B) of the Act and 19 CFR Dofasco/Sorevco selling expenses such as credit expenses 353.56(a)(2) we made adjustments, In accordance with section 773 of the and commissions incurred in the home where applicable, for inland freight, Tariff Act, for those U.S. models for market. We also adjusted FMV for discounts and rebates, packing which we were able to find a home differences in physical characteristics. expenses, home market direct selling market such or similar match and for For comparison to purchase price sales, expenses such as credit expenses and which there were sufficient above-cost pursuant to section 773 of the Tariff Act, warranty expenses, home market sales, we calculated FMV based on we made circumstance-of-sale indirect selling expenses such as packed prices to customers. We made adjustments to FMV for commissions technical services, inventory carrying adjustments, where applicable, for incurred in the U.S. market, and U.S. costs, warehousing expenses, and Sorevco rebates, one customer-specific credit expenses. commissions. We also adjusted FMV for Dofasco rebate, four types of discounts, Stelco differences in physical characteristics. warranties, royalty payments for one For comparison to ESP sales, we made product type, warehousing, imputed In accordance with section 773 of the circumstance-of-sale adjustments for home market credit expenses, home Tariff Act, for those U.S. models for home market indirect selling expenses, market packing expenses and certain which we were able to find a home including, home market technical rebates which we reclassified as post market such or similar match that had services, inventory carrying costs and sale price adjustments. Additionally, for sufficient above-cost sales, we presale warehousing expenses up to the one term of sale we deducted inland calculated FMV based on packed, amount of indirect selling expenses and freight. As in the LTFV investigation, delivered or ex-factory prices to related commissions incurred on U.S. sales. We the Department used Dofasco’s five and unrelated purchasers in the home also adjusted FMV for U.S. packing reported levels of trade in which, market. We used prices to related expenses. according to Dofasco, pricing structure purchasers only if such prices were differs according to customer type: made at arm’s length. For Stelco’s sales In addition, we made further automotive, construction, service center, of cut-to-length plate, we made deductions from ESP, where manufacturing, and converter. adjustments, where applicable, for appropriate, for all value added to the We also made circumstance-of-sale inland freight, discounts and rebates, corrosion-resistant steel in the United adjustments, where appropriate, for packing expenses, home market direct States, pursuant to section 772(e)(3) of imputed U.S. credit expenses, U.S. selling expenses such as credit expenses the Act. warranty expenses, foreign warehousing and warranty expenses. We also Preliminary Results of Review expenses for U.S. sales and U.S. royalty adjusted FMV for differences in expenses (for one product type). We also physical characteristics. For comparison As a result of our comparisons of USP adjusted for U.S. duty and brokerage to purchase price sales, pursuant to and FMV, we preliminarily determine (where applicable), U.S. packing section 773 of the Tariff Act, we made that the following margins exist for the expenses, differences in merchandise circumstance-of-sale adjustments to period February 4, 1993, through July (when less than 20%) for similar FMV for U.S. warranty expenses and 31, 1994: products, and U.S. commissions. When U.S. credit expenses. We also adjusted comparisons were made to purchase FMV for U.S. packing expenses. Margin Manufacturer/Exporter (percent) price sales on which commissions were For Stelco’s sales of corrosion- paid, we made an adjustment for home resistant steel, in accordance with Corrosion-Resistant Steel: market indirect selling expenses to section 773 of the Tariff Act, for those Dofasco, Inc...... 3.87 offset U.S. commissions. U.S. models for which we were able to Continuous Colour Coat ...... 1.88 For Dofasco’s sales of secondary find a home market such or similar Stelco, Inc...... 13.95 merchandise, the Department match, we calculated FMV based on the Cut-to-Length Plate: determined at verification that only six packed, delivered or ex-factory prices to Algoma Steel Inc...... 2.61 of the eleven product characteristics related and unrelated purchasers in the Manitoba Rolling Mills ...... 2.44 were reported accurately: type, process, home market. We used prices to related Stelco, Inc...... 0.39 coating metal, thickness, width, and purchasers only if such prices were form. Thus, the Department performed made at arm’s length. We made Interested parties may request its model match for these sales based adjustments, where applicable, for disclosure within 5 days of the date of only on these six characteristics. For a inland freight, discounts and rebates, publication of this notice and may general discussion of the Department’s packing expenses, home market direct request a hearing within 10 days of treatment of secondary merchandise in selling expenses such as credit expenses publication. Any hearing, if requested, this review, see the Department’s April and warranty expenses, home market will be held 44 days after the date of 19, 1995 decision memorandum. indirect selling expenses such as publication, or the first business day technical services, inventory carrying thereafter. Case briefs and/or written MRM costs, warehousing expenses and comments from interested parties may In accordance with section 773 of the commissions incurred in the home be submitted no later than 30 days after Tariff Act, for those U.S. models for market. We also adjusted FMV for the date of publication date. Rebuttal which we were able to find a home differences in physical characteristics. briefs and rebuttals to written market such or similar match that had For comparison to purchase price sales, comments, limited to issues raised in sufficient above-cost sales, we pursuant to section 773 of the Tariff Act, those comments, may be filed not later calculated FMV based on the packed, we made for circumstance-of-sale than 37 days after the date of FOB or delivered prices to related and adjustments for U.S. warranty expenses, publication of this notice. The unrelated purchasers in the home U.S. credit expenses and U.S. sales Department will publish the final market. We used prices to related commissions. We also adjusted FMV for results of these administrative reviews purchasers only if such prices were U.S. packing expenses. 42516 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices issues raised in any such written [A±570±803] Shandong Machinery Import & Export comments or at a hearing. Corporation (SMC), requested that we The Department shall determine, and Heavy Forged Hand Tools, Finished or conduct administrative reviews of their the Customs Service shall assess, Unfinished, With or Without Handles, exports of subject merchandise to the antidumping duties on all appropriate From the People's Republic of China; United States. We published the notice entries. Individual differences between Preliminary Results and Termination in of initiation of these antidumping duty the USP and the FMV may vary from the Part of Antidumping Duty administrative reviews on March 14, percentages stated above. Administrative Reviews 1994 (59 FR 11768). The notice of Furthermore, the following deposit AGENCY: Import Administration, initiation was amended on June 15, requirements will be effective for all International Trade Administration, 1994 (59 FR 30770) and July 15, 1994 shipments of the subject merchandise Department of Commerce. (59 FR 36160). The Department is entered, or withdrawn from warehouse, conducting these administrative reviews ACTION: Notice of preliminary results for consumption on or after the and termination in part of antidumping in accordance with section 751 of the publication date of the final results of duty administrative reviews. Tariff Act of 1930, as amended (the Act). these administrative reviews, as Termination of Review in Part provided by section 751(a)(1) of the SUMMARY: In response to requests by two Tariff Act. A cash deposit of estimated resellers of the subject merchandise, the On June 10, 1994, FMEC withdrew its antidumping duties shall be required on Department of Commerce (the request for a review of the order on shipments of corrosion-resistant steel Department) is conducting picks and mattocks (picks/mattocks), and cut-to-length plate from Canada as administrative reviews of the and SMC withdrew its request for a follows: (1) The cash deposit rates for antidumping duty orders on heavy review of the order on axes, adzes and the reviewed companies shall be those forged hand tools, finished or other similar hewing tools (axes/adzes). rates established in the final results of unfinished, with or without handles, Given the early stage of review at the this review; (2) for previously reviewed (HFHTs) from the People’s Republic of time of FMEC’s and SMC’s withdrawal or investigated companies not listed China (PRC). The reviews cover two requests, we informed FMEC that it did above, the cash deposit rate will exporters of subject merchandise to the not need to respond to the questionnaire continue to be the company-specific rate United States and the period February 1, with respect to picks/mattocks, and we published for the most recent period; (3) 1993, through January 31, 1994. The informed SMC that it did not need to if the exporter is not a firm covered in reviews indicate the existence of respond to the questionnaire with these reviews or the original LTFV dumping margins during the period of regard to axes/adzes. See File investigations, but the manufacturer is, review. Memorandum from Karin Price, dated the cash deposit rate will be the rate We have preliminarily determined July 5, 1994, ‘‘Telephone conversation established for the most recent period that sales have been made below the regarding the withdrawal requests of for the manufacturer of the foreign market value (FMV). If these respondents in the third administrative merchandise; and (4) if neither the preliminary results are adopted in our reviews of heavy forged hand tools, exporter nor the manufacturer is a firm final results of administrative reviews, finished or unfinished, with or without covered in these reviews, the cash we will instruct U.S. Customs to assess handles, from the People’s Republic of deposit rate will be the ‘‘all others’’ rate antidumping duties equal to the China,’’ which is on file in the Central from the LTFV investigations See Final difference between United States price Records Unit (room B–099 of the Main Determination of Sales at Less Than (U.S. price) and FMV. Commerce Building). We hereby are Fair Value: Certain Corrosion-Resistant Interested parties are invited to terminating the review of the order on Carbon Steel Flat Products, and Certain comment on these preliminary results. picks/mattocks with respect to FMEC and the review of the order on axes/ Cut-to-Length Carbon Steel Plate from EFFECTIVE DATE: August 16, 1995. adzes with respect to SMC, in Canada, 58 FR 37099, 37121 (July 9, FOR FURTHER INFORMATION CONTACT: accordance with 19 CFR 353.22(a)(5). 1993). Karin Price or Maureen Flannery, Office This notice also serves as a of Antidumping Compliance, Import Scope of These Reviews preliminary reminder to importers of Administration, International Trade Imports covered by these reviews are their responsibility under 19 CFR Administration, U.S. Department of shipments of HFHTs from the PRC 353.26 to file a certificate regarding the Commerce, 14th Street and Constitution comprising the following classes or reimbursement of antidumping duties Avenue, N.W., Washington D.C. 20230; kinds of merchandise: (1) hammers and prior to liquidation of the relevant telephone: (202) 482–4733. sledges with heads over 1.5 kg. (3.33 entries during this review period. pounds) (hammers/sledges); (2) bars Failure to comply with this requirement SUPPLEMENTARY INFORMATION: over 18 inches in length, track tools and will result in the Department’s Background wedges (bars and wedges); (3) picks/ presumption that reimbursement of On February 19, 1991, the Department mattocks; and (4) axes/adzes. antidumping duties occurred and the published in the Federal Register (56 HFHTs include heads for drilling, subsequent assessment of double FR 6622) the antidumping duty orders hammers, sledges, axes, mauls, picks, antidumping duties. on HFHTs from the PRC. On February and mattocks, which may or may not be This administrative review and notice 4, 1994, the Department published in painted, which may or may not be are in accordance with section 751(a)(1) the Federal Register (59 FR 5390) a finished, or which may or may not be of the Act (19 U.S.C. 1675(a)(1)) and 19 notice of opportunity to request imported with handles; assorted bar CFR 353.22. administrative reviews of these products and track tools including Dated: August 8, 1995. antidumping duty orders. On February wrecking bars, digging bars and Susan G. Esserman, 28, 1994, in accordance with 19 CFR tampers; and steel woodsplitting Assistant Secretary for Import 353.22(a), two resellers of the subject wedges. HFHTs are manufactured Administration. merchandise to the United States, through a hot forge operation in which [FR Doc. 95–20210 Filed 8–15–95; 8:45 am] Fujian Machinery & Equipment Import steel is sheared to required length, BILLING CODE 3510±DS±P & Export Corporation (FMEC) and heated to forging temperature and Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42517 formed to final shape on forging whether each exporter has autonomy in questionnaire that ESP sales, i.e., sales equipment using dies specific to the making decisions regarding the made to unrelated purchasers in the desired product shape and size. selection of management; and (4) United States after the date the Depending on the product, finishing whether each exporter has the authority merchandise was imported into the operations may include shot blasting, to negotiate and sign contracts. United States by or for the account of grinding, polishing and painting, and We have found that the evidence on the exporter, be reported. In our the insertion of handles for handled the record demonstrates an absence of supplemental questionnaire, we asked products. HFHTs are currently provided government control, both in law and in SMC to report any ESP sales of subject for under the following Harmonized fact, with respect to FMEC’s and SMC’s merchandise made by Pacific Tools to Tariff System (HTS) subheadings: exports according to the criteria unrelated customers in the United 8205.20.60, 8205.59.30, 8201.30.00, and identified in Sparklers and Silicon States during the period of review and 8201.40.60. Specifically excluded are Carbide for this period of review. For to answer all questions in the original hammers and sledges with heads 1.5 kg. further discussion of the Department’s questionnaire regarding these sales. (3.33 pounds) in weight and under, hoes preliminary determination that FMEC When it reported these ESP sales in its and rakes, and bars 18 inches in length and SMC are entitled to separate rates, supplemental questionnaire response, and under. see Decision Memorandum to Holly A. SMC did not report any movement These reviews cover two exporters of Kuga, Director, Office of Antidumping expenses for these sales, stating that HFHTs from the PRC, FMEC and SMC. Compliance, dated July 21, 1995, these expenses had been reported in a The review period is February 1, 1993, ‘‘Separate rates for Fujian Machinery & questionnaire response submitted for through January 31, 1994. Equipment Import & Export Corporation the previous administrative reviews of and Shandong Machinery Import & Separate Rates this case. Since movement expenses Export Corporation in the third were not reported for the record of these The business licenses of both FMEC administrative reviews of heavy forged reviews, as best information available and SMC indicate that they are owned hand tools, finished or unfinished, with (BIA), we applied a weighted-average by ‘‘all the people.’’ As stated in the or without handles, from the People’s ocean freight rate derived from those PP Notice of Final Determination of Sales Republic of China,’’ which is on file in sales for which we used actual ocean at Less Than Fair Value: Silicon Carbide the Central Records Unit (room B–099 of freight rates to adjust for ocean freight, from the People’s Republic of China (59 the Main Commerce Building). and we used surrogate values to make FR 22585, May 2, 1994) (Silicon United States Price deductions for all other applicable Carbide), ‘‘ownership by ‘all of the movement expenses. We also made a people’ does not require the application The Department used purchase price deduction for U.S. duties. of a single rate.’’ Accordingly, FMEC and exporter’s sales price (ESP), in and SMC are eligible for consideration accordance with sections 772 (b) and (c) Foreign Market Value for separate rates. of the Act, in calculating U.S. price. We For companies located in NME To establish whether a company is made deductions from purchase price countries, section 773(c)(1) of the Act sufficiently independent to be entitled and ESP sales, where appropriate, for provides that the Department shall to a separate rate, the Department brokerage and handling, foreign inland determine FMV using a factors of analyzes each exporting entity under the freight, ocean freight, and marine production methodology if (1) the test established in the Final insurance. Ocean freight services were merchandise is exported from a NME Determination of Sales at Less Than provided by both PRC-owned and non- country, and (2) the information does Fair Value: Sparklers from the People’s PRC-owned companies. Where we knew not permit the calculation of FMV using Republic of China (56 FR 20588, May 6, that the company providing the ocean home market prices, third country 1991) (Sparklers), as amplified in freight services was not a PRC-owned prices, or constructed value (CV) under Silicon Carbide. Under this policy, company, we used the actual rates section 773(a) of the Act. exporters in non-market-economy charged; for ocean freight services In every case conducted by the (NME) countries are entitled to separate, provided by PRC-owned companies, we Department involving the PRC, the PRC company-specific margins when they applied a weighted-average ocean has been treated as an NME country. can demonstrate an absence of freight rate derived from those sales for None of the parties to these proceedings government control, both in law and in which we used actual ocean freight has contested such treatment in these fact, with respect to exports. Evidence rates. Since marine insurance services reviews. Accordingly, we calculated supporting, though not requiring, a were provided by PRC-owned FMV in accordance with section 773(c) finding of de jure absence of companies, we based the deduction for of the Act and section 353.52 of the government control includes: (1) an marine insurance on surrogate values. Department’s regulations. We absence of restrictive stipulations We also used surrogate data to value determined that India is comparable to associated with an individual exporter’s foreign inland freight and brokerage and the PRC in terms of per capita gross business and export licenses; (2) any handling. We selected India as the national product (GNP), the growth rate legislative enactments decentralizing surrogate country for reasons explained in per capita GNP, and the national control of companies; and (3) any other in the ‘‘Foreign Market Value’’ section distribution of labor, and is a significant formal measures by the government of this notice. producer of comparable merchandise. decentralizing control of companies. De Complete sales data for SMC’s ESP For further discussion of the facto absence of government control sales have not been provided to the Department’s selection of India as the with respect to exports is based on four Department, despite the Department’s primary surrogate country, see File criteria: (1) whether the export prices requests for such data. In its original Memorandum from Karin Price, dated are set by or subject to the approval of questionnaire response, SMC did not June 13, 1994, ‘‘Telephone a government authority; (2) whether report its ESP sales, stating that SMC conversations regarding the surrogate each exporter retains the proceeds from did not sell the subject merchandise to country selection in the third its sales and makes independent its U.S. subsidiary, CMC Pacific Tools, administrative reviews of heavy forged decisions regarding the disposition of Inc. (Pacific Tools) during the period of hand tools, finished or unfinished, with profits and financing of losses; (3) review, despite the request in the or without handles, from the People’s 42518 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Republic of China,’’ which is on file in used to remove oxidization from the publication Energy Indicators of the Central Records Unit (room B–099 of tool heads and detergent used to clean Developing Member Countries of Asian the Main Commerce Building), with the tool heads in factory overhead as Development Bank, July 1992. We attached Memorandum to Laurie these materials are not physically adjusted the value of electricity to Lucksinger, dated March 18, 1993, ‘‘AD incorporated into the subject reflect inflation through 1992 and 1993 Order on Heavy Forged Hand Tools merchandise. using WPI published by the IMF. from the People’s Republic of China • For selling, general and • To value truck freight, we used the (case #A–570–803): Nonmarket- administrative (SG&A) expenses, we rates reported in a June 1992 cable from Economy Status and Surrogate Country used information obtained from the the U.S. Embassy in India submitted for Determinations.’’ December 1992 and September 1994 the Final Determination of Sales at Less For purposes of calculating FMV, we Reserve Bank of India Bulletin. We Than Fair Value: Sulfanilic Acid from valued PRC factors of production in the calculated an SG&A rate by dividing the People’s Republic of China (57 FR year in which production occurred as SG&A expenses by the cost of 29705, July 6, 1992) and an August 1993 follows, in accordance with section manufacture. Since the calculated SG&A cable from the U.S. Embassy in India 773(c)(1) of the Act: expense rate is less than 10 percent, we submitted for the Final Determination of • To value all direct materials used in used the statutory minimum of 10 Sales at Less Than Fair Value: Certain the production of HFHTs, including percent to calculate SG&A expenses. Helical Spring Lock Washers from the steel, resin glue, paint, varnish, wood • To calculate a profit rate, we used People’s Republic of China (58 FR for handles, iron wedges, anti-rust oil, information obtained from the 48833, September 20, 1993). scrap steel, and dilution, we used the December 1992 and September 1994 • To value rail freight, we used the rupee per metric ton, per kilogram, or Reserve Bank of India Bulletin. We price reported in a December 1989 cable per cubic meter value of imports into calculated a profit rate by dividing the from the U.S. Embassy in India India during April-December 1992, for before-tax profit by the sum of those submitted for the Final Results of production in 1992, and during April components pertaining to the cost of Antidumping Duty Administrative 1993–January 1994, for production in manufacturing plus SG&A. Since the Review: Shop Towels of Cotton from the 1993, obtained from the Monthly calculated profit rate is less than 8 People’s Republic of China (56 FR 4040, Statistics of the Foreign Trade of India, percent, we used the statutory minimum February 1, 1991). We adjusted the rail Volume II—Imports, December 1992, of 8 percent to calculate profit. freight rates to reflect inflation through and the Monthly Statistics of the Foreign • To value the packing materials, 1992 and 1993 using WPI published by Trade of India, Volume II—Imports, including cartons (except for imported the IMF. March 1994, respectively (Indian Import cartons used at some of the factories), Statistics). Some of the factories in the pallets, anti-rust paper, anti-damp Currency Conversion PRC used imported steel for producing paper, plastic and iron straps, plastic We made currency conversions in HFHTS, and, in these instances, we bags, iron buttons and knots, synthetic accordance with 19 CFR 353.60(a). used the import price of the steel to fiber, and iron wire, we used import Currency conversions were made at the value the relevant portion of steel which statistics for India obtained from the rates certified by the Federal Reserve was imported. We made adjustments to Indian Import Statistics. We adjusted Bank. include freight costs incurred between these values to include freight costs the suppliers and the HFHT factories. incurred between the suppliers and the Best Information Available We also made an adjustment to the steel HFHT factories. Some of the factories SMC did not provide factors-of- input factor for scrap and waste steel used imported cartons for packing, and, production data for one model, sales of which was sold. in these instances, we used the import which were first reported to the • For direct labor, we used the labor price of the cartons to value the relevant Department in SMC’s supplemental rates reported in the Business percentage of cartons which was questionnaire response. Since U.S. sales International Corporation reports IL&T imported. data for this model were submitted India, released November 1992 and • To value coal, we used the price of without the data necessary for the November 1993. This source breaks out steam coal reported for 1990 in the calculation of FMV, we must rely upon labor rates between skilled, unskilled, International Energy Agency publication BIA, in accordance with section 776(1) semi-skilled, and foreman labor for 1993 Energy Prices and Taxes, 2nd Quarter of the Act, for these sales. As BIA, we and provides information on the 1994. We adjusted the value of coal to are assigning a rate of 31.76 percent, number of labor hours worked per week. reflect inflation through 1992 and 1993 which is the rate from the LTFV • For factory overhead, we used using wholesale price indices of India investigation for this class or kind of information reported in the December (WPI) as published in the International merchandise. 1992 and September 1994 Reserve Bank Financial Statistics by the International Preliminary Results of the Reviews of India Bulletin. From this information, Monetary Fund (IMF). we were able to determine factory • To value electricity, we used the As a result of our reviews, we overhead as a percentage of total cost of price of electricity for 1990 reported in preliminarily determine that the manufacture. We included steel pellets the Asian Development Bank following margins exist: Margin Manufacturer/exporter Time period (percent) Fujian Machinery & Equipment Import & Export Corporation: Axes/Adzes ...... 2/1/93±1/31/94 11.72 Bars/Wedges ...... 2/1/93±1/31/94 30.40 Hammers/Sledges ...... 2/1/93±1/31/94 12.17 Shandong Machinery Import & Export Corporation: Bars/Wedges ...... 2/1/93±1/31/94 28.54 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42519 Margin Manufacturer/exporter Time period (percent) Hammers/Sledges ...... 2/1/93±1/31/94 7.26 Picks/Mattocks ...... 2/1/93±1/31/94 36.92 Parties to the proceedings may request Notification of Interested Parties Interested parties are invited to disclosure within 5 days of the date of This notice serves as a preliminary comment on these preliminary results. publication of this notice. Any reminder to importers of their EFFECTIVE DATE: August 16, 1995. interested party may request a hearing responsibility under section 353.26 of FOR FURTHER INFORMATION CONTACT: within 10 days of publication. Any the Department’s regulations to file a Donald Little or Maureen Flannery, hearing, if requested, will be held 44 certificate regarding the reimbursement Office of Antidumping Compliance, days after the publication of this notice, of antidumping duties prior to Import Administration, International or the first workday thereafter. liquidation of the relevant entries Trade Administration, U.S. Department Interested parties may submit case briefs during this review period. Failure to of Commerce, 14th Street and within 30 days of the date of publication comply with this requirement could Constitution Avenue NW., Washington of this notice. Rebuttal briefs, which result in the Secretary’s presumption D.C. 20230; telephone (202) 482–4733. must be limited to issues raised in the that reimbursement of antidumping Background case briefs, may be filed not later than duties occurred and the subsequent 37 days after the date of publication. See assessment of double antidumping The Department published in the Federal Register the antidumping duty section 353.38(d) of the Department’s duties. order on HSLWs from the PRC on regulations. The Department will These administrative reviews and October 19, 1993 (58 FR 53914). On publish a notice of final results of these notice are in accordance with section 751(a)(1) of the Act (19 U.S.C. October 7, 1994, the Department administrative reviews, which will published in the Federal Register (59 include the results of its analysis of 1675(a)(1)) and section 353.22 of the Department’s regulations. FR 51166) a notice of opportunity to issues raised in any such comments. request administrative review of the The Department shall determine, and Dated: August 8, 1995. antidumping duty order on HSLWs from the Customs Service shall assess, Susan G. Esserman, the PRC covering the period October 15, antidumping duties on all appropriate Assistant Secretary for Import 1993, through September 30, 1994. entries. Individual differences between Administration. In accordance with 19 CFR U.S. price and FMV may vary from the [FR Doc. 95–20207 Filed 8–15–95; 8:45 am] 353.22(a)(1994), the respondent, ZWG, percentages stated above. The BILLING CODE 3510±DS±P requested that we conduct an Department will issue appraisement administrative review. We published a notice of initiation of this antidumping instructions directly to the Customs A±570±822 Service. duty administrative review on Certain Helical Spring Lock Washers November 14, 1994 (59 FR 56459). The Furthermore, the following deposit Department is conducting this requirements will be effective upon From the People's Republic of China; Preliminary Results of Antidumping administrative review in accordance publication of the final results of these Administrative Review with section 751 of the Tariff Act of administrative reviews for all shipments 1930, as amended (the Act). of HFHTs from the PRC entered, or AGENCY: Import Administration, withdrawn from warehouse, for International Trade Administration, Applicable Statute and Regulations consumption on or after the publication Department of Commerce. Unless otherwise indicated, all date, as provided for by section ACTION: Notice of preliminary results of citations to the statute and the 751(a)(1) of the Act: (1) The cash deposit the antidumping duty administrative Department’s regulations are in rates for the reviewed companies named review. reference to the provisions as they above which have separate rates will be existed on December 31, 1994. SUMMARY: The Department of Commerce the rates for those firms established in Scope of Review the final results of these administrative (the Department) is conducting an administrative review of the The products covered by this review reviews; (2) for all other PRC exporters, antidumping duty order on certain are HSLWs of carbon steel, of carbon the cash deposit rates will be the rates helical spring lock washers (HSLWs) alloy steel, or of stainless steel, heat- established in the LTFV investigations, from the People’s Republic of China treated or non heat-treated, plated or the all-China rates; and (3) the cash (PRC) in response to a request by the non-plated, with ends that are off-line. deposit rates for non-PRC exporters of respondent, Zhejiang Wanxin Group HSLWs are designed to: (1) function as subject merchandise from the PRC will Co., Ltd, (ZWG). This review covers a spring to compensate for developed be the rates applicable to the PRC shipments of this merchandise to the looseness between the component parts supplier of that exporter. The rates United States during the period October of a fastened assembly; (2) distribute the established in the LTFV investigations 15, 1993, through September 30, 1994. load over a larger area for screws or are 45.42 percent for hammers/sledges, We have preliminarily determined bolts; and (3) provide a hardened 31.76 percent for bars/wedges, 50.81 that sales have been made below foreign bearing surface. The scope does not percent for picks/mattocks, and 15.02 market value (FMV). If these include internal or external tooth percent for axes/adzes. These deposit preliminary results are adopted in our washers, nor does it include spring lock requirements, when imposed, shall final results, we will instruct U.S. washers made of other metals, such as remain in effect until publication of the Customs to assess antidumping duties copper. final results of the next administrative equal to the difference between United HSLWs subject to this review are reviews. States price (USP) and FMV. currently classifiable under subheading 42520 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 7318.21.0000 of the Harmonized Tariff Lock Washers From the People’s In every case conducted by the Schedule of the United States (HTS). Republic of China, 58 FR 48833 Department involving the PRC, the PRC Although the HTS subheading is (September 20, 1993) (Lock Washers).) has been treated as an NME country. provided for convenience and Customs We have found that the evidence on the None of the parties to this proceeding purposes, the written description of the record of this review also demonstrates has contested such treatment in this scope of this proceeding is dispositive. an absence of government control, both review. Accordingly, we calculated This review covers one exporter of in law and in fact, with respect to FMV based on factors of production in HSLWs from the PRC, ZWG, and the ZWG’s exports according to the criteria accordance with section 773(c) of the period October 15, 1993, through identified in Sparklers, and an absence Act and section 353.52 of the September 30, 1994. of government control with respect to Department’s regulations. We Separate Rates the additional criteria identified in determined that India is comparable to Silicon Carbide. For further discussion the PRC in terms of per capita gross To establish whether a company of the Department’s preliminary national product (GNP), the growth rate operating in a state-controlled economy determination that ZWG is entitled to a in per capita GNP, and the national is sufficiently independent to be separate rate, see Decision distribution of labor, and is a significant entitled to a separate rate, the Memorandum to Holly A. Kuga, producer of comparable merchandise. Department analyzes each exporting Director, Office of Antidumping For this review, we chose India as the entity under the test established in the Compliance, dated July 21, 1995, most comparable surrogate on the basis Final Determination of Sales at Less ‘‘Separate Rates in the First of the above criteria, and have used Than Fair Value: Sparklers from the Administrative Review of Certain publicly available information relating People’s Republic of China (56 FR Helical Spring Lock Washers from the to India to value the various factors of 20588, May 6, 1991) (Sparklers), as People’s Republic of China,’’ which is production. (See Memorandum from amplified by the Final Determination of on file in the Central Records Unit Director, Office of Policy to Division Sales at Less Than Fair Value: Silicon (room B099 of the Main Commerce Director, Office of Antidumping Carbide from the People’s Republic of Building). Compliance, dated June 9, 1995, ‘‘Lock China (59 FR 22585, May 2, 1994) Washers from the People’s Republic of United States Price (Silicon Carbide). Under this policy, China (PRC): Nonmarket Economy exporters in non-market economies For sales made by ZWG, we based Status and Surrogate Country (NMEs) are entitled to separate, USP on purchase price, in accordance Selection,’’ and the memorandum from company-specific margins when they with section 772(b) of the Act, because the analyst to the file, dated July 20, can demonstrate an absence of the subject merchandise was sold to 1995, ‘‘India: Significant Production of government control, both in law and in unrelated purchasers in the United Comparable Merchandise,’’ which are fact, with respect to exports. Evidence States prior to importation into the on file in the Central Records Unit supporting, though not requiring, a United States. (room B099 of the Main Commerce finding of de jure absence of We calculated purchase price based Building). government control over export on the FOB, CNF, and CIF price to We valued the factors of production activities includes: 1) an absence of unrelated purchasers. We made as follows: restrictive stipulations associated with deductions, where appropriate, for • For steel wire rods, we used a per an individual exporter’s business and brokerage and handling, foreign inland kilogram value obtained from the export licenses; 2) any legislative freight, ocean freight, and marine Monthly Statistics of Foreign Trade of enactments decentralizing control of insurance. We valued brokerage and India for the period April 1993 through companies; and 3) any other formal handling, foreign inland freight, and March 1994. Using wholesale price measures by the government marine insurance deductions using indices (WPI) obtained from the decentralizing control of companies. De surrogate data based on Indian costs. International Financial Statistics, facto absence of government control ZWG reported amounts for ocean freight published by the International Monetary over exports is based on four factors: 1) based, in part, on services provided by Fund (IMF). We adjusted these values to whether each exporter sets its own shipping companies based in the PRC. reflect inflation through the period of export prices independently of the For the portion of the shipment review (POR). We made further government and without the approval of expenses from the PRC port to Hong adjustments to include freight costs a government authority; 2) whether each Kong provided by PRC-owned incurred between the supplier and exporter retains the proceeds from its transportation, we calculated a separate ZWG. sales and makes independent decisions charge using surrogate data based on • For chemicals used in the regarding the disposition of profits or Indian costs. We selected India as the production and plating of HSLWs, we financing of losses; 3) whether each surrogate country for the reasons used per kilogram values obtained from exporter has the authority to negotiate explained in the ‘‘Foreign Market the Monthly Statistics of Foreign Trade and sign contracts and other Value’’ section of this notice. of India. We adjusted these rates to agreements; and 4) whether each reflect inflation through the POR using exporter has autonomy from the Foreign Market Value WPI published by the IMF. We made government regarding the selection of For all companies located in NME further adjustments to include freight management. countries, section 773(c)(1) of the Act costs incurred between the supplier and During the less than fair value (LTFV) provides that the Department shall ZWG. investigation of this case, the determine FMV using a factors-of- • For hydrochloric acid, we based the Department determined that ZWG, then production methodology if (1) the value on an Indian price quote used in known as Hangzhou Spring Washer merchandise is exported from an NME the Final Determination of Sales at Less Plant, warranted a company-specific country, and (2) the information does Than Fair Value: Coumarin from the dumping margin according to the not permit the calculation of FMV using People’s Republic of China (59 FR criteria identified in Sparklers. (See home market prices, third country 66895, December 28, 1994) (Coumarin), Final Determination of Sales at Less prices, or constructed value (CV) under because the Indian Import Statistics for Than Fair Value: Certain Helical Spring section 773(a) of the Act. hydrochloric acid were found to be Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42521 aberrational. We adjusted the value used Region, November 1993. We adjusted instructions directly to the Customs in Coumarin to reflect inflation through the value of water to reflect inflation Service. the POR using WPI published by the through the POR using WPI published Furthermore, the following deposit IMF. by the IMF. rates will be effective upon publication • For direct labor, we used the labor • To value truck and shipping freight, of the final results of this administrative rates reported in the Business we used the rates reported in an August review for all shipments of HSLWs from International Corporation report IL&T 1993 cable from the U.S. Consulate in the PRC entered, or withdrawn from India, released November 1993. This India submitted for Lock Washers. We warehouse, for consumption on or after source breaks out labor rates between adjusted the value to reflect inflation the publication date, as provided for by skilled, unskilled, and semi-skilled through the POR using WPI published section 751(a)(1) of the Act: (1) for ZWG, labor for 1993 and provides information by the IMF. which has a separate rate, the cash on the number of labor hours worked • To value rail freight, we used the deposit rate will be the company- per week. We adjusted these rates to price reported in a December 1989 cable specific rate established in the final reflect inflation through the POR using from the U.S. Embassy in India results of this review; (2) for all other WPI published by the IMF. PRC exporters, the cash deposit rate will • submitted for the Final Results of For factory overhead, we used Antidumping Duty Administrative be 128.63 percent, the rate established information reported in the September Review: Shop Towels of Cotton from the in the LTFV investigation of this case, 1994 Reserve Bank of India Bulletin. People’s Republic of China (56 FR 4040, the PRC rate; and (3) for non-PRC From this information, we were able to February 1, 1991). We adjusted the rail exporters of subject merchandise from determine factory overhead as a freight rates to reflect inflation through the PRC, the cash deposit rate will be percentage of the total surrogate cost of the POR using WPI published by the the rate applicable to the PRC supplier manufacture. • IMF. of that exporter. For selling, general and These deposit rates, when imposed, administrative (SG&A) expenses, we Currency Conversion shall remain in effect until publication used information obtained from the We made currency conversions in of the final results of the next September 1994 Reserve Bank of India accordance with 19 CFR 353.60(a). administrative review. Bulletin. We calculated an SG&A rate by Currency conversions were made at the This notice also serves as a dividing SG&A expenses by the cost of rates certified by the Federal Reserve preliminary reminder to importers of manufacture. Since the calculated SG&A Bank. their responsibility under 19 CFR expense rate is less than 10 percent of 353.26 to file a certificate regarding the the surrogate cost of manufacture, we Preliminary Results of the Review reimbursement of antidumping duties used the statutory minimum of 10 We preliminarily determine that the prior to liquidation of the relevant percent. • following dumping margin exists: entries during this review period. To calculate a profit rate, we used Failure to comply with this requirement information obtained from the Manufac- Margin could result in the Secretary’s September 1994 Reserve Bank of India turer/ex- Time period (per- presumption that reimbursement of Bulletin. We calculated a profit rate by porter cent) antidumping duties occurred and the dividing the before-tax profit by the cost subsequent assessment of double of manufacturing plus SG&A. Since the Zhejiang Wanxin antidumping duties. calculated profit rate is less than 8 This administrative review and notice percent, we used the statutory minimum Group Co., Ltd. . 10/15/93±09/30/94 22.81 are in accordance with section 751(a)(1) of 8 percent to calculate profit. • of the Act (19 U.S.C. 1675(a)(1)) and 19 To value the packing materials, CFR 353.22. including paper cartons, pallets, wood Parties to the proceeding may request brackets, steel straps, plastic bags, and disclosure within 5 days of the date of Dated: August 8, 1995. adhesive tape, we used import statistics publication of this notice. Any Susan G. Esserman, for India obtained from the Indian interested party may request a hearing Assistant Secretary for Import Import Statistics. We adjusted these within 10 days of publication. Any Administration. rates to reflect inflation through the POR hearing, if requested, will be held 44 [FR Doc. 95–20212 Filed 8–15–95; 8:45 am] days after the publication of this notice, using WPI published by the IMF. We BILLING CODE 3510±DS±P adjusted these values to include freight or the first workday thereafter. costs incurred between the suppliers Interested parties may submit case briefs [A±570±838] and ZWG. within 30 days of the date of publication • To value coal, we used per kilogram of this notice. Rebuttal briefs, which must be limited to issues raised in the Honey From the People's Republic of value obtained from the Monthly China; Suspension of Investigation Statistics of Foreign Trade of India. We case briefs, may be filed not later than adjusted these rates to reflect inflation 37 days after the date of publication. AGENCY: Import Administration, through the POR using WPI published The Department will publish a notice of International Trade Administration, by the IMF. final results of this administrative Department of Commerce. • review, which will include the results of To value electricity, we used the ACTION: Notice of suspension of price of electricity for 1993 reported in its analysis of issues raised in any such investigation; honey from the People’s the Confederation of Indian Industries comments. Republic of China. Handbook of Statistics. We adjusted the The Department shall determine, and value of electricity to reflect inflation the Customs Service shall assess, SUMMARY: The Department of Commerce through the POR using WPI published antidumping duties on all appropriate (the Department) has suspended the by the IMF. entries. Individual differences between antidumping investigation on honey • To value water, we used the Asian USP and FMV may vary from the from the People’s Republic of China Development Bank’s Water Utilities percentage stated above. The (PRC). The basis for the suspension is an Data Book for the Asian and Pacific Department will issue appraisement agreement by the Government of the 42522 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices PRC to restrict the volume of direct or critical circumstances determination (60 issues parties raised in their comments indirect exports to the United States of FR 29824, June 6, 1995). on the proposed agreement. honey products from all PRC producers/ In June 1995, we conducted We have determined that the exporters, thus, preventing the verifications at the Ministry of Foreign agreement will prevent the suppression suppression or undercutting of price Trade and Economic Cooperation or undercutting of price levels of honey levels of domestic products by imports (MOFTEC), the Chamber, Kunshan in the United States, that the agreement of the merchandise under investigation. Xinlong Foods, Ltd. (Kunshan Xinlong), can be monitored effectively, and that EFFECTIVE DATE: August 16, 1995. Jiangsu Native Produce Import and the agreement is in the public interest. Export (Jiangsu Native) and its supplier We find, therefore, that the criteria for FOR FURTHER INFORMATION CONTACT: Jiangsu Sweet, Jiangxi Native Produce suspension of an investigation pursuant James Doyle or Lisa Yarbrough, Office of Import and Export (Jiangxi Native), and to Section 734(l) of the Tariff Act of Agreements Compliance, Import its suppliers Jiangxi Ao Shan Duo Qi 1930, as amended (the ‘‘Act’’), have Administration, International Trade Beverage Factory (Ao Shan) and Qinghai been met. The terms and conditions of Administration, U.S. Department of Provincial Bee Products (Qinghai Bee), the agreement, signed August 2, 1995, Commerce, 14th Street and Constitution and Zhejiang Native Produce & Animal are set forth in Annex 1 to this notice. Avenue NW., Washington, DC 20230; By-product Import and Export (Zhejiang Pursuant to Section 734(f)(2)(A) of the telephone: (202) 482–3793. Native) and its supplier Hangzhou Act, effective (date of publication of SUPPLEMENTARY INFORMATION: Lewei Food Factory (Hangzhou Lewei). Federal Register notice), the suspension Verification reports were issued in June of liquidation of all entries entered or Case History 1995. withdrawn from warehouse, for On October 24, 1994, the Department On July 3, 1995, the Assistant consumption of honey from the PRC, as initiated an antidumping duty Secretary for Import Administration and directed in our notice of ‘‘Preliminary investigation on honey from the PRC representatives of the Chinese Determination of Sales at Less Than Fair based on a petition filed by members of government initialed a proposed Value: Honey from the People’s the American Beekeeping Federation suspension agreement. Republic of China’’ is hereby and the American Honey Producers Case briefs were filed by petitioners, terminated. Any cash deposits on Association (59 FR 54434, October 31, respondents, and the National Honey entries of honey from the PRC pursuant 1994) (petitioners). The International Packers and Dealers Association (the to that suspension of liquidation shall Trade Commission issued an affirmative NHPDA) on July 3, 1995. Rebuttal briefs be refunded and any bonds shall be preliminary injury determination on were submitted by each of these parties released. November 25, 1994 (59 FR 60655). On on July 7, 1995. A public hearing was Notwithstanding the suspension March 20, 1995, the Department held on July 11, 1995. agreement, the Department will preliminarily determined that imports Comments regarding the proposed continue the investigation if we receive of honey from the PRC are being sold at suspension agreement were filed by such a request in accordance with less than fair value in the United States petitioners, respondents, and the Section 734(g) of the Act within 20 days (60 FR 14725). NHPDA on July 3, 1995. Petitioners after the date of publication of this On March 16, 1995, the China filed rebuttal comments on July 26, notice. This notice is published Chamber of Commerce for Foodstuffs, 1995. pursuant to Section 734(f)(1)(A) of the Native Produce and Animal By-Products Scope of the Agreement Act. Importers and Exporters, (the Chamber) The products covered by this Dated: August 7, 1995. and 28 respondent exporters (the investigation are natural honey, Susan G. Esserman, respondents), listed in the artificial honey containing more than 50 Assistant Secretary for Import ‘‘Continuation of Suspension of percent natural honey by weight, and Administration. Liquidation’’ section of this notice, preparations of natural honey requested that the Department postpone Annex 1: Agreement Suspending the containing more than 50 percent natural the final determination. On March 30, Antidumping Investigation on Honey honey by weight. The subject products 1995, we did so (60 FR 17514, April 6, From the People’s Republic of China include all grades and colors of honey 1995). whether in liquid, creamed, comb, cut For the purpose of encouraging free On March 22, 1995, respondents filed comb, or chunk form, and whether and fair trade in honey, establishing two ministerial error allegations packaged for retail or in bulk form. more normal market relations, and regarding the preliminary determination The subject merchandise is currently preventing the suppression or and the valuation of raw honey and classifiable under subheadings undercutting of price levels of the steel drums. The Department rejected 0409.00.00, 1702.90.50, 2106.90.61, and domestic product, the United States these allegations (See Memorandum 2106.90.69 of the Harmonized Tariff Department of Commerce (‘‘the from The Team, Office of Antidumping Schedule of the United States (HTSUS). Department’’) and the Government of Investigations, to Barbara R. Stafford, the People’s Republic of China (‘‘PRC’’) Deputy Assistant Secretary for Period of Investigation enter into this suspension agreement Investigations, dated April 14, 1995). The period of investigation (POI) is (‘‘the Agreement’’). On April 27, 1995, petitioners alleged May 1, 1994, through October 31, 1994. Pursuant to this Agreement, the that critical circumstances exist with Government of the PRC will restrict the respect to imports of honey from the Suspension of Investigation volume of direct or indirect exports to PRC. Accordingly, the Department, on The Department consulted with the the United States of honey products May 3, 1995, requested that respondents parties to the proceeding and has from all PRC producers/exporters, provide monthly volume and value considered the comments submitted subject to the terms and provisions set shipment data for exports of honey to with respect to the proposed suspension forth below. the United States. They did so on May agreement. The signed suspension On the basis of this Agreement, 15, 1995. On May 30, 1995, the agreement reflects the decisions of the pursuant to the provisions of Section Department issued its preliminary Department with respect to many of the 734(l) of the Tariff Act of 1930, as Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42523 amended (the ‘‘Act’’) (19 U.S.C. containing more than 50 percent natural the PRC. Any such transfers or 1673c(l)), the Department shall suspend honey by weight, and preparations of withdrawals from inventory shall be its antidumping investigation with natural honey containing more than 50 deducted from the export limits in effect respect to honey produced in the PRC, percent natural honey by weight. The at the time the Quota Certificate is subject to the terms and provisions set subject products include all grades and issued. forth below. Further, the Department colors of honey whether in liquid, 2. A request for a Quota Certificate will instruct the U.S. Customs Service to creamed, comb, comb cut, or chunk under this provision shall be terminate the suspension of liquidation form, and whether packaged for retail or accompanied by a report specifying the of, and release any cash deposit or bond in bulk form. original date of export, the date of entry posted on, the products covered by this The subject merchandise is currently into the United States, the identity of Agreement as of the effective date of this classifiable under subheadings the original exporter and importer, the Agreement. 0409.00.00, 1702.90.50, 2106.90.61, and customer, a complete description of the 2106.90.69 of the Harmonized Tariff product (including lot numbers and I. Definitions Schedule of the United States other available identifying For purposes of this Agreement, the (‘‘HTSUS’’). Although the HTSUS documentation), and the quantity following definitions apply: subheading is provided for convenience expressed in pounds. A. ‘‘Date of Export’’ for imports of and customs purposes, our written 3. In the event that there is a surge of subject merchandise into the United description of the scope is dispositive. sales of subject merchandise from such States shall be considered the date the III. Export Limits inventory, the Department will decrease Quota Certificate was issued. the export limits to take into account A. The export limits for subject B. ‘‘Parties to the Proceeding’’ means such sales. any interested party, within the merchandise in each Relevant Period shall be 43,925,000 pounds plus or E. Any arrangement involving the meaning of Section 353.2(k) of the exchange, sale, or delivery of honey Department’s Regulations, which minus a maximum of six percent per year of quota based upon the U.S. honey products from the PRC, to the degree it actively participates through written results in the sale or delivery in the submissions of factual information or market growth in each Relevant Period. The export limits for each Relevant United States of honey products from a written argument. country other than the PRC, is subject to C. ‘‘Indirect Exports’’ means Period shall be allocated in semi-annual quota allocation periods. No more than the requirements of Section V and will arrangements as defined in Section III.E be counted toward the export limits. of this Agreement and exports from the 60% of the export limits for any Relevant Period can be allocated in any Any such transaction that does not PRC through one or more third comply with the requirements of countries, whether or not such exports given semi-annual quota allocation period. Deductions from the export Section V will be deducted from the are sold in one or more third countries export limits pursuant to Section VII. prior to importation into the United limits shall be made based on the ‘‘Date F. Where subject merchandise is States. of Export’’, as defined in Section I. imported into the United States and is D. For purposes of this Agreement, B. On or after the effective date of this subsequently re-exported, or re- ‘‘United States’’ shall comprise the Agreement, the Government of the PRC packaged and re-exported, the export customs territory of the United States of will restrict the volume of direct or limits shall be increased by the amount America (the 50 States, the District of indirect exports of subject merchandise of pounds re-exported. Such increase Columbia and Puerto Rico) and foreign to the United States, and the transfer or will be applicable to the Relevant Period trade zones located in the territory of withdrawal from inventory of subject corresponding to the time of such re- the United States of America. merchandise (consistent with the E. ‘‘For consumption’’ means material provisions of Section III.D), in export. Such increase will be applied sold in retail form, or in bulk form to accordance with the export limits then only after the Department receives, and end-users. The material shall not be in effect. has the opportunity to verify, evidence resold except as a result of force C. A delivery may not be made for demonstrating original importation, any majeure. more than the entire amount of quota re-packaging, and subsequent F. ‘‘End-user’’ means an entity, such allocated for that semi-annual quota exportation. The re-exported material as a retailer or an industrial purchaser allocation period. Any amount must be identical to the imported (e.g., a baker or manufacturer), which delivered during a Relevant Period shall material. consumes subject merchandise. not, however, when cumulated with all G. Quota Certificates for a given G. ‘‘Quota Certificate’’ is the prior deliveries in such Relevant Period, Relevant Period may not be issued after document which serves as both a quota exceed the annual quota for that July 31, except that Quota Certificates certificate and a certificate of origin. A Relevant Period. not so issued may be issued during the Quota Certificate must accompany all D. Any inventories of subject first three months of the following shipments of subject merchandise from merchandise currently held in the Relevant Period, up to a maximum of 15 the PRC to the United States, and must United States by a Chinese entity and percent of the export limit for that contain all of the information imported into the United States between following Relevant Period. Such enumerated in the Appendix (U.S. December 20, 1994 (the date ‘‘carried-over’’ quota shall be counted sales), except Date of Entry information corresponding to the Department’s against the export limits applicable to and Final Destination. critical circumstances determination) the previous Relevant Period. H. ‘‘Relevant Period’’ for the export and the effective date of this Agreement Quota Certificates for up to 15 percent limits of this Agreement means the will be subject to the following of the export limits for a subsequent period August 1 through July 31. conditions: Relevant Period may be issued as early 1. Such inventories will not be as June 1 of the preceding Relevant II. Product Coverage transferred or withdrawn from Period. Such ‘‘carried-back’’ quota shall The products covered by this inventory for consumption in the be counted against the export limits Agreement (‘‘subject merchandise’’) are United States without a Quota applicable to the following Relevant natural honey, artificial honey Certificate issued by the Government of Period. 42524 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices H. For the first 90 days after the V. Quota Certificate VI. Implementation effective date of this Agreement, subject A. The Government of the PRC will In order to effectively restrict the merchandise shall be admitted into the restrict the volume of direct or indirect volume of exports of honey to the United States with a ‘‘Quota Certificate/ exports of subject merchandise by United States, the Government of the Certificate of Origin (Temporary means of semi-annual quota allocations PRC agrees to implement the following Papers).’’ and Quota Certificates. Quota procedures: The volume of any such imports will Certificates shall be issued by the A. Establish, through MOFTEC, a be deducted from the export limits Ministry of Foreign Trade and Economic quota certification program for all applicable to the first Relevant Period. Cooperation (‘‘MOFTEC’’) for all direct exports of subject merchandise to, or A full reporting of any such imports, or indirect exports of subject destined directly or indirectly for which must correspond to the United merchandise to the United States in consumption in, the United States, no States sales information detailed in the accordance with the export limits in later than 90 days after the effective date Appendix, must be submitted to the Section III and the reference price in of this Agreement. Department no later than 30 days after Section IV. B. Ensure compliance by any official the conclusion of the 90 day period. B. Thirty days following the semi- PRC institution, chamber, or other This data must be sorted on the basis of annual allocation of quota rights for any entities authorized by the Government date of export. Relevant Period, MOFTEC shall provide of the PRC, all Chinese producers, to the Department a report identifying exporters, brokers, and traders of the IV. Reference Price each quota recipient and the volume of subject merchandise, and their related A. Subject merchandise will not be quota which each recipient has been parties, with all procedures established sold below the reference price. Each accorded (‘‘report of quota allocation in order to effectuate this Agreement. HTS category of material shall have its results’’). C. Collect information from all own reference price, and all such C. Before it issues a Quota Certificate, Chinese producers, exporters, brokers, reference prices shall be calculated in MOFTEC will ensure that the Relevant and traders of the subject merchandise, the same manner. Period’s quota volume is not exceeded and their related parties, on the sale of B. The reference price, issued and that the price for the subject the subject merchandise. quarterly by the Department, shall be merchandise is at or above the reference D. Impose strict sanctions, such as released by September 1, December 1, price. penalties or prohibition from March 1, and June 1 of each year and D. The Government of the PRC shall participation in the export limits shall be effective on October 1, January take action, including the imposition of allowed by the Agreement, in the event 1, April 1, and July 1, respectively. The penalties, as may be necessary to make that any Chinese or Chinese-related reference price for August 4 through effective the obligations resulting from party does not comply in full with all September 30 of the first Relevant the price restrictions, export limits, and the terms of the Agreement. Period shall be issued and effective on Quota Certificates. The Government of VII. Anticircumvention August 4. Either party is entitled to the PRC will inform the Department of A. The Government of the PRC will request consultations regarding the any violations concerning the price take all appropriate measures under calculation of reference prices. restrictions, export limits and/or Quota Chinese law to prevent circumvention C. The reference price equals the Certificates which come to its attention and the action taken with respect of this Agreement. It shall respond product of 92 percent and the weighted- promptly to conduct an inquiry into any average of the honey unit import values thereto. The Department will inform the and all allegations of circumvention, from all other countries for the most Government of the PRC of violations including allegations raised by the recent six months of data available at concerning the price restrictions, export Department, and shall complete such the time the reference price is limits, and/or Quota Certificates which inquiries in a timely manner (normally calculated. The source of the unit come to its attention and the action within 45 days). The Government of the import values will be publicly available taken with respect thereto. PRC shall notify the Department of the United States trade statistics from the E. Quota Certificates will be issued results of its inquiries within ten days United States Bureau of the Census. sequentially, endorsed against the of the conclusion of such inquiries. D. The Government of the PRC will export limits for the Relevant Periods, Within 15 days of a request from the ensure that the PRC unit values of and will reference the report of quota Department, the Government of the PRC subject imports will equal or exceed the allocation results for the appropriate shall share with the Department all facts reference price at equivalent points in Relevant Period. known to the Government of the PRC the transaction chain. The reference F. Quota Certificates must be issued regarding its inquiries, its analysis of price will be at a level in the transaction no earlier than one month before the such facts and the results of such chain as far upstream as possible (i.e., day, month, and year on which the inquiries. The Government of the PRC F.O.B.). The Government of the PRC merchandise is accepted by a will require all Chinese exporters of will ensure that contracts and all transportation company, as indicated in honey to include a provision in their relevant documentation will be the bill-of-lading or a comparable contracts for sales to countries other available to the Department and will be transportation document, for export. than the United States that the honey subject to verification. Quota Certificates must contain an sold through such contracts cannot be E. Subject merchandise imported after English language translation. re-exported, transhipped or swapped to the effective date of the Agreement, G. On or after the effective date of this the United States, or otherwise used to exported from the PRC prior to August Agreement, the United States shall circumvent the export limits of this 2, 1995, and sold pursuant to a contract require presentation of a Quota Agreement. The Government of the PRC in effect on or before July 3, 1995, shall Certificate as a condition for entry of will also establish appropriate not be subject to reference price subject merchandise into the United mechanisms to enforce this restrictions. Consistent with Section States. The United States will prohibit requirement. III.H., the volume of such imports shall the entry of any subject merchandise not B. If, in an inquiry pursuant to be deducted from the export limits. accompanied by a Quota Certificate. paragraph A, the Government of the Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42525 PRC determines that a Chinese company States, regardless of stated country of Displacement swaps—involve the sale has participated in a transaction that origin, to submit at the time of entry a or delivery of any type of honey resulted in circumvention of the export written statement certifying that the product(s) from China to an limits of this Agreement, then the honey being imported was not obtained intermediary country (or countries) Government of the PRC shall impose under any arrangement, swap, or other which can be shown to have resulted in penalties on such company including, exchange which would result in the the ultimate delivery or sale into the but not limited to, denial of access to circumvention of the export limits United States of displaced honey the honey quota. Additionally, the established by this Agreement. Where products of any type, regardless of the Government of the PRC shall deduct an the Department has reason to believe sequence of the transaction. amount of honey equivalent to the that such a certification has been made H. The Department will enter its amount involved in such circumvention falsely, the Department will refer the determinations regarding circumvention from the available quota and shall matter to Customs or the Department of into the record of the Agreement. immediately notify the Department of Justice for further action. VIII. Monitoring the amount deducted. If sufficient quota F. Given the fungibility of the world is not available in the current Relevant honey market, the Department will take The Government of the PRC will Period, then the remaining amount the following factors into account in provide to the Department such necessary shall be deducted from the distinguishing normal honey market information as is necessary and subsequent Relevant Period. arrangements, swaps, or other appropriate to monitor the C. If the Government of the PRC exchanges from arrangements, swaps, or implementation of and compliance with determines that a company from a third other exchanges which would result in the terms of this Agreement. The country has circumvented the the circumvention of the export limits Department of Commerce shall provide Agreement and the parties agree that no established by this Agreement: semi-annual reports to the Government Chinese entity participated in or had 1. existence of any verbal or written of the PRC indicating the volume of knowledge of such activities, then the arrangements which would result in imports of the subject merchandise to parties shall hold consultations for the the circumvention of the export limits the United States, together with such purpose of sharing evidence regarding established by this Agreement; additional information as is necessary such circumvention and reaching 2. existence of any arrangement as and appropriate to monitor the mutual agreement on the appropriate defined in Section III.E that was not implementation of this Agreement. steps to be taken to eliminate such reported to the Department pursuant A. Reporting of Data circumvention, such as the Government to Section VIII.A; Beginning on the effective date of this of the PRC prohibiting sales of Chinese 3. existence and function of any honey to the company responsible or Agreement, the Government of the PRC subsidiaries or affiliates of the parties shall collect and provide to the reducing honey exports to the country involved; in question. If the parties are unable to Department the information set forth, in 4. existence and function of any the agreed format, in the Appendix. All reach mutual agreement within 45 days, historical and/or traditional trading then the Department may take such information will be provided to the patterns among the parties involved; Department by April 30th of each year appropriate action, such as deducting 5. deviations (and reasons for deviation) the amount of honey involved in such for exports during the period from from the above patterns, including August 1 through January 31st. In circumvention from the available quota, physical conditions of relevant honey taking into account all relevant factors. addition, such information will be facilities; Before taking such action, the provided to the Department by October 6. existence of any payments Department will notify the Government 31st for sales from February 1st through unaccounted for by previous or of the PRC of the facts and reasons July 31st, or within 90 days of a request subsequent deliveries, or any constituting the basis for the made by the Department. Such payments to one party for Department’s intended action and will information will be subject to the merchandise delivered or swapped by afford the Government of the PRC ten verification provision identified in another party; days in which to comment. Section VIII.C of this Agreement. The D. If the Department determines that 7. sequence and timing of the Department may disregard any a Chinese entity participated in arrangements; and information submitted after the circumvention, the parties shall hold 8. any other information relevant to the deadlines set forth in this Section or any consultations for the purpose of sharing transaction or circumstances. information which it is unable to verify evidence regarding such circumvention G. ‘‘Swaps’’ include, but are not to its satisfaction. and reaching mutual agreement on an limited to: Aggregate quantity and value of sales appropriate resolution of the problem. If Ownership swaps—involve the by HTS category to each third country the parties are unable to reach mutual exchange of ownership of any type of will be provided to the Department by agreement within 45 days, the honey product(s), without physical April 30th of each year for exports Department may take appropriate transfer. These may include exchange of during the period from August 1st of the action, such as deducting the amount of ownership of honey products in previous year through January 31st. In honey involved in such circumvention different countries, so that the parties addition, such quantity and value from the available quota. Before taking obtain ownership of products located in information will be provided to the such action, the Department will notify different countries; or exchange of Department by October 31st for sales the Government of the PRC of the facts ownership of honey products produced from February 1st through July 31st. and reasons constituting the basis for in different countries, so that the parties Transaction specific data for all third the Department’s intended action and obtain ownership of products of country sales will also be reported on will afford the Government of the PRC different national origin. the schedule provided above in the ten days in which to comment. Flag swaps—involve the exchange of format provided in the Appendix. E. The Department shall direct the indicia of national origin of honey However, if the Department concludes U.S. Customs Service to require all products, without any exchange of that the transaction specific data is not importers of honey into the United ownership. necessary for a given period, it will 42526 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices notify the Government of the PRC at association with scheduled Such consultations shall begin no later least 90 days before the reporting consultations whenever possible. than 14 days from the day of request deadline that transaction specific sales and shall provide for full review, but in IX. Disclosure and Comment data need not be reported. If the no event will exceed 30 days. After Department determines that such data is A. The Department shall make consultations, the Department will relevant in connection with Section VII available to representatives of each provide the Government of the PRC 10 and requests information on party to the proceeding, under days within which to provide transactions for one or more third appropriately-drawn administrative comments. The Department will make a countries during a period for which the protective orders consistent with the determination within 20 days. Department waived complete reporting, Department’s Regulations, business the Government of the PRC will provide proprietary information submitted to the B. Appropriate Action the data listed in the Appendix for those Department semi-annually or upon If the Department determines that this specific transactions within 90 days of request, and in any administrative Agreement is being or has been violated, the request. review of this Agreement. the Department will take such action as Both governments recognize that the B. Not later than 30 days after the date it determines is appropriate under effective monitoring of this Agreement of disclosure under Section VIII.A, the Section 734(i) of the Act and Section may require that the PRC provide parties to the proceeding may submit 353.19 of the Department’s Regulations. information additional to that which is written comments to the Department, XII. Duration identified above. Accordingly, the not to exceed 30 pages. Department may establish additional C. During the anniversary month of The export limits provided for in reporting requirements, as appropriate, this Agreement, each party to the Section III of this Agreement shall during the course of this Agreement. proceeding may request a hearing on remain in force from the effective date The Department shall provide notice issues raised during the preceding of this Agreement through August 1, to the Government of the PRC of any Relevant Period. If such a hearing is 2000. additional reporting requirements no requested, it will be conducted in The Department will, upon receiving later than 45 days prior to the period accordance with Section 751 of the Act a proper request no later than August 1, covered by such reporting requirements (19 U.S.C. 1675) and applicable 1999, conduct an administrative review unless a shorter notice period is regulations. under Section 751 of the Act. The mutually agreed. Department expects to terminate this X. Consultations Agreement and the underlying B. Other Sources for Monitoring The Government of the PRC and the investigation no later than August 1, The Department will review publicly- Department shall hold consultations 2000, provided that the PRC has not available data as well as Customs Form regarding matters concerning the been found to have violated the 7501 entry summaries and other official implementation, operation including Agreement in any substantive manner. import data from the Bureau of the the calculation of reference prices, and/ Such review and termination shall be Census, on a monthly basis, to or enforcement of this Agreement. Such conducted consistent with Section determine whether there have been consultations will be held each year 353.25 of the Department’s Regulations. imports that are inconsistent with the during the anniversary month of this The Government of the PRC may provisions of this Agreement. Agreement. Additional consultations terminate this Agreement at any time The Department will monitor Bureau may be held at any other time upon upon notice to the Department. of the Census IM–115 computerized request of either the Government of the Termination shall be effective 60 days records, which include the quantity and PRC or the Department. after such notice is given to the value of each entry. Because these Department. Upon termination at the records do not provide other specific XI. Violations of the Agreement request of the Government of the PRC, entry information, such as the identity A. Violation the provisions of Section 734(i) of the of the producer/exporter which may be Act shall apply. responsible for such sales, the ‘‘Violation’’ means noncompliance XIII. Other Provisions Department may request the U.S. with the terms of this Agreement caused Customs Service to provide such by an act or omission in accordance A. In entering into this Agreement, information. The Department may with Section 353.19 of the the Government of the PRC does not request other additional documentation Department—s Regulations. admit that any sales of the merchandise from the U.S. Customs Service. The Government of the PRC and the subject to this Agreement have been The Department may also request the Department will inform the other party made at less than fair value or that such U.S. Customs Service to direct ports of of any violations of the Agreement sales have materially injured, or entry to forward an Antidumping Report which come to their attention and the threatened material injury to, an of Importations for entries of the subject action taken with respect thereto. industry or industries in the United merchandise during the period this Imports in excess of the export limits States. Agreement is in effect. set out in this Agreement shall not be B. The Department finds that this considered a violation of this Agreement Agreement is in the public interest; that C. Verification or an indication the Agreement no effective monitoring of this Agreement The Government of the PRC will longer meets the requirements of by the United States is practicable; and permit full verification of all Section 734(l) of the Act where such that this Agreement will prevent the information related to the imports are minimal in volume, are the suppression or undercutting of price administration of this Agreement, on an result of technical shipping levels of United States domestic honey annual basis or more frequently, as the circumstances, and are applied against products by imports of the merchandise Department deems necessary to ensure the export limits of the following year. subject to this Agreement. that the PRC is in full compliance with Prior to making a determination of an C. The Department does not consider the terms of the Agreement. Such alleged violation, the Department will any of the obligations concerning verifications may take place in engage in emergency consultations. exports of honey to the United States Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42527 undertaken by the Government of the and imported into the United States 13. Final Destination: Name and address PRC pursuant to this Agreement between the period beginning December of the end-user for consumption in relevant to the question of whether 20, 1994, through the effective date of the United States. firms in the underlying investigation the Agreement. 14. Quota Allocated to Exporter: would be entitled to separate rates, 1. Quantity: Indicate original units of Indicate the total amount of quota should the investigation be resumed for measure and in pounds. allocated to the individual exporter any reason. 2. Location: Identify where the during the Relevant Period. D. The English language version of inventory is currently being held. 15. Quota Remaining: Indicate the this Agreement shall be controlling. Provide the name and address for the remaining quota available to the E. For all purposes hereunder, the location. individual exporter during the Department and the signatory 3. Titled Party: Name and address of Relevant Period. Government shall be represented by, party who legally has title to the 16. Other: i.e., used as collateral, will be and all communications and notices merchandise. re-exported, etc. shall be given and addressed to: 4. Quota Certificate Number: Indicate Sales Other Than United States Department of Commerce the number(s) relating to each entry Pursuant to Section VIII, paragraph A, U.S. Department of Commerce, now being held in inventory. 5. Certificate of Origin Number(s): the Government of the PRC will provide Assistant Secretary, for Import country-specific sales volume and value Administration, International Trade Indicate the number(s) relating to each sale or entry. information for all sales of subject Administration, Washington, D.C. merchandise to third countries. 20230 6. Date of Original Export: Date the quota certificate/certificate of origin is 1. Quota Certificate/Certificate of Origin Government of the PRC issued. Number(s): Indicate the number(s) Ministry of Foreign Trade and Economic 7. Date of Entry: Date the merchandise relating to each sale and/or entry. Cooperation, Deputy Director General, entered the United States or the date 2. Quantity: Indicate in original units of 2, Dong Chang An Street, Beijing, Post book transfer took place. measure sold and/or entered and in Code 100731, People’s Republic of 8. Original Importer: Name and address. metric tons. China 9. Original Exporter: Name and address. 3. Date of Sale: The date all terms of 10. Complete Description of order are confirmed. XIV. Effective Date Merchandise: Include lot numbers 4. Sales Order Number(s): Indicate the The effective date of this Agreement and other available information. number(s) relating to each sale and/or suspending the antidumping entry. United States Sales investigation on honey from the PRC, 5. Date of Export: Date the quota August 2, 1995. MOFTEC will provide all Quota certificate is issued. Signed on this second day of August, 1995. Certificates, which shall contain the 6. Date of Entry: Date the merchandise following information with the entered the United States or the date For the U.S. Department of Commerce. exception of item #9, date of entry, and a book transfer took place. Susan G. Esserman, item #13, final destination. 7. Importer of Record: Name and Assistant Secretary for Import address. Administration. 1. Quota Certificate/Certificate of Origin Number(s): Indicate the number(s) 8. Customer: Name and address of the MOFTEC for the Government of the relating to each sale and/or entry. first party purchasing from the PRC People’s Republic of China. 2. Complete Description of exporter. Wang Tian Ming, Merchandise: Include lot numbers 9. Customer Relationship: Indicate Minister-Councillor, Embassy of the People’s and other available information whether the customer is related or Republic of China in the United States. including the HTS category to the 10 unrelated. Appendix digit level. 10. Final Destination: Name and address of the end-user for consumption. In accordance with the established 3. Quantity: Indicate in original units of measure and in pounds. 11. Other: i.e., used as collateral, will be format, the Government of the PRC shall re-exported, etc. collect and provide to the Department 4. Total Sales Value: Indicate currency all information necessary to ensure used. [FR Doc. 95–20297 Filed 8–15–95; 8:45 am] compliance with this Agreement. This 5. Unit Price: Indicate currency used. BILLING CODE 3510±DS±P information will be provided to the 6. Date of Sale: The date all terms of order are confirmed. Department on a semi-annual basis, or [A±588±813] upon request. 7. Sales Order Number(s): Indicate the number(s) relating to each sale and/or The Government of the PRC will Light-Scattering Instruments and Parts entry. collect and maintain sales data to the Thereof From Japan; Preliminary 8. Date of Export: Date the quota United States, in the home market, and Results of Antidumping Duty certificate is issued. to countries other than the United Administrative Review States, on a continuous basis and 9. Date of Entry: Date the merchandise provide the prescribed information to entered the United States or the date AGENCY: Import Administration, the Department. book transfer took place. International Trade Administration, The Government of the PRC will 10. Importer of Record: Name and Department of Commerce. provide a narrative explanation to address. ACTION: Notice of preliminary results of substantiate all data collected in 11. Customer: Name and address of the antidumping duty administrative accordance with the following formats. first party purchasing from the PRC review. exporter. Report of Inventories 12. Customer Relationship: Indicate SUMMARY: In response to a request by the Report, by location, the inventories whether the customer is related or petitioner, Wyatt Technology held by the PRC in the United States unrelated to the PRC exporter. Corporation (Wyatt), the Department of 42528 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Commerce (the Department) is molecular interaction parameters, such therefore, determines that Otsuka is an conducting the fourth administrative as the so-called second viral coefficient. uncooperative respondent. As a result, review of the antidumping duty order (An instrument that uses single-angle in accordance with section 776(c) of the on light-scattering instruments (LSIs) instead of multi-angle measurement can Act, we have determined that the use of and parts thereof from Japan. The only measure molecular weight and the BIA is appropriate. Whenever, as here, review covers one manufacturer/ second viral coefficient.) Dynamic a company refuses to cooperate with the exporter, Otsuka Electronics Co., Ltd. measurement (also known as quasi- Department, or otherwise significantly (Otsuka), and entries of the subject elastic measurement) capability refers to impedes an antidumping proceeding, merchandise to the United States during the ability to measure the diffusion we use as BIA the higher of (1) the the period November 1, 1993 through coefficient of molecules or particles in highest of the rates found for any firm October 31, 1994. suspension and deduce therefrom for the same class or kind of We have preliminarily determined, features of their size and size merchandise in the less-than-fair-value using the best information available distribution. LSIs subject to this review (LTFV) investigation or prior (BIA), that dumping margins exist with employ laser light and may use either a administrative reviews; or (2) the respect to Otsuka. Interested parties are single-angle or multi-angle technique. highest rate found in this review for any invited to comment on these The following parts are included in firm for the same class or kind of preliminary results. the scope of this administrative review merchandise. (See Antifriction Bearings EFFECTIVE DATE: August 16, 1995. when they are manufactured according from France, et. al; Final Results of to specifications and operational FOR FURTHER INFORMATION CONTACT: G. Review, 58 FR 39729 (July 26, 1993).) As requirements for use only in an LSI as Leon McNeill or Maureen Flannery, BIA, we assigned the rate of 129.71 defined in the preceding paragraph: Office of Antidumping Compliance, percent, which is the highest rate for scanning photomultiplier assemblies, Import Administration, International any company from both the prior review immersion baths (to provide and the LTFV investigation. Trade Administration, U.S. Department temperature stability and/or refractive of Commerce, 14th Street and Consequently, we preliminarily index matching), sample-containing determine that the following dumping Constitution Avenue NW., Washington, structures, electronic signal-processing D.C. 20230; telephone: (202) 482–4733. margin exists for the period November boards, molecular characterization 1, 1993 through October 31, 1994: SUPPLEMENTARY INFORMATION: software, preamplifier/discriminator circuitry, and optical benches. LSIs Background Margin subject to this review may be sold Manufacturer/exporter (per- On November 19, 1990, the inclusive or exclusive of accessories cent) Department published in the Federal such as personal computers, cathode ray Register an antidumping duty order on tube displays, software, or printers. LSIs Otsuka Electronics Co., Ltd ...... 129.71 LSIs and parts thereof from Japan (55 FR are currently classifiable under 48144). On November 2, 1994, the Harmonized Tariff Schedule (HTS) Any interested party may request a petitioner, Wyatt, requested that we subheading 9027.30.40. LSI parts are hearing within 10 days of publication of conduct an administrative review in currently classifiable under HTS this notice. Any hearing will be held 44 accordance with section 353.22(a) of the subheading 9027.90.40. HTS days after the date of publication of this Department’s regulations (19 CFR subheadings are provided for notice, or the first workday thereafter. 353.22(a)). We initiated the review convenience and U.S. Customs Service Interested parties may submit case briefs covering the period November 1, 1993 purposes. The written product within 30 days of the publication date through October 31, 1994 (59 FR 64650, description remains dispositive. of this notice. Rebuttal briefs, limited to December 15, 1994). The Department is Different items with the same name as issues raised in the case briefs, may be now conducting the review in subject parts may enter under filed not later than 37 days after the date accordance with section 751 of the subheading 9027.90.40. To avoid the of publication. The Department will Tariff Act of 1930, as amended (the Act). unintended suspension of liquidation of publish a notice of the final results of non-subject parts, those items entered this administrative review, which will Applicable Statutes and Regulations under subheading 9027.90.40 and include the result of its analysis of Unless otherwise stated, all citations generally known as scanning issues raised in any such case briefs or to the statute and to the Department’s photomultiplier assemblies, immersion hearing. regulations are references to the baths, sample-containing structures, The following deposit requirements provisions as they existed on December electronic signal-processing boards, shall be effective for all shipments of the 31, 1994. molecular characterization software, subject merchandise entered, or withdrawn from warehouse, for Scope of the Review preamplifier/discriminator circuitry, and optical benches must be consumption, on or after the publication This review covers imports of LSIs accompanied by an importer’s date of the final results of this and parts thereof from Japan. The declaration to the Customs Service administrative review, as provided by Department defines such merchandise stating that they are not manufactured section 751(a)(1) of the Act: (1) The cash as LSIs and the parts thereof, specified for use in a subject LSI. deposit rate for the reviewed company below, that have classical measurement This review covers entries of the shall be the rate established in the final capabilities, whether or not also capable subject merchandise manufactured by results of this review; (2) for previously of dynamic measurement. Classical Otsuka and entered during the period reviewed or investigated companies not measurement (also known as static November 1, 1993 through October 31, listed above, the cash deposit rate will measurement) capability usually means 1994. continue to be the company-specific rate the ability to measure absolutely (i.e., published for the most recent period; (3) without reference to molecular Preliminary Results of Review if the exporter is not a firm covered in standards) the weight and size of Otsuka has not responded to the this review, a prior review, or the macromolecules and submicron Department’s questionnaire, sent on original LTFV investigation, but the particles in solution, as well as certain March 27, 1995. The Department, manufacturer is, the cash deposit rate Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42529 shall be the rate established for the most with regard to seamless SSHP, covering We preliminarily determined that AL recent period for the manufacturer of the periods December 1, 1990 through Tech’s and USWA’s affirmative the merchandise; and (4) if neither the November 30, 1991, and December 1, statement of no interest constitutes good exporter nor the manufacturer is a firm 1991 through November 30, 1992, cause for conducting a changed covered in this or any previous review respectively. We are now revoking the circumstances review. Consequently, on by the Department, the cash deposit rate order in part, with regard to seamless July 24, 1995, the Department published will be 129.71 percent, the all other rate SSHP, based on the fact that this portion a notice of initiation and preliminary established in the LTFV investigation. of the order is no longer of interest to results of changed circumstances These deposit requirements, when domestic parties. Accordingly, we are antidumping duty administrative review imposed, shall remain in effect until now terminating these reviews. to determine whether to revoke the publication of the final results of the order in part (60 FR 37876). We gave EFFECTIVE DATE: August 16, 1995. next administrative review. interested parties an opportunity to This notice serves as a preliminary FOR FURTHER INFORMATION CONTACT: comment on the preliminary results of reminder to importers of their Amy S. Wei or Zev Primor, Office of this changed circumstances review. We responsibility under 19 CFR 353.26 to Antidumping Compliance, Import received no comments. Administration, International Trade file a certificate regarding the Scope of Review reimbursement of antidumping duties Administration, U.S. Department of prior to liquidation of the relevant Commerce, 14th Street and Constitution The merchandise covered by this entries during this review period. Avenue, NW, Washington, DC 20230; changed circumstances review are Failure to comply with this requirement telephone (202) 482–5253. seamless stainless steel hollow products including pipes, tubes, hollow bars, and could result in the Secretary’s SUPPLEMENTARY INFORMATION: presumption that reimbursement of blanks of circular cross section, antidumping duties occurred and the Background containing over 11.5 percent chromium by weight. This merchandise is subsequent assessment of double On December 3, 1987, the Department antidumping duties. currently classified under subheadings published an antidumping duty order 7304.41.00 and 7304.49.00 of the This administrative review and notice on seamless SSHP from Sweden (52 FR are in accordance with section 751(a)(1) Harmonized Tariff Schedule (HTS). The 45985). On December 13, 1991, Sandvik HTS numbers are provided for of the Act (19 U.S.C. 1675(a)(1)) and 19 AB, AB Sandvik Steel, and the Sandvik CFR 353.22. convenience and Customs purposes. Steel Company (collectively, Sandvik), The written description remains Dated: August 4, 1995. the respondent, requested the fourth dispositive. Susan G. Esserman, administrative review of the This changed circumstances Assistant Secretary for Import antidumping duty order, covering the administrative review covers all Administration. period December 1, 1990 through manufacturers/exporters of seamless [FR Doc. 95–20206 Filed 8–15–95; 8:45 am] November 30, 1991. On January 23, SSHP from Sweden. BILLING CODE 3510±DS±P 1992, the Department initiated the administrative review with regard to Final Results of Review; Partial seamless SSHP (57 FR 2704). On Revocation of Antidumping Duty [A±401±603] November 5, 1992, the Department Order; Termination of Antidumping published an amended antidumping Duty Administrative Reviews Stainless Steel Hollow Products From duty order to include welded SSHP in Sweden; Termination of Antidumping The affirmative statement of no the scope of the order (57 FR 52761). On Duty Administrative Reviews, Final interest by AL Tech and USWA December 4, 1992, Sandvik requested Results of Changed Circumstances constitutes changed circumstances the fifth administrative review of the Antidumping Duty Administrative sufficient to warrant partial revocation antidumping duty order, covering the Review, and Revocation In Part of of the order. Therefore, the Department period December 1, 1991 through Antidumping Duty Order is partially revoking the order on SSHP November 30, 1992. On February 23, from Sweden, with regard to seamless AGENCY: Import Administration, 1993, the Department initiated this SSHP, in accordance with sections International Trade Administration, administrative review with regard to 751(b) and (d) and 782(h) of the Tariff Department of Commerce. seamless SSHP (58 FR 11026). On Act of 1930, as amended (the Act) and ACTION: Notice of termination of February 9, 1995, AL Tech Specialty 19 CFR 353.25(d)(1). This partial antidumping duty administrative Steel Corporation (AL Tech) and the revocation applies to all entries of the reviews, final results of changed United Steelworkers of America subject merchandise entered, or circumstances antidumping duty (USWA), the only petitioners in this withdrawn from warehouse, for administrative review, and revocation in proceeding who are involved in the consumption on or after December 1, part of antidumping duty order. production of seamless SSHP, submitted 1990. Accordingly, the Department is a request for a changed circumstances terminating the fourth and fifth reviews. SUMMARY: On December 3, 1987, the administrative review and partial The Department will instruct the U.S. Department of Commerce (the revocation of the order with regard to Customs Service (Customs) to proceed Department) published an antidumping seamless SSHP. In addition, AL Tech with liquidation, without regard to duty order on seamless stainless steel and USWA requested that the partial antidumping duties, of all unliquidated hollow products (SSHP) from Sweden. revocation be effective retroactive to entries of seamless SSHP entered, or On November 5, 1992, the Department December 1, 1990, thereby terminating withdrawn from warehouse, for published an amended antidumping the currently pending fourth and fifth consumption on or after December 1, duty order to include welded SSHP in administrative reviews. AL Tech and 1990. The Department will further the scope of the order. On January 23, USWA made this request based on the instruct Customs to refund with interest 1992 and on February 23, 1993, the fact that the order with regard to any estimated duties collected with Department initiated administrative seamless SSHP is no longer of interest respect to unliquidated entries of reviews of the antidumping duty order to the petitioners. seamless SSHP entered, or withdrawn 42530 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices from warehouse, for consumption on or FOR FURTHER INFORMATION CONTACT: review period, this merchandise was after December 1, 1990, in accordance Lorenza Olivas or Judy Kornfeld, Office classifiable under the following HTS with section 778 of the Act. of Countervailing Compliance, Import numbers, which are based on the This notice also serves as a reminder Administration, International Trade amended conversion of the scopes of the to parties subject to administrative Administration, U.S. Department of countervailing duty order. See, Certain protection orders (APOs) of their Commerce, 14th Street and Constitution Textile Mill Products From Mexico, responsibility concerning the Avenue NW., Washington, D.C. 20230; Certain Apparel From Argentina, and disposition of proprietary information telephone: (202) 482–2786. Certain Apparel From Thailand (58 FR disclosed under APO in accordance SUPPLEMENTARY INFORMATION: 4151; January 13, 1993). with 19 CFR 353.34(d). Timely written notification of the return/destruction of Background 6104.41.00, 6104.43.10, 6104.44.10, APO materials or conversion to judicial On March 12, 1985, the Department 6104.51.00, 6104.53.10, 6104.61.00, protective order is hereby requested. published in the Federal Register (50 6104.63.15, 6105.10.00, 6105.20.20, Failure to comply with the regulations FR 9846) the countervailing duty order 6106.10.00, 6106.20.10, 6106.90.10, and terms of an APO is a sanctionable on certain apparel from Argentina. On 6109.90.20, 6110.10.20, 6110.20.20, violation. March 5, 1992, the Department 6111.10.00, 6112.41.00, 6112.49.00, This changed circumstances published a notice of ‘‘Opportunity to 6115.20.00, 6115.91.00, 6115.93.10, administrative review, partial Request an Administrative Review’’ (57 6115.99.14, 6116.91.00, 6116.93.15, revocation of the antidumping duty FR 7910) of this countervailing duty 6201.12.20, 6202.11.00, 6202.13.30, order, termination of the fourth and fifth order. We received a timely request for 6202.91.10, 6202.91.20, 6202.92.20, administrative reviews, and notice are review from the Amalgamated Clothing 6202.93.40, 6203.22.30, 6203.42.40, in accordance with sections 751(b) and and Textile Workers Union. 6204.11.00, 6204.13.10, 6204.19.10, (d) and 782(h) of the Act and sections We initiated the review, covering the 6204.21.00, 6204.31.20, 6204.33.40, 353.22(f) and 353.25(d) of the period January 1, 1991 through 6204.39.20, 6204.41.20, 6204.42.30, December 31, 1991 (POR), on April 13, Department’s regulations. 6204.43.30, 6204.44.30, 6204.51.00, Dated: August 9, 1995. 1992 (57 FR 12797). The review covers 5 manufacturers/exporters of the subject 6204.53.20, 6204.59.20, 6204.61.00, Susan G. Esserman, merchandise, which accounted for 6204.63.25, 6204.69.20, 6205.10.20, Assistant Secretary for Import substantially all exports of certain 6206.20.30, 6206.40.25, 6209.10.00, Administration. apparel during the POR, and 10 6209.20.10, 6209.20.50, 6209.90.30, [FR Doc. 95–20298 Filed 8–15–95; 8:45 am] programs. (See Memorandum to Barbara 6211.12.30, 6211.41.00, 6214.30.00, BILLING CODE 3510±DS±P E. Tillman from Team Regarding 6214.40.00. Certain Apparel from Argentina dated Best Information Available (BIA) for January 14, 1995, on file in the public Pulloverfin [C±357±404] file of the Central Records Unit, Room B–099 of the Department of Commerce). Certain Apparel From Argentina; Section 776(c) of the Act requires the Preliminary Results of Countervailing Applicable Statute and Regulations Department to use BIA ‘‘whenever a party or any other person refuses or is Duty Administrative Review The Department is conducting this unable to produce information administrative review in accordance AGENCY: Import Administration, requested in a timely manner and in the with section 751(a) of the Tariff Act of International Trade Administration, 1930, as amended (the Act). Unless form required, or otherwise significantly Department of Commerce. otherwise indicated, all citations to the impedes an investigation . . . .’’ ACTION: Notice of preliminary results of statute and to the Department’s In this review, Pulloverfin, a countervailing duty administrative regulations are in reference to the producer/exporter of the subject review. provisions as they existed on December merchandise, did not respond to the 31, 1994. However, references to the Department’s initial and supplemental SUMMARY: The Department of Commerce Department’s Countervailing Duties; (the Department) is conducting an questionnaires; therefore, we are Notice of Proposed Rulemaking and administrative review of the assigning Pulloverfin a rate based on Request for Public Comments, 54 FR countervailing duty order on certain BIA. In determining what rate to use as 23366 (May 31, 1989) (Proposed apparel from Argentina. We BIA, the Department follows a two- Regulations), are provided solely for preliminarily determine the net bounty tiered methodology. The Department further explanation of the Department’s or grant to be zero for Agrest, S.A. normally assigns lower BIA rates to countervailing duty practice. Although those respondents who cooperated in an (Agrest), Comercio Internacional, S.A. the Department has withdrawn the (Comercio), IVA, S.A. (IVA), and Leger, administrative review and rates based particular rulemaking proceeding on more adverse assumptions to S.A. (Leger), 15.87 percent ad valorem pursuant to which the Proposed respondents who did not cooperate. for Pulloverfin, S.A. (Pulloverfin) and Regulations were issued, the subject Since Pulloverfin did not cooperate, we 0.76 percent ad valorem for all other matter of these regulations is being are assigning a BIA rate of 15.87 percent companies for the period January 1, considered in connection with an 1991 through December 31, 1991. If the ongoing rulemaking proceeding which, ad valorem, which is the highest rate final results remain the same as these among other things, is intended to from any prior proceeding of this order preliminary results of administrative conform the Department’s regulations to and which is the rate Pulloverfin review, we will instruct the U.S. the Uruguay Round Agreements Act. received in the investigation (See, Final Customs Service to assess See 60 FR 80 (Jan. 3, 1995). Affirmative Countervailing Duty countervailing duties as indicated Determinations and Countervailing above. Interested parties are invited to Scope of the Review Orders: Certain Textile Mill Products comment on these preliminary results. The subject merchandise is certain and Apparel from Argentina (50 FR EFFECTIVE DATE: August 16, 1995. apparel from Argentina. During the 9846; March 12, 1985)). Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42531 Calculation Methodology for Apparel from Argentina, Final Results Decree 1555/86 and incorporated the Assessment and Cash Deposit Purposes of Countervailing Duty Administrative reduced rebate rates introduced by In accordance with our normal Review (56 FR 10410; March 12, 1991); Decree 612/91. Therefore, during the practice, we calculated the net bounty Certain Apparel from Argentina, Final POR, rebates were suspended from or grant on a country-wide basis by first Results of Countervailing Duty January 1 through April 10, 1991, and calculating the bounty or grant rate for Administrative Review (56 FR 41823; the rebate rate was 8.3 percent from each company subject to the August 23, 1991). April 11 through December 31, 1991. However, once a rebate program Using the information provided in the administrative review. We then weight- meets this threshold, the Department questionnaire response, we calculated averaged the rate received by each must still determine in each case the allowable tax incidence for the company using as the weight its share whether there is an overrebate; that is, subject merchandise based on the 1986 of total Argentine exports to the United the Department must still analyze study which was in effect during the States of subject merchandise, including whether the rebate exceeds the total review period. We found that the rebate all companies, even those with de amount of indirect taxes and import of indirect taxes did not exceed the total minimis and zero rates. We then duties borne by inputs that are amount of allowable cumulative summed the individual companies’ physically incorporated into the indirect taxes and/or import charges weight-averaged rates to determine the exported product. If the rebate exceeds paid on physically incorporated inputs, bounty or grant rate from all programs the amount of allowable indirect taxes and prior stage indirect taxes levied on benefitting exports of subject and import duties on physically the exported product at the final stage merchandise to the United States. incorporated inputs, the Department of production. Therefore, we Since the country-wide rate will, pursuant to § 355.44(d)(4)(i) of the preliminarily determine that there was calculated using this methodology was Proposed Regulations, find a no benefit from this program during the above de minimis, as defined by 19 CFR countervailable benefit equal to the POR. In future reviews, we will 355.7 (1994), we proceeded to the next difference between the Reembolso continue to examine this program to step and examined the net bounty or rebate rate and the allowable rate determine if there is an overrebate. grant rate calculated for each company determined by the Department (i.e., the II. Other Programs to determine whether individual overrebate). company rates differed significantly To determine whether there was an We examined the following programs from the weighted-average country-wide overrebate during the review period, the and preliminarily determine that rate, pursuant to 19 CFR 355.22(d)(3). Department requested the Government exporters of apparel did not apply for or All companies subject to the review had of Argentina (GOA) to provide receive benefits under them during the significantly different net bounty or information on any changes to the review period: grant rates during the review period Reembolso program for certain apparel. • Tax Deduction Under Decree 173/ pursuant to 19 CFR 355.22(d)(3). These According to the information provided, 85 • companies are treated separately for the Reembolso program continued to be Exemption from Stamp Taxes assessment and cash deposit purposes. governed by Decree 1555/86, which Under Decree 186/74 All other companies are assigned the • Industrial Parks modified the Reembolso program and • country-wide rate. set precise and transparent guidelines to Low Cost Loans for Projects Outside implement the refund of indirect taxes of Buenos Aires Analysis of Programs • Tucaman Regional Tax Incentives and import charges. The decree • I. Program Previously Determined to Patagonion Regional Tax Incentives established three broad rebate levels • Incentives for Exports from Confer Bounties or Grants covering all products and industry Southern Ports Rebate of Indirect Taxes (Reembolso/ sectors. The rates for levels I, II and III • Corrientes Regional Tax Incentive Reintegro) were 10 percent, 12.5 percent, and 15 • Export Financing percent, respectively. Based on the The Reembolso program provides a GOA’s 1986 calculation of the tax Preliminary Results of Review cumulative tax rebate paid upon export incidence in the apparel industry, this For the period January 1, 1991, and is calculated as a percentage of the industry was classified in level II. through December 31, 1991, we f.o.b. invoice price of the exported In April 1989, the GOA suspended preliminarily determine the net bounty merchandise. As stated in cash payment of rebates under the or grant to be zero for Agrest, Comercio, § 355.44(d)(4)(ii) of the Proposed Reembolso program. Pursuant to the IVA, and Leger, 15.87 percent ad Regulations (54 FR 23382), the Emergency Economic Law dated valorem for Pulloverfin and 0.76 percent Department will find that the entire September 25, 1989 (Law 23,697), the ad valorem for all other companies. In amount of any such rebate is suspension of cash payments was accordance with 19 CFR 255.7, any rate countervailable unless the following continued for an additional 180 days. less than 0.5 percent ad valorem is de conditions are met: (1) the program Rebates accrued during the suspension minimis. operates for the purpose of rebating period were to be paid in export credit If the final results of this review prior stage cumulative indirect taxes bonds. On March 4, 1990, the entire remain the same as these preliminary and/or import charges; (2) the program was suspended for 90 days by results, the Department intends to government accurately ascertained the Decree 435/90. Decree 1930/90 instruct the U.S. Customs Service to level of the rebate; and (3) the suspended cash payments of the assess countervailing duties as follows government reexamines its schedules reembolso for an additional 12-month for all shipments of the subject periodically to reflect the amount of period. merchandise exported from Argentina actual indirect taxes and/or import Decree 612/91, dated April 10, 1991, on or after January 1, 1991 and on or charges paid. In prior investigations and reinstated cash payments of the indirect before December 31, 1991: zero for administrative reviews of the Argentine tax rebates and import charges and Agrest, Comercio, IVA and Leger; 15.87 Reembolso program, the Department reduced the rate for the apparel industry percent ad valorem for Pulloverfin and determined that these conditions have from 12.5 percent to 8.3 percent. Decree 0.76 percent ad valorem for all other been met (See, e.g., Leather Wearing 1011/91, dated May 29, 1991, abolished companies. 42532 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices The Department also intends to [C±549±802] Applicable Statute and Regulations instruct the U.S. Customs Service to The Department is conducting this collect a cash deposit of estimated Ball Bearings and Parts Thereof From Thailand; Preliminary Results of a administrative review in accordance countervailing duties of zero percent of Countervailing Duty Administrative with section 751(a) of the Tariff Act of the f.o.b. invoice price on all shipments Review 1930, as amended (the Act). Unless of this merchandise from Agrest, otherwise indicated, all citations to the Comercio, IVA and Leger, and to collect AGENCY: Import Administration, statute and to the Department’s a cash deposit of 15.87 percent of the International Trade Administration, regulations are in reference to the f.o.b. invoice price on all shipments of Department of Commerce. provisions as they existed on December this merchandise from Pulloverfin and ACTION: Notice of preliminary results of 31, 1994. 0.76 percent of the f.o.b. invoice price countervailing duty administrative Scope of Review on shipments of this merchandise from review. other companies from Argentina Imports covered by this review are entered, or withdrawn from warehouse, SUMMARY: The Department of Commerce ball bearings and parts thereof. Such for consumption on or after the date of (the Department) is conducting an merchandise is described in detail in publication of the final results of this administrative review of the Appendix A to this notice. The review. countervailing duty order on ball Harmonized Tariff Schedule (HTS) item bearings and parts thereof from numbers listed in Appendix A are Parties to the proceeding may request Thailand. We preliminarily determine provided for convenience and Customs disclosure of the calculation the total bounty or grant to be 1.33 purposes. The written description methodology and interested parties may percent ad valorem for all companies for remains dispositive. request a hearing not later than 10 days the period January 1, 1993, through Calculation Methodology after the date of publication of this December 31, 1993. If the final results notice. See 19 CFR 355.38(b). Interested remain the same as these preliminary In the first administrative review, parties may submit written arguments in results of administrative review, we will respondents claimed that the F.O.B. case briefs on these preliminary results instruct the U.S. Customs Service to value of the subject merchandise within 30 days of the date of assess countervailing duties as indicated entering the United States is greater publication. Rebuttal briefs, limited to above. We invite interested parties to than the F.O.B. price charged by the arguments raised in case briefs, may be comment on these preliminary results. companies in Thailand (57 FR 26646; submitted seven days after the time EFFECTIVE DATE: August 16, 1995. June 15, 1992). They explained that this limit for filing the case brief. Parties discrepancy is due to a mark-up charged who submit written arguments in this FOR FURTHER INFORMATION CONTACT: by the parent company, located in a proceeding are requested to submit with Dana Mermelstein or Kelly Parkhill, third country, through which the Office of Countervailing Compliance, the argument (1) a statement of the issue merchandise is invoiced. However, the Import Administration, International and (2) a brief summary of the subject merchandise is shipped directly Trade Administration, U.S. Department argument. Any hearing, if requested, from Thailand to the United States and of Commerce, 14th Street and will be held seven days after the is not transshipped, combined with Constitution Avenue NW., Washington, other merchandise, or repackaged with scheduled date for submission of D.C. 20230, telephone: (202) 482–2786. rebuttal briefs. Copies of case briefs and other merchandise. In other words, for rebuttal briefs must be served on SUPPLEMENTARY INFORMATION: each shipment of subject merchandise, there are two invoices and two interested parties in accordance with 19 Background CFR 355.38(e). corresponding F.O.B. export prices: 1) On May 3, 1989, the Department the F.O.B. export price at which the Representatives of parties to the published in the Federal Register (54 subject merchandise leaves Thailand, proceeding may request disclosure of FR 19130) the countervailing duty order and on which subsidies from the Royal proprietary information under on ball bearings and parts thereof from Thai Government (RTG) are earned by administrative protective order no later Thailand. On May 4, 1994, the the companies, and upon which the than 10 days after the representative’s Department published in the Federal subsidy rate is calculated; and 2) the client or employer becomes a party to Register a notice of ‘‘Opportunity to F.O.B. export price which includes the the proceeding, but in no event later Request Administrative Review’’ (59 FR parent company mark-up, and which is than the date the case briefs, under 23051) of this countervailing duty order. listed on the invoice accompanying the section 355.38(c), are due. The On May 31, 1994, Torrington Company, subject merchandise as it enters the Department will publish the final the petitioner, requested an United States, and upon which the cash results of this administrative review administrative review of the order. On deposits are collected and the including the results of its analysis of May 31, 1994, Pelmec Thai Ltd. countervailing duty is assessed. In prior issues raised in any case or rebuttal brief (Pelmec), NMB Thai Ltd. (NMB Thai), reviews, we verified on a transaction- or at a hearing. and NMB Hi-Tech Bearings Ltd. (NMB specific basis the direct correlation This administrative review and notice Hi-Tech), the respondent companies in between the invoice which reflects the are in accordance with section 751(a)(1) prior reviews, also requested an F.O.B. price on which the subsidies are of the Act (19 U.S.C. 1675(a)(1)) and 19 administrative review. earned and the invoice which reflects CFR 355.22. On June 15, 1994 (59 FR 30770), we the marked-up price that accompanies initiated the review, covering the period each shipment as it enters the United Dated: August 8, 1995. January 1, 1993, through December 31, States. Susan G. Esserman, 1993. The review covers nine programs Respondents argued that the Assistant Secretary for Import and three related producers/exporters, calculated ad valorem rate should be Administration. NMB Thai, Pelmec, and NMB Hi-Tech, adjusted by the ratio of the export value [FR Doc. 95–20201 Filed 8–15–95; 8:45 am] which are wholly owned by Minebea from Thailand to the export value BILLING CODE 3510±DS±P Co., Ltd., of Japan. charged by the parent company to the Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42533 U.S. customer so that the amount of The BOI licenses for Pelmec, NMB The BOI Announcement Number 2/1993 countervailing duties collected would Thai and NMB Hi-Tech all originally specifies that promoted projects reflect the amount of subsidies included export requirements. In the approved after April 1, 1993, and bestowed. The Department agreed and Final Affirmative Countervailing Duty classified under category 4.8 must be made this adjustment in prior Determination and Countervailing Duty located in industrial promotion zones 2 administrative reviews (57 FR 26646, Order: Ball Bearings and Parts Thereof or 3. Furthermore, export performance June 15, 1992; and 58 FR 36392, July 7, from Thailand (54 FR 19130; May 3, continues to be a requirement for certain 1993). Since the mark-up is not part of 1989), we determined that because the IPA benefits in zones 2 or 3. the export value upon which the receipt of benefits under the IPA We preliminarily determine that IPA respondents earn bounties or grants, the licenses was contingent upon export benefits are countervailable because Department has followed the performance, these benefits were during the review period IPA benefits methodology adopted in prior countervailable. However, effective continued to be tied to export administrative reviews, and calculated January 1, 1990, producers of electronic performance for manufacturers of the ad valorem rate as a percentage of parts (BOI Category 4.6) became eligible subject merchandise. the original export value from Thailand to apply to have export requirements NMB Thai and NMB Hi-Tech received and then multiplied this rate by the eliminated from their BOI licenses. Most benefits under three sections of the IPA adjustment ratio—the original export of the subject merchandise is classified during the review period: IPA Sections value from Thailand divided by the by BOI under Category 4.6, and 31, 28, and 36(1). Pelmec received marked-up value of the goods entering consequently, NMB Thai, NMB Hi-Tech, benefits under IPA Sections 28 and the United States. and Pelmec all applied for eliminations 36(1). We did not calculate a separate rate of their export requirements. NMB Section 31: IPA Section 31 allows for each company because NMB Thai, Thai’s export requirements were lifted companies an exemption from payment Pelmec, and NMB Hi-Tech are wholly effective October 16, 1992, for one of corporate income tax on profits owned by one parent company, and are license, and effective November 9, 1992, derived from promoted exports. NMB Thai and NMB Hi-Tech claimed an therefore related. See Final Affirmative for its three remaining licenses. The income tax exemption under Section 31 Countervailing Duty Determination: export requirements for NMB Hi-Tech’s on the income tax return filed during Grain-Oreiented Electrical Steel (GOES) two licenses were lifted effective from Italy (59 FR 18357, 18366, April the review period. February 26, 1990, and November 19, Section 28: Prior to 1992, IPA Section 18, 1994). As a result of this 1990. Export requirements were 28 allowed companies to import fixed relationship, we considered the three eliminated from two of Pelmec’s three assets free of import duties, the business companies as one corporate entity in licenses, effective November 9, 1992. tax, and the local tax. However, effective our calculations. We calculated the However, because the BOI considers January 1, 1992, the RTG eliminated bounty or grant by first totalling the some of the subject merchandise both the business and the local tax and benefits received by the three produced by Pelmec under one of its instituted a value added tax (VAT) companies for each program used. BOI licenses to be ‘‘ball bearings and system. Dividing these sums by the total Thai parts for general industry,’’ the export According to Section 21(4) of the VAT export value for the three companies, requirement has not been eliminated Act, if Section 28 benefits were granted we calculated the unadjusted bounty or completely from its remaining license. by the BOI to a company before January grant for each program used. As Since export requirements remain in 1, 1992, that company, when importing described above, we adjusted these rates place for certain ball bearings subject to fixed assets under Section 28, would by multiplying them by the ratio of the the countervailing duty order and the continue to be subject to the business original export price from Thailand to subject merchandise constitutes one tax provisions under Chapter IV, Title II, the marked-up price of the goods class or kind of merchandise, we of the Revenue Code before being entering the United States. Finally, we preliminarily determine that IPA amended by the VAT Act. In accordance summed the adjusted bounty or grant benefits continued to be tied to export with Section 21(4), the company would for each program, to arrive at the total performance for manufacturers of be required to pay the business and country-wide bounty or grant. subject merchandise during the review local taxes only if its BOI license Analysis of Programs period. requirements were violated. Section Effective April 1, 1993, the BOI issued 21(4) of the VAT Act applies to Pelmec, 1. Investment Promotion Act of 1977 - new policies and criteria for investment NMB Thai, and NMB Hi-Tech because Sections 31, 28 and 36(1) promotion in BOI Announcement all of their licenses were granted before The Investment Promotion Act of Number 1/1993. Under BOI January 1, 1992, and contain Section 28 1977 (IPA) is administered by the Board Announcement Number 1/1993, tax and benefits. The respondents argued in of Investment (BOI) and is designed to duty privileges for promoted projects their questionnaire response that given provide incentives to invest in approved after April 1, 1993, are the provisions of the VAT Act and, Thailand. In order to receive IPA contingent upon location of the specifically, Section 21(4), their benefits, each company must apply to promoted company in one of three types exemption from the business and local the BOI for a Certificate of Promotion of investment promotion zones. taxes no longer constitutes a benefit to (license), which specifies goods to be Through BOI Announcement Number 2/ the companies because 1) no other produced, production and export 1993, which also became effective on companies are required to pay the requirements, and benefits approved. April 1, 1993, the BOI revised its list of business and local taxes, and 2) under These licenses are granted at the activities eligible for investment Section 21(4), payment of the business discretion of the BOI and are promotion. In this revised list, all types and local taxes serves only as a penalty periodically amended or reissued to of ball bearings and parts thereof were for noncompliance with BOI license change benefits or requirements. Each reclassified under industrial category requirements. We verified that under IPA benefit for which a company is 4.8, ‘‘Manufacture of fabricated metal the new VAT law, companies are no eligible must be stated specifically in products, including metal parts for longer required to pay business and the license. automotive and electronic products.’’ local taxes with the exception of the 42534 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices noncompliance penalty noted above. of the VAT Act during the review mark-up discussed in the ‘‘Calculation For these reasons, we preliminarily period. Methodology’’ section above. On this determine that the business and local Section 36(1): IPA Section 36(1) basis, we preliminarily determine the tax exemptions under Section 28 no allows companies to import essential bounty or grant from residual electricity longer constitute a countervailable materials (non-fixed assets that are not discounts to be less than 0.005 percent benefit for companies subject to Section physically incorporated into the ad valorem during the review period. 21(4) of the VAT Act. exported good) free of import duties. 3. Tax Certificates for Exporters However, under provisions of Section Pelmec, NMB Thai, and NMB Hi-Tech 21(4) of the VAT Act, companies that all claimed such exemptions during the The RTG issues tax certificates to were granted Section 28 benefits under review period. exporters of record which are the IPA before January 1, 1992, are not To calculate the benefit from Sections transferable and which rebate indirect required to pay VAT on imports of fixed 31, 28, and 36(1) of the IPA, we taxes and import duties levied on inputs assets. In the 1992 and 1993 followed the same methodology that has used to produce exports. This rebate administrative reviews, the respondents been used in prior administrative program is provided for in the ‘‘Tax and argued that this exemption from VAT on reviews (see, e.g., 58 FR 16174, March Duty Compensation of Exported Goods imports of fixed assets did not 25, 1993; 57 FR 9413, March 18, 1992). Produced in the Kingdom Act’’ (Tax and constitute a benefit to the companies For Section 31, we calculated the Duty Act). because all companies are effectively benefit by calculating the difference The Thai Ministry of Finance exempted from VAT on their imports of between what each company paid in computes the value of the rebate rates fixed assets. According to Section 82 of corporate income tax during the review under the Tax and Duty Act based on the VAT Act, the VAT liability is period and what it would have paid the Basic Input-Output Table of absent the exemption. We did this by computed by subtracting the ‘‘input tax’’ Thailand (I–O table). Using this table, multiplying the corporate income tax (the VAT paid) from the ‘‘output tax’’ the Ministry computes the value of total rate in effect during the review period (the VAT collected). Consequently, inputs (both imported and domestic) at by the amount of each company’s companies that pay VAT on imports of ex-factory prices, and the import duties income that was exempted from income fixed assets are effectively exempted and indirect taxes on each input. As tax. For Sections 28 and 36(1), we from this VAT payment as they receive determined in the Final Affirmative calculated the benefit by obtaining the a credit for the VAT they paid on Countervailing Duty Determination and amount of import duties that would purchases of all inputs, including Countervailing Duty Order: Ball have been paid on the imports absent imports of fixed assets, when their Bearings and Parts Thereof from the exemption. We then added all duty Thailand (54 FR 19130; May 3, 1989), monthly VAT liability is computed. In and tax savings under all the IPA these rebates are countervailable only to the 1992 administrative review, we programs and divided this aggregate the extent that the remissions of duties examined this issue at verification. We benefit by the total export value of the and taxes exceed those actually levied confirmed that under the VAT system, subject merchandise (all companies in on physically incorporated inputs. companies receive credit for the VAT this review continued to receive IPA paid on the purchases of inputs and, as benefits contingent upon export Prior to 1992, there were two rates for a result, no VAT is effectively paid by performance under the pre-April 1, tax certificates, the ‘‘A’’ rate, which companies on these purchases. Since 1993, BOI regulations; therefore, we rebated import duties and business VAT liability is computed on a monthly calculated the benefit using total exports taxes, and the ‘‘B’’ rate, which rebated basis, any possible time-value-of-money rather than total sales). We then made only business taxes. Exporters of the benefit under Section 21(4) of the VAT the adjustment for the parent company subject merchandise were eligible for Act in this review would be mark-up discussed in the ‘‘Calculation the ‘‘B’’ rate only. Because of their IPA insignificant. On this basis, we Methodology’’ section above. On this benefits, they were ineligible to receive preliminarily determine that the basis, we preliminarily determine the the ‘‘A’’ rate. exemption of the VAT on imports of bounty or grant from IPA Sections 31, Effective January 1, 1992, as a result fixed assets under Section 21(4) of the 28 and 36(1) to be 1.33 percent ad of the adoption of the VAT, the ‘‘B’’ rate VAT Act does not constitute a valorem during the review period. was terminated and the ‘‘A’’ rate was countervailable benefit to the companies revised to rebate only import duties. specified in Section 21(4). In future 2. Electricity Discounts for Exporters Accordingly, none of the companies administrative reviews, however, the Electricity discounts for exporters under review were eligible to apply for Department will continue to examine were terminated effective January 1, or earn rebates under this program provisions of the VAT Act, including 1990. However, because government during the review period. Based on Section 21(4), to ascertain that no authorities can defer action on company prior Department practice, we countervailable benefits are being applications for up to five years, countervailed the benefits under the Tax provided to manufacturers of subject residual benefits are possible up to five Certificates program at the time the tax merchandise. years after termination of the program. certificates were earned. See, e.g., Final Since the business and local tax Because this program was contingent Affirmative Countervailing Duty exemptions under Section 28 of the IPA upon exports, we preliminarily Determination: Carbon Steel Butt-Weld and the VAT exemption under Section determine that it constitutes an export Pipe Fittings from Thailand, 55 FR 21(4) of the VAT Act do not confer subsidy. 1695, 1699 (January 18, 1990). All tax countervailable benefits to companies NMB Thai received such residual certificates received during the 1993 subject to Section 21(4) of the VAT Act, benefits during the review period. We review period were earned in prior we preliminarily determine that only calculated the benefit attributable to years and were countervailed in prior the exemptions of import duties on these residual benefits by dividing the review periods. As no tax certificates fixed assets under Section 28 of the IPA amount of the electricity discount by the were earned during the review period, continue to provide countervailable total F.O.B. export value of subject we preliminarily determine that benefits to the respondent companies merchandise. We then made the producers of the subject merchandise which were all subject to Section 21(4) adjustment for the parent company received no bounty or grant from the tax Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42535 certificate program during the review the proceeding, but in no event later where the part will be subject to heat period. than the date the case briefs, under 19 treatment after importation. CFR 355.38(c), are due. The Department 4. Other Programs [FR Doc. 95–20213 Filed 8–15–95; 8:45 am] will publish the final results of this BILLING CODE 3510±DS±P We also examined the following administrative review including the programs and preliminarily determine results of its analysis of issues raised in that the exporters of the subject any case or rebuttal brief, or at a [C±301±003; C±301±601] merchandise did not apply for or hearing. receive benefits under these programs Roses and Other Cut Flowers From This administrative review and notice during the review period: Colombia; Miniature Carnations From are in accordance with section 751(a)(1) • Export Packing Credits Colombia; Preliminary Results of • Rediscount of Industrial Bills of the Act (19 U.S.C. 1675(a)(1) and 19 Countervailing Duty Administrative • Export Processing Zones CFR 355.22). Reviews of Suspended Investigations • IPA Sections 33 and 36(4) Dated: August 8, 1995. • AGENCY: Import Administration, Reduced Business Taxes for Susan G. Esserman, Producers of Intermediate Goods for International Trade Administration, Assistant Secretary, for Import Department of Commerce. Export Industries Administration. • International Trade Promotion ACTION: Notice of Preliminary Results of Fund Appendix A Countervailing Duty Administrative Preliminary Results of Review Scope of the Review Reviews of Suspended Investigations. As a result of our review, we The products covered by this review, SUMMARY: The Department of Commerce preliminarily determine the total bounty ball bearings, mounted or unmounted, (the Department) is conducting or grant to be 1.33 percent ad valorem and parts thereof, are described below. administrative reviews of the for the period January 1, 1993, through agreements suspending the December 31, 1993. Ball Bearings, Mounted or Unmounted, countervailing duty investigation on If the final results of this review and Parts Thereof roses and other cut flowers (roses) from remain the same as the preliminary Colombia and the countervailing duty results, the Department intends to These products include all investigation on miniature carnations instruct the Customs Service to assess antifriction bearings which employ balls (minis) from Colombia. These reviews countervailing duties of 1.33 percent of as the rolling element. During the cover the period of review (POR) the F.O.B. invoice price on all review period, imports of these products January 1, 1993, through December 31, shipments from Thailand of the subject were classifiable under the following 1993, and eleven programs. We merchandise exported on or after categories: antifriction balls; ball preliminarily determine that the January 1, 1993, and on or before bearings with integral shafts; ball Government of Colombia (GOC) and the December 31, 1993. The Department bearings (including radial ball bearings) signatories/exporters of roses and minis also intends to instruct the Customs and parts thereof; ball bearing type have complied with the terms of the Service to collect a cash deposit of pillow blocks and parts thereof; ball suspension agreements. We invite estimated countervailing duties of 1.33 bearing type flange, take-up, cartridge, interested parties to comment on these merchandise entered, or withdrawn and hanger units, and parts thereof; and results. other bearings (except tapered roller from warehouse, for consumption on or EFFECTIVE DATE: August 16, 1995. after the date of publication of the final bearings) and parts thereof. Wheel hub units which employ balls as the rolling FOR FURTHER INFORMATION CONTACT: results of this review. Jean Kemp or Stephen Jacques, Office of Interested parties may request element are subject to the review. Agreements Compliance, Import disclosure of the calculation Finished but unground or semiground Administration, International Trade methodology and may request a hearing balls are not included in the scope of Administration, U.S. Department of within 10 days of the date of publication this review. Imports of these products Commerce, 14th Street and Constitution of this notice. Case briefs or other are currently classifiable under the Avenue, N.W., Washington, D.C. 20230, written comments from interested following HTS item numbers: telephone: (202) 482–3793. parties may be submitted not later than 8482.10.10, 8482.10.50, 8482.80.00, 8482.91.00, 8482.99.10, 8482.99.70, 30 days after the date of publication of SUPPLEMENTARY INFORMATION: this notice. Rebuttal briefs and rebuttal 8483.20.40, 8483.20.80, 8483.30.40, comments, limited to issues raised in 8483.30.80, 8483.90.20, 8483.90.30, Applicable Statute and Regulations the case briefs, may be filed not later 8483.90.70, 8708.50.50, 8708.60.50, Unless otherwise indicated, all than 37 days after the date of 8708.99.50. citations to the statute and to the publication of this notice. Any hearing, This review covers all of the subject Department’s regulations are in if requested, will be held seven days bearings and parts thereof outlined reference to the provisions as they after the scheduled date for submission above with certain limitations. With existed on December 31, 1994. However, of rebuttal briefs. Copies of case briefs regard to finished parts (inner race, references to the Department’s and rebuttal briefs must be served on outer race, cage, rollers, balls, seals, Countervailing Duties; Notice of interested parties in accordance with shields, etc.), all such parts are included Proposed Rulemaking and Request for section 355.38(e) of the Department’s in the scope of this review. For Public Comments (54 FR 23366 (May 31, regulations. unfinished parts (inner race, outer race, 1989)) (Proposed Regulations), are Representatives of parties to the rollers, balls, etc.), such parts are provided solely for further explanation proceeding may request disclosure of included if (1) they have been heat of the Department’s countervailing duty proprietary information under treated, or (2) heat treatment is not practice. Although the Department has administrative protective order no later required to be performed on the part. withdrawn the particular rulemaking than 10 days after the representative’s Thus, the only unfinished parts that are proceeding pursuant to which the client or employer becomes a party to not covered by this review are those Proposed Regulations were issued, the 42536 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices subject matter of these regulations is de Proyectos de Desarrollo (FONADE). granted by BANCOLDEX as previously being considered in connection with an The suspension agreement for roses granted by PROEXPO. ongoing rulemaking proceeding which, covers the ten programs listed above, as There are six major BANCOLDEX among other things, is intended to well as (11) Air Freight Rates. credit lines: Short-term working capital conform the Department’s regulations of Colombian peso (peso) loans; medium- Analysis of Programs the Uruguay Round Agreements Act term working capital peso loans; short- (See 60 FR 80 (January 3, 1995)). We examined the following programs and long-term working capital U.S. subject to the suspension agreements: dollar (dollar) loans; long-term Background capitalization peso loans; long-term On January 5, 1994, the Department (1) Tax Reimbursement Certificate capitalization dollar loans; and long- published in the Federal Register (59 Program term fixed investment loans. In FR 564) a notice of ‘‘Opportunity to The ‘‘Certificado de Reembolso accordance with Departmental practice, Request an Administrative Review’’ for Tributario’’ (CERT) or Tax we will treat medium-term working the 1993 review period. On January 31, Reimbursement Certificate program capital peso loans as long-term working 1994 the Colombian Association of allows exporters to receive a full or capital peso loans. Flower Exporters (Asocoflores) partial rebate on indirect taxes based on Under the terms of the suspension requested administrative reviews of the the value of their exports of specific agreements, Colombian flower growers/ suspended countervailing duty products to specific destinations. The exporters will not apply for, or receive investigations covering roses and minis GOC determines the CERT levels based any export financing for BANCOLDEX for the 1993 period. On February 17, on product and market conditions. other than that offered on non- 1994, the Department initiated these Under the terms of the suspension preferential terms, and at or above the reviews (59 FR 7979). The Department established Department benchmark agreements, Colombian flower growers/ is now conducting these reviews in interest rates. For the roses and minis exporters will be apply for, or receive, accordance with section 751 of the suspension agreements in the Roses and tax certificates or other rebates, Tariff Act of 1930, as amended (the Other Cut Flowers from Colombia and remissions, or exemptions under the Tariff Act), and 19 CFR 355.22. Miniature Carnations from Colombia: CERT program for exports of the subject Final Results of Countevailing Duty Scope of Review merchandise to the United States and Administrative Reviews of Suspended Puerto Rico. Moreover, since 1987, The products covered by these Investigations, (published concurrently when the GOC restructured the CERT administrative reviews constitute two with this notice), the Department program, the level of CERT payments for separate ‘‘classes or kinds’’ of established new benchmark interest merchandise: roses and minis from exports of the subject merchandise to rates for all short- and long-term peso Colombia. During the POR, such the United States and Puerto Rico wee loans. The Department’s short-term merchandise covered by these set at zero. Therefore, exporters of the benchmark interest rate is nominal DTF suspension agreements was classifiable subject merchandise are no longer (the Colombian Central Bank time under Harmonized Tariff Schedule eligible to receive countervailable deposit rate, the ‘‘Depositos a Termino (HTS) item numbers 0603.10.60, benefits. Fijo’’) plus 3.66 percentage points, and 0603.10.70, 0603.10.80, and 0603.90.00 At verification, we examined for long-term loans nominal DTF plus for roses, and 0603.10.30 for minis. The documentation at the GOC and found 3.66 percentage points and 0.25 HTS item numbers are provided for that this program was not used by percentage point for each additional convenience and Customs purposes. exporters of the subject merchandise for year after the first. This change in the The written descriptions remain exports to the United States and Puerto benchmark interest rates will be dispositive. Rico during the POR. In addition, at effective 14 days after publication of the These reviews of the suspended verification of the six companies, we final results for the administrative investigations involve over 800 examined documentation and reviews 1991 and 1992 (See Roses and Colombian flower growers/ exporters of confirmed that they did not use the Other Cut Flowers from Colombia and roses, over 100 Colombian flower program for exports of the subject Miniature Carnations from Colombia: growers/exporters of minis, as well as merchandise to the United States and Final Results of Countevailing Duty the GOC. We verified the responses Puerto Rico during the POR. Therefore, Administrative Reviews of Suspended from six growers/exporters of the we preliminarily determine that the Investigations, (published concurrently subject merchandise: Flores La Conchita GOC has eliminated the subsidy on the with this notice). As discussed below, German Ribon E. en C. (roses and subject merchandise by abolishing this we preliminarily determine to maintain minis); Tuchany, S.A. (roses); Flores de program for exports of the subject those benchmark rates. Exportacion, S.A. (roses and minis); merchandise to the United States and Queen’s Flowers of Colombia Ltda. Puerto Rico and that this program did Colombian Peso Loans (roses and minis); Florval, S.A. (roses not confer any countervailable benefits At verification, we examined GOC and minis); and Flores de Funza, S.A. upon exports of the subject merchandise documents and confirmed that (roses and minis) (collectively, the six to the United States and Puerto Rico BANCOLDEX charged interest rates on companies). The suspension agreement during the POR. its short- and long-term peso loans for minis covers ten programs: (1) Tax above the established Department (2) BANCOLDEX Reimbursement Certificate Program; (2) benchmark interest rates in effect during BANCOLDEX (funds for the promotion On January 2, 1992, the former Fondo the POR. In addition, we found that of exports); (3) Plan Vallejo; (4) Free de Promocion de Exportaciones BANCOLDEX issued the loans on non- Industrial Zones; (5) Export Credit (PROEXPO) transferred from a preferential terms. We also examined Insurance; (6) Countertrade; (7) government-administered fund to a the six companies’ accounting records Research and Development; (8) Instituto commercial bank and was renamed which confirmed that the companies de Fomento Industrial (IFI); (9) Banco de Comercio Exterior de Exterior received BANCOLDEX peso loans for Financier de Desarrollo Territorial (BANCOLDEX). The same resolutions the subject merchandise on non- (FINDETER); and (10) Fondo Financiero continued to govern export loans preferential terms and at interest rates at Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42537 or above the Department benchmark percentage points for each year after the exempt exporters from certain indirect rates for exports of the subject first, including any grace period, taxes and customs duties assessed on merchandise to the United States and reflecting the spread between imported capital equipment used to Puerto Rico in effect during the POR. BANCOLDEX short- and long-term produce finished products for export. Therefore, we preliminary determine loans. Loans provided at or above the The Instituto Colombiano de Comercio that BANCOLDEX did not confer any benchmark will not be considered Exterior (INCOMEX) administers the countervailable benefits upon exports of preferential. Plan Vallejo program. the subject merchandise to the United Under the terms of the suspension U.S. Dollar Loans States and Puerto Rico during the POR. agreements, Colombian flower growers/ In order to update previous At verification, we examined GOC exporters will not apply for or receive benchmark rates determined by the documents and confirmed that any benefits from duty and tax Department, we reviewed interest rates BANCOLDEX issued short- and long- exemptions for capital equipment under in Columbia to define what interest rate term dollar loans. In the case of short- Plan Vallejo for exports of the subject benchmarks were appropriate for future and long-term dollar loans, there were merchandise to the United States and BANCOLDEX loans. In the case of short- no benchmark rates in effect during the Puerto Rico. At verification, we and long-term peso BANCOLDEX loans, POR, because these loans were examined the GOC’s documentation and the Department confirmed at introduced in 1991, i.e., after the last confirmed that this program was not verification that the GOC adopted rates completed reviews of the suspension used by the exporters of the subject based on the Colombian fixed deposit agreements. merchandise for exports to the United rate, DTF, because the DTF rates more In order to establish dollar benchmark States and Puerto Rico during the POR. accurately reflect interest rate rates. we followed the same calculation Also, GOC officials stated that, during fluctuations in the market. While the methodology as in the final notice for the POR, no flower producer applied for Department verified that there is no Roses and Other Cut Flowers and Plan Vallejo benefits. In addition, we single, predominant source of Miniature Carnations from Columbia; verified that the six companies did not alternative financing in Columbia, we Final Results of Countervailing Duty use the program for capital equipment have determined that the independent Administrative Reviews of Suspended during the POR. Therefore, we government agency, FINAGRO (Fondo Investigations; (published concurrently preliminarily determine that this para el financiameinto del Sector with this notice). We confirmed at program did not confer any Agropecuario), a major intermediary verification that during the POR, countervailable benefits upon exports of lender to the agricultural sector, is an BANCOLDEX loan interest rates on the subject merchandise of the United appropriate alternative source of dollar loans charged to Colombian States and Puerto Rico during the POR. financing for the Department’s flower growers/exporters were based In addition, we preliminarily determine benchmarks. FINAGRO is the successor upon the London Interbank Offered Rate that Plan Vallejo has been abolished for to the Fondo Financiero Agropecuario (LIBOR) plus a variable spread. The the subject merchandise in Resolution (FFA). Department determines that LIBOR will 1212 since flower growers are ineligible The most recent FINAGRO short-term be the basis of the benchmark for dollar to receive benefits for exports to the rate is equal to DTF plus up to 6 loans, because LIBOR is used as the United States and Puerto Rico. percentage points. Because the basis for dollar loan interest rates in Department is unable to set the Colombia. Therefore, the Department (4) Free Industrial Zones benchmark as a range (i.e., DTF plus up preliminarily determines that for the In December 1985, Law 109 to 6 percentage points), the Department short-term dollar loans the Department’s established Free Industrial Zones (FIZs) established a benchmark rate applying benchmark for dollar-based loans in for industrial and service sector the methodology used in the final Colombia will be the six-month LIBOR purposes. Certain regions in Colombia determination for the 1991 and 1992 rate in effect at the time of the loan plus are designated as FIZs. administrative reviews (See Roses and 1.52 percentage points. Based on the At verification, we examined Other Cut Flowers and Miniature same methodology used for short-term documentation at the Ministry of Carnations from Columbia; Final dollar loan benchmark, we preliminarily Foreign Trade and determined that there Results of Countervailing Duty determine that for long-term dollar were not any flower producers located Administrative Reviews of Suspended loans the Department’s benchmark for in FIZs. Therefore, we preliminarily Investigations; (published concurrently dollar-based loans in Colombia will be determine that this program did not with this notice). In calculating the the six-month LIBOR rate in effect at the confer any countervailing benefits upon prospective benchmarks for short- and time of the loan plus 2.82 percentage exports of the subject merchandise to long-term peso loans, the Department points. the United States and Puerto Rico preliminarily determines that the most It should be noted that the rate during POR. We also preliminarily recent verified weighted-average interest specified here was calculated based on determine that during the POR the GOC rate on all loans financed by FINAGRO effective, not nominal, interest rates; the had eliminated the subsidy on this through Caja Agraria, i.e., DTF plus 3.66 effective rate is the equivalent to the merchandise by abolishing this program percentage points is the appropriate nominal rate calculated on the basis of for the merchandise. benchmark for short-term financing. interest being payable at the end of the (5) Export Credit Insurance Consequently, the Department quarter. BANCOLDEX should set the preliminarily determines that the nominal interest rate for dollar-based Decree 444, issued in 1967, appropriate benchmark for the short- loans at a level that is high enough to established the Export Credit Insurance term peso loans rate is the nominal DTF ensure that the effective interest rate of program. Under the Export Credit plus 3.66 percentage points. The these loans are at or above the Insurance program a company may Department also preliminarily Department’s new benchmark. receive insurance to cover certain determines that the appropriate commercial expenses (transportation, benchmark for long-term peso loans is (3) Plan Vallejo custom duties, insurance expenses, etc.) the nominal DTF plus 3.66 percentage Plan Vallejo was established in 1967 that it would have difficulty covering as points, plus an additional 0.25 under decree 444. Its purpose is to a result of the insolvency of its foreign 42538 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices client. Several commodities are flowers subject to the suspension four years at TCC plus five percentage ineligible for the program: coffee in agreement was reduced to zero. In 1985, points for working capital loans and for certain forms, crude leather, oil and by- the GOC issued Resolution 10, which terms of up to twelve years for fixed products, precious and semiprecious established a fund from the CERT asset peso loans at TCC plus five stones, gold, perishable goods, and payments that were withheld for the percentage points plus a 0.25 percentage others. The subject merchandise is cultivation of and general and point for each year after the fifth. In classified under the ‘‘perishable goods’’ technological research on all flowers. addition, ATPA fixed asset loans are category which renders all exports of The resolution requires that any funds available in dollars at LIBOR plus five the subject merchandise ineligible for expended under this resolution be percentage points plus 0.25 for each the program. disbursed in a manner consistent with year after the fifth. Under the terms of the suspension the suspension agreements. The agreements, Colombian flower growers/ resolution 10 account was officially We verified that the non-export lines exporters shall notify the Department in closed in October 1991 and no of credit provided by IFI were granted writing prior to applying for any benefit contributions were made to the account to a broad range of Colombian industry from the Export Credit Insurance during the POR. Therefore, we sectors including: agriculture, mining, program for exports of the subject preliminarily determine that this textiles, metallic products, financial merchandise to the United States and program did not confer any establishments, and chemicals, rubber Puerto Rico. Because we did not receive countervailable benefits upon exports of and plastics. Therefore, we any such notification and confirmed the subject merchandise to the United preliminarily determine that IFI’s non- that subject merchandise is ineligible for States and Puerto Rico during the POR. export lines of credit are not provided this program, we preliminarily We also preliminarily determine that to a specific enterprise or industry or determine that this program did not the GOC has eliminated the subsidy on group thereof and that they are not confer any countervailable benefits the merchandise by abolishing this countervailable. upon exports of the subject merchandise program for the subject merchandise. Furthermore, we verified that no to the United States and Puerto Rico (8) Instituto de Fomento Industrial (IFI) Colombian flower growers/exporters during the POR. We also preliminarily Loans received loans under the two export determine that the GOC has eliminated The Instituto de Fomento Industrial, credit lines during the POR. We the subsidy by abolishing this program preliminarily determine that the GOC for the subject merchandise. or Institute for the Promotion of the Industrial Sector, is a branch of the and the Colombian flower growers/ (6) Countertrade Colombian Ministry of Economic exporters of the subject merchandise Law 48 of 1983 established a special Development. It provides financing to were in compliance with the suspension system for three types of exchange all sectors of the Colombian economy agreements because IFI’s export credit arrangements: (1) countertrade; (2) and to large and small companies. lines were not used by Colombian compensation offsets; and (3) three-way Companies with assets above 1.25 flower growers/exporters of the subject trade. GOC officials have stated that in billion pesos may borrow directly from merchandise during the POR. However, 1986, Decree 1459 terminated the IFI, while smaller companies may flower growers/exporters of the subject exchange system and there has been no borrow funds from IFI which are merchandise are eligible to apply for follow-up legislation which would re- rediscounted through financial and receive IFI’s export credit lines. establish the exchange system. We intermediaries. Any such loans must be on non- confirmed that this program had been Two IFI credit lines are available to preferential terms, and at or above the terminated on that date. Therefore, we only exporters. These include a credit Department’s most recent benchmarks preliminarily determine that this line for new exporters and relocation of (See Section II.c of the suspension program did not confer any export enterprises, and the ANDEAN agreements). We preliminarily countervailing benefits upon exports of Trade Preference Act (ATPA) line of determine that the short- and long-term the subject merchandise to the United credit. The other IFI credit lines are benchmarks for IFI loans are the same States and Puerto Rico during the POR. available to all enterprises. These as those for BANCOLDEX peso and We also preliminarily determine that include a commercial sector line of dollar financing apply (See Section 2 the GOC has eliminated the subsidy by credit, a line of credit for free zones, a above). abolishing this program for the subject line of credit for working capital, a line merchandise. of credit for capital equipment, a (9) Financiera de Desarrollo Territorial capitalization line of credit, ordinary (FINDETER) Other Programs resource loans, a line of credit for motel FINDETER, a government financial Although not specifically listed in the and tourist projects, and a line of credit entity, finances state and municipal suspension agreements, we examined for market studies. Loans are available governments and governmental entities the following programs: in both pesos and dollars. Loan terms and rates vary by credit to promote urban and regional (7) Research and Development line and length of the loan. Fixed asset development projects relating to Columbian flower exporters, on a dollar loans are available for five-year infrastructure and development in the voluntary basis, allowed the Central terms at LIBOR plus five percentage public sector. The Department verified Bank to withhold a certain percentage of points. Peso working capital loans are that all projects are aimed to improve the CERT rebates earned on exports of available for terms of up to three years the public sector, and that Colombian the subject merchandise to the United at TCC (DTF) plus five percentage flower growers/exporters are not eligible States and Puerto Rico and other points. Long-term peso loans are to receive FINDETER loans. Therefore, countries for research and development available for terms up to seven years at we preliminarily determine that from January 1983 (the effective date of TCC plus six percentage points plus a FINDETER financing is not the original suspension agreement) 0.25 percentage point for each countervailable for exports of the through November 1985, when the additional year after the fifth. ATPA subject merchandise to the United rebate rate for roses and other cut loans are available in pesos for up to States and Puerto Rico during the POR. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42539 (10) Fondo Financiero de Proyectos de Colombia; Final Results of FOR FURTHER INFORMATION CONTACT: Desarrollo (FONADE) Countervailing Duty Administrative Jean Kemp and Stephen Jacques, Office FONADE is an industrial and Reviews of Suspended Investigations; of Agreements Compliance, Import commercial state entity owned by the (published concurrently with this Administration, International Trade National Department of Planning. notice). Administration, U.S. Department of FONADE finances feasibility studies on Interested parties may submit written Commerce, 14th Street and Constitution pre-investment projects that are not comments on these preliminary results Ave., N.W., Washington, D.C. 20230; conditioned on exporting. The main within 30 days of the date of publication telephone: (202) 482–3793. client is the National Institute for Road of this notice and may request SUPPLEMENTARY INFORMATION: Development. We verified that no disclosure and/or a hearing within 10 Applicable Statute and Regulations Colombian flower growers/exporters of days of the date of publication. Rebuttal the subject merchandise applied for or briefs and rebuttals to written Unless otherwise indicated, all received financing from FONADE comments, limited to issues in those citations to the statute and to the during the POR. Therefore, we comments, must be filed not later than Department’s regulations are in preliminarily determine that FONADE’s 37 days after the date of publication. reference to the provisions as they financing was not used by Colombian Any hearing, if requested, will be held existed on December 31, 1994. However, flower growers/exporters of the subject 44 days after the date of publication or references to the Department’s merchandise during the POR. the first workday thereafter. The Countervailing Duties; Notice of Department will publish the final Proposed Rulemaking and Request for Program Specific to the Roses and results of its analysis of issues raised in Public Comments (54 FR 23366; May 31, Other Cut Flowers’ Suspension any such written comments or at a 1989) (Proposed Regulations), are Agreement hearing. This administrative review and provided solely for further explanation (11) Air Freight Rates (apply only to the notice are in accordance with section of the Department’s countervailing duty roses suspension agreement) 751(a)(1) of the Tariff Act (19 U.S.C. practice. Although the Department has 1675(a)(1)) and 19 CFR 355.22. withdrawn the particular rulemaking The Departmento Administrativo de Dated: August 8, 1995. proceeding pursuant to which the la Aeronautica Civil (DAAC) is the Proposed Regulations were issued, the Susan G. Esserman, government agency that develops, subject matter of these regulations is maintains and regulates air transport Assistant Secretary for Import being considered in connection with an Administration. and air space activities. Section D(3) of ongoing rulemaking proceeding which, the suspension agreement states that the [FR Doc. 95–20300 Filed 8–15–95; 8:45 am] among other things, is intended to Department may consider rescinding the BILLING CODE 3510±DS±M conform the Department’s regulations of agreement if the air freight rates paid by the Uruguay Round Agreements Act cut flower exporters approach the [C±301±003; C±301±601] (See 60 FR 80 (January 3, 1995)). government-mandated maximum rates set by the DAAC because such rates Roses and Other Cut Flowers From Background might be indicative of government Colombia; Miniature Carnations From On October 18, 1994, the Department control rather than the result of Colombia; Final Results of published in the Federal Register (59 competitive forces. Countervailing Duty Administrative FR 52,514) the preliminary results of its At verification, we examined the Reviews of Suspended Investigations administrative reviews of the companies’ air freight bills and found agreements suspending the that the rates negotiated between the AGENCY: Import Administration, countervailing duty investigations on flower producers and air freight carriers International Trade Administration, roses and minis from Colombia (See were between the minimum and Department of Commerce. Roses and Other Cut Flowers From maximum rates permitted and did not ACTION: Notice of Final Results of Colombia; Suspension of Investigation, approach the maximum. Therefore, we Countervailing Duty Administrative 48 FR 2,158 (January 18, 1983); Roses preliminarily determine that this Reviews of Suspended Investigations. and Other Cut Flowers From Colombia; program did not confer any Final Results of Countervailing Duty SUMMARY: countervailable benefits upon exports of On October 18, 1994, the Administrative Review and Revised the subject merchandise to the United Department of Commerce (‘‘the Suspension Agreement, 51 FR 44,930 States and Puerto Rico during the POR. Department’’) published the preliminary (December 15, 1986); and Miniature results of its administrative reviews of Preliminary Results of Review Carnations from Colombia; Suspension the agreements suspending the of Countervailing Duty Investigation, 52 We preliminarily determine that the countervailing duty investigations on FR 1,353 (January 13, 1987)). We have GOC and signatory companies have roses and other cut flowers (roses) from now completed these administrative complied with all the terms of the Colombia and on miniature carnations reviews in accordance with section 751 suspension agreements during the (minis) from Colombia. We gave of the Tariff Act of 1930, as amended period January 1, 1993 through interested parties an opportunity to (the Tariff Act), and 19 CFR 355.22. December 31, 1993. In addition, we comment on the preliminary results. preliminarily determine that the peso After reviewing all the comments Scope of Review and dollar benchmarks established in received, we determine that the The products covered by these the 1991 and 1992 administrative Government of Colombia (GOC) and administrative reviews constitute two reviews of these suspended producers/exporters of roses and minis ‘‘classes or kinds’’ of merchandise: roses investigations will continue to apply to have complied with the terms of the and minis from Colombia. During the loans after the date of publication of the suspension agreements during the PORs, such merchandise covered by final results of these administrative periods January 1, 1991, through these suspension agreements was reviews, and until revised by the December 31, 1991, and January 1, 1992, classifiable under Harmonized Tariff Department (See Roses and Other Cut through December 31, 1992. Schedule (HTS) item numbers Flowers and Miniature Carnations from EFFECTIVE DATE: August 16, 1995. 0603.10.60, 0603.10.70, 0603.10.80, and 42540 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 0603.90.00 for roses, and 0603.10.30 for additional producers or exporters or Terminate Suspended Investigation, 59 minis. The HTS item numbers are may terminate this Agreement and FR 10,790, and 10,793 (March 8, 1994); provided for convenience and Customs reopen the investigation under 19 CFR FTC Public Factual Submission at purposes. The written descriptions 355.18(b)(3)(c) of the Commerce Exhibits 9 and 10 (August 1, 1992); FTC remain dispositive. Regulations. Public Request for Verification (July 23, These reviews of the suspended We have found that the GOC has not 1993)). investigations involve over 450 maintained an up-to-date list of Department’s Position: We disagree Colombian flower growers/exporters of signatories for both suspension with petitioners. At verification, the roses, over 100 Colombian flower agreements. However, the GOC Department reviewed documentation growers/exporters of minis, as well as reported, and the Department verified, provided by the four companies and by the GOC. We verified the response from information for all producers/exporters the Central Bank, including applications four producers/exporters of the subject during the PORs, regardless of whether and records of official government merchandise: Floramerica, Inc. (roses they had signed the suspension approval and disapproval for CERT and minis); Jardines de los Andes S.A. agreements. At verification, we payments. The Department also (roses and minis); Agrosuba, Ltda. (roses reviewed the Colombian Custom examined export documents (DEX) and and minis) and Horticultura de la Authority’s list of all flower companies other shipping documents to determine Sabana (minis) (collectively, the four exporting minis to the United States and destinations of shipments receiving companies). The suspension agreement Puerto Rico for 1991 and 1992 (See CERT payments, and verified that no for minis covers seven programs: (1) Tax verification exhibits D–VIII and D–IX). shipments of the subject merchandise Reimbursement Certificate Program; (2) In addition, the Department reviewed received CERT payments. We also PROEXPO/BANCOLDEX (funds for the and verified at each GOC agency verified documentation at the four promotion of exports); (3) Plan Vallejo; information for all producers of the companies confirming that the GOC did (4) Free Industrial Zones; (5) Export subject merchandise, regardless of their not grant CERT payments on subject Credit Insurance; (6) Countertrade; and signatory status. At the Banco de la merchandise (See verification reports (7) Research and Development. The Republica (the Central Bank), we for each company). Thus, we have suspension agreement for roses covers checked computer records of U.S. and determined that the GOC has adequately the seven programs listed above, as well Puerto Rican country identification monitored the suspension agreements as (8) Air Freight Rates. codes showing that no CERT payments and has provided the Department of were made to any flower growers/ relevant reports in accordance with the Analysis of Comments Received exporters for shipments of the subject terms of the suspension agreements (See We gave interested parties an merchandise. At PROEXPO/ also Miniature Carnations from opportunity to comment on the BANCOLDEX, we reviewed and verified Colombia; Final Results of preliminary results. Also, at the request all loans issued and outstanding in 1991 Countervailing Duty Administrative of the GOC, we held a public hearing on (See also Government Verification Review and Determination not to January 9, 1995. We received comments Report) and we have determined that Terminate Suspended Investigation, 59 from the respondents, the GOC and the Colombian flower growers/exporters FR 10,790 (Comment 7) (March 8, Association de Flores (Asocolflores), have complied with the terms of the 1994)). and the petitioners, the Floral Trade suspension agreements during the Comment 3: The FTC asserts that Council (FTC). PORs. Similarly, we verified that no export documents offer no objective Comment 1: The FTC asserts that both countervailable benefits were granted to support for the conclusion that CERT suspension agreements allow the or received by any flower growers/ payments were made only for third- Department to terminate the suspension exporters for Plan Vallejo, Air Freight country exports. The FTC contends that agreements if producers/exporters Rates, Free Industrial Zones, and Export the GOC granted CERT payments on account for less than 85 percent of the Credit Insurance Program. Based on this certain shipments which may either total exports of the subject merchandise evidence, the Department verified more have been transhipped to the United to the United States and Puerto Rico. than 85 percent of the Colombian flower States without traveling the entire Further, the FTC claims that there is growers/exporters during the PORs. distance to Canada and Europe or have effectively no suspension agreement for Consequently, the Department will been reshipped to the United States the minis since the GOC does not have neither renegotiate the minis suspension from the Netherlands Antilles and an up-to-date list of signatories during agreement with the GOC and the Panama (See Associacion Colombiana the periods of review (PORs) (See Roses growers/exporters of the subject de Exportadores v. United States, 704 F. and Other Cut Flowers From Colombia; merchandise, nor terminate the Supp. 1114 (CIT 1989), aff’d 901 F.2d Final Results of Countervailing Duty suspension agreements, nor reopen the 1089, cert. denied 498 U.S. 848 (1990)). Administrative Review and Revised investigation. However, the Department Moreover, the FTC cites the Suspension Agreement, 51 FR 44,930, may require respondents to update the BANCOLDEX annual report for 1992 and 44,933 (December 15, 1986); and list of signatories of the suspension and asserts that the GOC admitted that Miniature Carnation from Colombia; agreements for future administrative Panama and the Netherlands Antilles Suspension of Countervailing Duty reviews. ‘‘have been traditionally identified as Investigation, 52 FR 1,353 and 1,356 Comment 2: The FTC contends that destinations for fictitious and over- (January 13, 1987)). the GOC is unable to monitor the invoiced exports’’ in order to receive Department’s Position: The ultimate shipment destination of CERT rebates, and that ‘‘it was precisely suspension agreement on minis states exports for which CERT rebates were for this reason that the CERT program that should exports to the United States granted and therefore unable to monitor was abolished for these countries in by the producers and exporters account compliance with the suspension early 1992.’’ The FTC asserts that the for less than 85 percent of the subject agreements with regard to the CERT sheer volume shipped to Panama and merchandise imported directly or program (See Miniature Carnations from the Netherlands Antilles indicates that indirectly into the United States from Colombia; Final Results of it was a substantial conduit for Colombia, the Department may attempt Countervailing Duty Administrative transhipment (See Fresh Cut Roses from to negotiate an agreement with Review and Determination not to Colombia and Ecuador, Inv. Nos. 731– Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42541 TA–684–85, USITC Pub. 2766, at C–7 Carnations from Colombia; Final The GOC argues that all Colombian (March 1994)). Consequently, the FTC Results of Countervailing Duty flower producers/exporters of minis and alleges that this is a prima facie breach Administrative Review and roses have fully complied with the of the suspension agreements, which are Determination not to Terminate terms of their respective suspension no longer in the public interest, and that Suspended Investigation, 59 FR 10,790 agreements. Furthermore, the GOC the Department is required pursuant to (Comment 7) (March 8, 1994)). The asserts that the FTC incorrectly applies 19 U.S.C. 1671c(i) to resume the Department verified that Colombian the minis benchmark interest rates to investigation and/or issue exporters only received CERT payments loans for exports of roses. The GOC countervailing duty orders. based on exports to countries other than explains that the current benchmarks for The GOC argues that the value of total the United States during the PORs. The roses and minis differ, not because there exports of all Colombian products to Department has determined that CERT is a defect in the suspension agreements Panama (or even the Netherlands payments benefit only those shipments or because of the Department’s Antilles) does not indicate that a single to which they are tied, and not to approach, but instead because the FTC flower was transshipped through the shipments of subject merchandise to the had requested a review of only the Netherlands Antilles. Contrary to FTC’s United States. minis suspension agreement in 1989. assertions, the GOC explains that Comment 5: The FTC asserts that the Regardless, the GOC claims that loans bananas and flowers are not the largest GOC did not comply with the issued to roses growers/exporters met of Colombia’s non-traditional exports; suspension agreements with regard to the benchmarks established under the however, they are the largest Colombian peso (peso) loans for the minis suspension agreement. agricultural exports. following reasons: Department’s Position: The Department’s Position: The First, the FTC claims that were the Department disagrees with the FTC. The suspension agreements obligate Department to compare the interest rates Department has determined in previous Colombian growers/exporters to on 1991 and 1992 PROEXPO/ reviews that any changes to benchmark renounce CERT payments on exports of BANCOLDEX (BANCOLDEX) loans to interest rates for the suspension the subject merchandise to the United the weighted-average commercial agreements should be set prospectively, States and Puerto Rico. Additionally, in lending published by the International since suspension agreements are January 1987, the GOC set the level of Monetary Fund (IMF) or the FFA/ forward looking (Miniature Carnations CERT payments at zero percent for FINAGRO (FINAGRO) rates during the From Colombia; Final Results of exports of the subject merchandise. At PORs, the Department would find that Countervailing Duty Administrative verification, the Department fully Colombian flower growers/exporters Review and Determination Not To verified the non-receipt of CERT received loans at preferential interest Terminate Suspended Investigation, 59 payments on exports of the subject rates. FR 10,790, and 10,795 (March 8, 1994)). merchandise by reviewing the Central Second, the FTC asserts that the Because the Department’s benchmarks Bank’s CERT printouts by destination. Department should not equate are prospective and are based on an At the four companies, we examined compliance with pre-established appropriate alternative source of several third-country sales, including benchmark interest rates with financing, loans at or above the sales to Panama and the Netherlands compliance with the terms of the benchmark did not confer any Antilles, by reviewing the export suspension agreement covering minis, countervailable benefits. Furthermore, documents (DEXs), the receipt of because under the minis suspension the Department verified that the payments, and airway bills. In addition, agreement the Colombian flower Colombian flower growers/exporters of we examined the ultimate destination of growers/exporters have two distinct the subject merchandise have fulfilled specific sales of the subject obligations: (1) not not apply for or the two distinct obligations in the merchandise. Based on the findings of receive financing at preferential terms; suspension agreements: (1) not to apply verification, we found no evidence to and (2) not to apply for or receive for or receive financing at preferential support an allegation of transshipment financing other than that offered at or terms; and (2) not to apply for or receive or reshipment of the subject above the most recent benchmark financing other than that offered at or merchandise. As a result, we have interest rates determined by the above the most recent benchmark determined that with respect to this Department. interest rates determined by the issue the GOC and the flower growers/ Finally, the FTC argues that if the Department. exporters were in compliance with the Department’s 1989 benchmark for minis At verification, the Department suspension agreements during the were to be applied to 1991 and 1992 reviewed all loans issued by PORs. loans received for roses, the Department BANCOLDEX during the PORs, in Comment 4: The FTC argues that would likely find Colombian producers/ particular the four companies we visited since CERT rebates are not necessarily exporters receiving BANCOLDEX loans at verification, and found that the loans tied to third-country exports, the at preferential rates during the PORs. granted were on terms consistent with Department should reconsider its The 1989 minis benchmarks set by the the suspension agreements. position that ‘‘rebates tied to exports to Department were tied to the ‘‘Depositors Additionally, because BANCOLDEX third countries do not benefit the a Termino Fijo’’ (DTF) interest rate, loans were pegged to the floating DTF production of export of the subject which is based on Colombian financial rate, and the DTF rate fluctuated widely merchandise.’’ institution’s 90-day deposit rates, and over the review periods, we did not Department’s Position: It is the was set at DTF plus one percentage compare the rate on an individual loan Department’s policy that rebates tied to point. The FTC asserts that the annual with the annual average DTF rate. exports to third countries do not benefit average DTF rate compared to a sample Therefore, Colombian flower growers/ the production or export of the subject of individual loan rates for roses exporters did not apply for or receive merchandise destined for the United exporters shows these exporters financing at preferential terms, and the States. We found no evidence in the received preferential loans. Department determines that the GOC questionnaire responses or at Consequently, the FTC asserts that the did not confer any countervailable verification that would cause us to suspension agreements should either be benefits during the PORs, and that reconsider our position (See Miniature revised or found unworkable. signatories complied with the terms of 42542 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices the suspension agreements for the first year) are not the actual FINAGRO benchmark will not be considered BANCOLDEX programs during the rates. Instead, the appropriate preferential (See Comments 5 and 9). PORs. benchmark interest rates set by the The Department determines not to Finally, the Department agrees with Departments should be in accordance adopt the two-tier interest rate system the respondents that because the with FINAGRO’s specified interest rates (borrowers can receive different interest suspension agreements are two separate of January 24, 1992, i.e., DTF plus 2 rates depending on the size of the agreements, it is erroneous to apply the percentage points for small producers company) because BANCOLDEX loans 1989 minis benchmark interest rates to and DTF plus up to 6 for large are not issued on the basis on the size the roses suspension agreement. producers, with no provisions for an of flower growers. Comment 6: The FTC asserts that the additional one quarter percentage point The Department determines that the Department should reconsider its use of for long-term loans. The GOC asserts short- and long-term benchmarks for the subsidized FINAGRO interest rate, that the actual interest rate paid by the peso denominated financing will be when establishing new short- and long- borrower is determined by arm’s-length effective 14 days after the date of term benchmarks. The FTC argues negotiations between the borrower and publication of the final results of these instead that the Department use the financial intermediary and that the administrative reviews. weighted-average interest rates of FINAGRO’s specified interest rates serve Comment 7: The FTC requests that the available non-government-related as a cap for any loans issued by the Department weight-average Caja Agraria financing at commercial lending rates intermediary bank. interest rates with FINAGRO rates as maintained by the Central Bank during Department’s Position: While the done in previous reviews. In the case the PORs. In addition, the FTC asserts Department verified that there is no that there is conflicting data, the FTC that the Department is not required to single, predominant source of suggests rejecting such data and using look to interest rates available to the alternative financing in Colombia, we best information available. agricultural sector, when the rates are have determined that FINAGRO, a major In response, the GOC claims that the not available to flower growers/ intermediary lender to the agricultural reported Caja Agraria interest rates are exporters (See Rice From Thailand; sector, is an appropriate alternative lower than reported FINAGRO rates Preliminary Results of Countervailing source of financing for the Department’s (Submission of June 3, 1994) and further Duty Administrative Review, 57 FR benchmarks. Because there is argues that the submitted information 8,437 and 8,439 (March 10, 1992)). insufficient information on the record does not conflict with rates provided in The FTC asserts that if the about nongovernment-related financing the questionnaire response, which were Department decides to base its peso loan at commercial rates, we have reported as applicable rates for different benchmarks on FINAGRO interest rates, determined that it is inappropriate to denomination loans. then it should use the maximum interest weight average the commercial interest Department’s Position: The rates for large producers, i.e., DTF plus rates. Department disagrees with petitioners. 6 percentage points. In addition, the The most recent FINAGRO short-term FINAGRO is the major alternative FTC argues that the Department should rate is equal to the Colombian fixed source of agricultural financing in adjust the interest rates to reflect the deposit rate, DTF, plus up to 6 Colombia that provides rediscount rates spread between short- and long-term percentage points. We agree with to intermediary banks in Colombia. We BANCOLDEX loans. The FTC argues petitioners that by establishing a range have determined that because that the Department should not of interest rate benchmarks (i.e., DTF information submitted by respondents establish a two-tier benchmark system, plus up to 6 percentage points), as about Caja Agraria rates conflicts with or a range of interest rate benchmarks, suggested by respondents, there is in what we found at verification and because there would be no criteria by effect no benchmark because this would because Caja Agraria’s interest rates are which the Department could determine be equivalent to setting the benchmark similar to the rates offered by FINAGRO, what is preferential (minimum rate) at DTF—a rate that does FINAGRO interest rates represent the The GOC assets that the FTC offers no not reflect commercial rates or an best alternative source of financing for basis upon which the Department could alternative rate of financing. Therefore, agricultural entities in Colombia. support a change from a FINAGRO the Department determines that the Comment 8: The FTC asserts that the based benchmark to weighted-average most recent verified average interest rate Department should use effective rather interest rates on available non- on all loans (administrative review than nominal interest rates. The FTC government-related financing at 1993) financed by FINAGRO through contends that effective rates are a more commercial lending rates. The GOC Caja Agraria, i.e., nominal DTF plus accurate measure of a subsidy and argues that FINAGRO lending rates are 3.66 percentage points, is the reflect a considerably higher rate. The appropriate because the rates are not appropriate benchmark for short-term FTC asserts that nominal rates vary enterprise or industry specific, which financing. These interest rates were widely, since commissions and other otherwise would make them a verified in the concurrent 1993 surcharges can add to the cost of a loan. counteravailable subsidy (See Final administrative review (See Government In addition, the FTC asserts, the GOC Affirmative Countervailing Duty Verification Report 1993–Administrative has not established that the financial Determination: Miniature Carnations Review of Countervailing Duty intermediary does not assess surcharges from Columbia, 52 FR 32,033, and Suspension Agreements on Roses and for its services or use of its own funds 32,037 (August 25, 1987); and Roses and Other Cut Flowers and Miniature in financing loans. Other Cut Flowers From Colombia; Final Carnations from Colombia (July 21, In response, the GOC argues that the Results of Countervailing Duty 1995)). Since BANCOLDEX also nominal and effective interest rates are Administrative Review and Revised administered long-term loans, we equivalent, because the nominal rate is Suspension Agreement, 51 FR 44,930, determine that the same nominal DTF the rate expressed as if interest were due and 44,932 (December 15, 1986)). plus 3.66 percentage points, plus an at the beginning of each quarter, while The GOC asserts that the additional 0.25 percentage point for the effective rate is the equivalent rate Department’s benchmarks for peso loans each year after the first is the calculated on the basis of interest being (DTF plus 6 percentage points, plus 0.25 appropriate benchmark. Furthermore, payable at the end of the quarter. percentage point for each year after the loans provided at or above the Furthermore, the GOC argues that there Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42543 are no surcharges by financial such as the World Bank or the Inter- lending institution and the Government intermediaries on BANCOLDEX loans American Development Bank (IADB), of Argentina had no control over the for the portion of the loan provided by are not countervailable subsidies (See administration of the loans. In similar the financial intermediary. Final Affirmative Countervailing Duty cases, the Department has found a Department’s Position: We agree with Determination: Fuel Ethanol from subsidy where a portion of the loans respondents. The Department Brazil, 51 FR 3361, 3375 (January 27, was provided by the government of the determines that the nominal and 1986); Final Results of Countervailing recipient country involved (Ethanol, 51 effective interest rates are equivalent, as Duty Administrative Review; Oil FR at 3375). In all cases, it is the stated by respondents. In addition, the Country Tubular Goods from Argentina Department’s policy, where the funding Department verified that there are no (OCTG), 56 FR 64493 (December 10, is international in nature, to examine surcharges by financial intermediaries 1991); and North Star Steel of Ohio v. the administration of the funding, i.e., on BANCOLDEX loans for the portion of United States, 824 F. Supp. 1074, and the origin and nature of the loan terms, the loan provided by the financial 1079 (CIT 1993)). Nevertheless, as to determine what party or parties intermediary. Therefore, we will demonstrated below, whether the CAF, control the funds. In the OCTG case continue using nominal interest rates. FLAR, and BLADEX are international cited above, the international lending Comment 9: The FTC contends that development or lending institutions is institution set the interest rates on its the Department must determine whether irrelevant for this review. loans while the Argentina government Colombian flower growers/exporters When determining the provided only guarantees and had no have received U.S. dollar (dollar) loans countervailability of funding supplied control over the interest rate set by the at preferential interest rates. To the by international institutions, the lending institution (See OCTG, 56 FR extent that the suspension agreements Department’s analysis considers not 64496). restrict the Department’s ability to only the source of the funding for a The BANCOLDEX loan programs are administer the law, the FTC asserts that particular program, but how those funds an updated version of the PROEXPO the agreements must be terminated or are administered. The Department loan programs with the addition of the amended for the PORs. analyzes whether the international dollar loan program. The GOC The FTC asserts that the Department institution or the government in the resolutions governing the BANCOLDEX should determine the countervailability recipient country controls the programs are identical to the PROEXPO of dollar loans administered by administration, the terms, conditions, resolutions. Most importantly, BANCOLDEX during the PORs because and interest rate of the loan program. BANCOLDEX loans, including the terms none of the international lending and OCTG, 56 FR at 64496. In this context, and benefits applicable to those loans, development institution funding (i.e., the Department is careful to are within the GOC’s control. The the Corporation Andina de Fomento ‘‘distinguish the countervailable benefit interest rates, terms, and conditions of (CAF), Banco Latinoamericano de accruing from the government’s action the BANCOLDEX dollar loans are set or Exportaciones (BLADEX) and Fondo from the benefits to the borrower controlled by the GOC through the Latinoamericano de Reservas (FLAR)) extended by the international lending governing resolutions, i.e., Resolutions satisfy the three criteria established by institution.’’ North Star Steel, 824 F. 13/91 and 4/92. Therefore, despite the the North Star Steel Ohio v. United Supp. at 1079. source of the funding for the dollar States, 824 F. Supp. 1074 (CIT 1993); According to Article 21 of the 7th Law loans, the Department determines that First, the GOC partially funded FLAR (January 11, 1991), the Colombian the dollar loans administered by and CAF and FLAR is located in Congress in its General Rules for BANCOLDEX are potentially Colombia, that is a ‘‘country under the Foreign Trade called for the creation of countervailable and the Department has agreement.’’ Second, the FTC asserts the Banco de Comercio Exterior de calculated dollar benchmarks that ‘‘the terms and benefits’’ of FLAR, Colombia S.A. (BANCOLDEX) as a accordingly (See Comment 10 below). CAF and BLADEX are ‘‘within the financial institution linked to the Comment 10: the FTC asserts that, by purview of the GOC’’ since Ministry of Foreign Trade. This law using the annual weighted-average BANCOLDEX controls the enabled the GOC to replace PROEXPO effective U.S. prime lending rates administration of these programs and with BANCOLDEX and to regulate reported in the Federal Reserve rather the distribution of funds. Third, the FTC BANCOLDEX’s legal and operational than one quarter of 1994 as done in the contends that the U.S. Government did aspects. In November 1991, the GOC preliminary determination, the not fund either CAF or BLADEX. passed decree 2505 officially Department would find that the dollar The GOC asserts that since the source establishing BANCOLDEX and defining denominated BANCOLDEX loans issued of funds for the dollar loans was not the its legal nature, function, rights, and during the PORs were preferential (the GOC but international lending and obligations. The business purpose of weighted-average U.S. lending rate for development institutions, there is no BANCOLDEX consists mainly, but not 1992 was 8.72 percent, compared to the legal basis for the Department to declare exclusively, of the promotion of dollar denominated loans issued to the them countervailable, regardless of the activities related to exports. To this end, five leading exporters of roses and minis interest rate (See Proposed CVD BANCOLDEX acts as a discount or in 1992; See Public questionnaire Regulations, 54 FR 23,366, 23,374, and rediscount bank, rather than as a direct response). Consequently, the FTC 23,382 (May 31, 1989) Section intermediary. Despite the change in requests that the Department either 355.44(o). name from PROEXPO to BANCOLDEX, terminate the suspension agreements or Department’s Position: We disagree the same GOC resolutions which remove their reference to benchmarks with respondents. Respondents suggest governed export loans granted by and determine compliance with the that the BANCOLDEX loans funded by PROEXPO govern those granted by suspension agreements based on current the dollars secured from CAF, FLAR, BANCOLDEX. rates for 1991 and 1992. and BLADEX are non-countervailable In the North Star Steel case cited However, the FTC argues that should because these are international above, the Court affirmed the the Department decide to establish development or lending institutions. It Department’s determination that IADB prospective benchmarks, the is long-standing Department policy that loans were not countervailable because Department should include dollar loans from international institutions, the financing was from an international benchmarks for BANCOLDEX loans for 42544 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices the following reasons: the Department dollar loans nonetheless did have to be Comment 12: The FTC claims that cannot know whether dollar loans will refinanced or repaid, the GOC contends under the terms of the suspension continue to be funded by international that the Department must allow time for agreements the Department is forced to financial institutions or whether this process to occur (See Comment 9). apply outdated/subsidized benchmark BANCOLDEX will convert non-funded, Department’s Position: The interest rates to determine peso-based loans to dollar-based loans. Department agrees with respondents ‘‘compliance’’ with the suspension Furthermore, the FTC argues that it is that the calculation of the dollar loan agreements. The FTC objects to the unclear whether international lending benchmark in the Department’s Department’s practice in setting institutions will continue to supply the preliminary determination was incorrect prospective and outdated benchmark funding to BANCOLDEX for these loans. because it was not necessarily interest rates to determine compliance When setting dollar benchmarks, the representative of dollar-based interest with the terms of the suspension FTC argues that instead of the GOC’s rates in Colombia. The Department has, agreements and argues that the proposed benchmark based on the therefore, modified its calculation of the Department should either terminate the average rate for fixed and floating loans dollar loan benchmark in the following suspension agreements with respect to under $1 million, the Department manner, which is consistent with the the BANCOLDEX program, or, at least, should compare interest rates on Department’s prior practice (See Final amend the agreements by prohibiting BANCOLDEX loans to the U.S. Prime Affirmative Countervailing Duty Colombia growers from receiving loans rate for comparable commercial Determination: Certain Steel Products at non-preferential rates. The FTC financing as published by the Fedeal from Mexico; 58 FR 37358 (July 9, asserts that the Department should Reserve (See Certain Steel Products 1993)) (See Calculation Memo (July 21, refrain from establishing fixed from Mexico, 58 FR 37,358 (Dep’t 1995)). benchmark interest rates, and instead Comm. 1993)). Or at minimum, the FTC The Department determines that the Department should determine a argues that the Department should LIBOR will be the basis of the benchmark for each review period by establish multiple benchmarks benchmark for dollar loans, because adhering to the precedents set in the reflecting different size loans at fixed or LIBOR is used as the basis for dollar Final Affirmative Countervailing Duty floating rates. loan interest rates in Colombia. Determination and Countervailing Duty The GOC disagrees with the proposed Therefore, the Department’s benchmark Order, Steel Wire Rope from Thailand, benchmark and contends that the for dollar-based loans in Colombia will 56 FR 46299 (September 11, 1991); and Department should adopt the following: be the six-month LIBOR rate in effect at Final Results of the Administrative first, the Department should use the the time of the loan plus 1.52 percentage Review for Rice from Thailand, 59 FR average lending rate for loans under $1 points. The Department determines that 8,906, and 8,907 (1994). million, because some BANCOLDEX The FTC claims that the suspension the short- and long-term benchmarks for loans at issue are not limited to amounts agreements are not in the public interest dollar denominated financing will be under $100,000. Second, because some because Colombian flower growers/ effective 14 days after the date of of the BANCOLDEX dollar loans are exporters can ‘‘technically’’ comply publication of the final results of these floating rates, the GOC claims that the with the terms of the suspension administrative reviews (See Comment Department should average the Federal agreements while at the same time 11 below). Reserve’s short-term floating and fixed receive loans at preferential interest rate for loans under $1 million. Third, It should be noted that the rate rates. Because the benchmarks are the GOC asserts that the Department specified here was calculated based on outdated, the FTC asserts, they are should use the most recent published effective, not nominal, interest rates; the incapable of eliminating the net subsidy terms of Federal Reserve lending effective rate is the equivalent to the on flowers. Thus, the FTC contends that statistics. Fourth, the GOC contends that nominal rate calculated on the basis of if Colombian flower growers continue to the Department should convert its interest being payable at the end of the receive loans at preferential interest Prime-base benchmark to a London quarter. BANCOLDEX will now be rates, the Department should either Interbank Offered Rate (LIBOR) based required to set the nominal interest rates impose countervailing duties or fashion benchmark, by taking the appropriate for dollar-based loans at a level that is a suspension agreement that eliminates Prime-based benchmark rate spread, and high enough to ensure that the effective the subsidy, offsets the subsidy adding the average spread between interest rates of these loans are at or completely, or ceases the exports. Prime and LIBOR. If not converted to above the Department’s new benchmark. In addition, the FTC asserts that the LIBOR, it will create severe Comment 11: The GOC asserts that if Department cannot predict future administrative problems for any dollar loan needs to be refinanced interest rates, especially since interest BANCOLDEX to be working or repaid, the Department should grant rates fluctuated widely between 19 and simultaneously with two different base 90 days after the publication of the final 32 percent during the POR, or predict rates. Finally, because the rates results for the process of refinancing to what Colombian flower growers/ published in the Federal Reserve occur. This is the same period initially exporters could receive in non-peso Bulletin are compound interest rates, established in the minis suspension based interest rates years after the GOC asserts that the Department agreement (52 FR 1355, para. II.B., establishing benchmarks which may not should permit the GOC to freely set the 1986). be applicable to unforeseen loan nominal interest rate at whatever level Department’s Position: We agree with programs. is necessary to ensure that the effective respondents. The Department, therefore, The GOC contends that there are interest rate equals or exceeds the determines that the effective date for several reasons why loans are non- proposed benchmark. completing the repayment and/or preferential: First the Department Consequently, because the actual rate refinancing of any outstanding dollar establishes its benchmark interest rates on short-term BANCOLDEX loans and peso loans to meet the new short as a spread above a base rate—this ties exceeded the GOC’s proposed and long-term dollar and peso the benchmark interest rate to a market benchmark rate, there is no basis for benchmarks is 90 days after publication indicator like the DTF, Prime rate, and/ requiring producers/exporters to of these final results in the Federal or LIBOR—and no longer as a fixed renegotiate any outstanding loans. If any Register. interest rate benchmark. Second, GOC Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42545 keeps BANCOLDEX interest rates in line Investigation: Miniature Carnations Department’s Position: The with overall interest rate levels from Colombia 52 FR 1353 and 1355 Department has determined not to regardless of the Department’s (January 13, 1987)). initiate an amendment to the benchmarks. Finally, prospective Comment 13: The FTC asserts that suspension agreements, based on the benchmarks could be to the advantage, according to 19 CFR 355.19(b), the information received. The Secretary has i.e., too low, but just as well to the Department can revise the suspension no reason to believe at this time that the disadvantage, i.e., too high, for the agreements if it ‘‘has reason to believe exporters of the subject merchandise Colombia flower growers/exporters. that the signatory government or have violated the suspension Department’s Position: The exporters have violated an agreement or agreements or that the agreements no Department disagrees with petitioners. that an agreement no longer meets the longer meet the requirements of section The Department determines that requirements of section 704(d)(1) of the 704(d)(1). Consequently, the Department suspension agreements are forward Act.’’ The FTC claims that respondents will not currently renegotiate the looking, and that the Department sets have violated the terms of the suspension agreements with the GOC benchmark interest rates prospectively suspension agreements during the PORs and the producers/exporters of the (See Miniature Carnations from (See Comments 5 and 9). subject merchandises and will not Colombia: Final Results of The GOC argues that all Colombian terminate the suspension agreements Countervailing Duty Administrative flower producers/exporters of minis and and reopen the investigation. Review; 56 FR 14240 (April 8, 1991) and roses have fully complied with the Final Results of Reviews Miniature Carnations from Colombia; terms of their respective suspension Final Results of Countervailing Duty agreements and that it supports the Administrative Review and After considering all of the comments Department’s past policy of having received, we determine that the GOC Determination Not To Terminate suspension agreements be forward Suspended Investigation; 59 FR 10790, and the Colombian flower growers/ looking, and that the Department sets exporters of the subject merchandise (March 8, 1994.)). benchmarks interest rates prospectively. At verification, the Department have complied with the terms of the The GOC asserts that there is no need examined documentation that indicated suspension agreements for the periods to amend or clarify the suspension that BANCOLDEX charged interest rates January 1, 1991, through December 31, agreements and it was inappropriate for on its short- and long-term loans above 1991, and January 1, 1992, through the Department to have requested the Department’s established benchmark December 31, 1992. In addition, we comments from interested parties for the rates in effect during the POR. The determine that the peso and U.S. dollar Department also found that the following reasons: first, the suspension benchmarks established in this final companies received BANCOLDEX loans agreements cannot be unilaterally notice will be effective 14 days after the on terms consistent with the suspension amended or clarified by the Department date of publication of this notice. agreements. Consequently, we have or the Colombian flower growers/ Moreover, the Department determines determined that signatories were in exporters. Second, the Department has that the effective date for completing the compliance with the terms of the no power to amend or clarify the repayment and/or refinancing for any suspension agreements for the agreements without the consent of all outstanding peso and U.S. dollar loans BANCOLDEX programs. Since signatories. Third, the Department to meet the new short- and long-term BANCOLDEX loans were above the should first raise the issue with the benchmarks in 90 days after publication benchmark rates, the Department signatories and negotiate an of these final results in the Federal determines that the GOC did not confer amendment, which then can be subject Register. to public comments (See 19 CFR any countervailable benefits through the These administrative reviews and 355.18(g)). BANCOLDEX programs during the POR. notice are in accordance with sections The GOC contends that there is no The Department finds that signatories 751(a)(1)(C) of the Tariff Act (19 U.S.C. basis for considering to amend the complied with the suspension 1675(a)(1)(C)) and 19 CFR 355.22 and suspension agreements Because dollar agreements’ benchmarks and avoided 355.25. countervailable benefits during the POR, loans were provided by international resulting in a situation analogous to financial institutions, the GOC asserts Dated: August 8, 1995. non-use for the BANCOLDEX programs that the loans are non-countervailable Susan G. Esserman, by Colombian flower growers/exporters and there is no need for the Department Assistant Secretary for Important of the subject merchandise. Therefore, to determine whether these loans were Administration. there is no basis for petitioners claim granted on non-preferential terms. [FR Doc. 95–20299 Filed 8–15–95; 8:45 am] that suspension agreements are not in The GOC argues that based on FTC’s BILLING CODE 3510±DS±M the public interest. proposed amendments of the To ensure timely updates of the suspension agreements (See Comment benchmarks for BANCOLDEX financing, 12), no Colombian flower grower/ National Oceanic and Atmospheric however, the Department may request exporter would sign such an agreement Administration information on FINAGRO, commercial where signatories would agree to a dollar loans and other alternative blanket commitment to that all Monterey Bay National Marine sources of financing in Colombia PROEXPO/BANCOLDEX loans have to Sanctuary Advisory Council; Open outside of the annual administrative be ‘‘non-preferential’’ without any Meeting review process (See Section III. understanding as to how the Monitoring of the Agreement in Roses Department would interpret that term. AGENCY: Sanctuaries and Reserves and Other Cut Flowers from Colombia: Further, the GOC argues that suspension Division (SRD), Office of Ocean and Final Results of Countervailing Duty agreements are supposed to provide Coastal Resource Management (OCRM), Administrative Review and Revised certainty so that when BANCOLDEX National Ocean Service (NOS), National Suspension Agreement 51 FR 44930 and loans are issued the GOC knows what Oceanic and Atmospheric 44933 (December 15, 1986) and rate must be charged to comply with the Administration (NOAA), Department of Suspension of Countervailing Duty suspension agreements. Commerce. 42546 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices ACTION: Monterey Bay National Marine Director, Northeast Region, NMFS, encompass the continental shelf edge Sanctuary Advisory Council Open One Blackburn Drive, Gloucester, MA (300–600 ft (91–213 m) depth contours). Meeting. 01930–2298 (508/281–9250); and The results of the aerial survey will Director, Southeast Region, NMFS, provide an adequate biological SUMMARY: The Advisory Council was 9721 Executive Center Drive, N., St. assessment of the two proposed survey established in December 1933 to advise Petersburg, FL 33702–2432 (813/893– areas with respect to habitat utilization NOAA’s Sanctuaries and Reserves 3141). by marine mammals and marine turtles Division regarding the management of SUPPLEMENTARY INFORMATION: On April and aid in selecting a candidate site for the Monterey Bay National Marine shock testing the SEAWOLF submarine. Sanctuary. The Advisory Council was 5, 1995, notice was published in the Federal Register (60 FR 17315) that a Issuance of this permit, as required by convened under the National Marine the ESA, was based on a finding that Sanctuaries Act. request for a scientific research permit to take cetaceans and sea turtles had such permit: (1) Was applied for in good TIME AND PLACE: Friday, August 25, been submitted by the above-named faith; (2) will not operate to the 1995, from 8:30 until 4:30. The meeting organization. The requested permit has disadvantage of the species which are will be held at the Holiday Inn, 611 been issued under the authority of the the subject of this permit; and (3) is Ocean Street, Santa Cruz, California. Marine Mammal Protection Act of 1972, consistent with the purposes and AGENDA: General issues related to the as amended (16 U.S.C. 1361 et seq.), the policies set forth in section 2 of the Monterey Bay National Marine Regulations Governing the Taking and ESA. Sanctuary are expected to be discussed, Importing of Marine Mammals (50 CFR Dated: August 2, 1995. including an update from the Sanctuary part 216), the Endangered Species Act of Ann D. Terbush, Manager, reports from the working 1973 (ESA), as amended (16 U.S.C. 1531 groups, an update on the Sanctuary Chief, Permits & Documentation Division, et seq.) and the Regulations Governing National Marine Fisheries Service. license plate marketing program, and a the Taking, Importing, and Exporting of discussion about improving public [FR Doc. 95–20203 Filed 8–15–95; 8:45 am] Endangered Fish and Wildlife (50 CFR BILLING CODE 3510±22±F relation efforts for the Sanctuary. part 222). PUBLIC PARTICIPATION: The meeting will The permit authorized the holder to be open to the public. Seats will be take by close approach (within 650 ft [I.D. 080795C] available on a first-come, first-served (198 m)) of a fixed-wing aircraft at a basis. speed of 80–140 mph (128–220 km/h) Marine Mammals FOR FURTHER INFORMATION CONTACT: an unspecified number of Atlantic AGENCY: National Marine Fisheries Jane Delay at (408) 647–4246 or bottlenose dolphins, (Tursiops Service (NMFS), National Oceanic and Elizabeth Moore at (301) 713–3141. truncatus), common dolphins Atmospheric Administration (NOAA), (Federal Domestic Assistance Catalog (Delphinus delphis), striped dolphin Commerce. Number 11.429 Marine Sanctuary Program) (Stenella coeruleoalba), Atlantic spotted ACTION: Issuance of modification to David L. Evans, dolphins (Stenella frontalis), harbor permit no. 778 (P772#59). Acting Deputy Assistant Administrator for porpoise (phocoena), Risso’s dolphins Ocean Services and Coastal Zone (Grampus griseus), Atlantic white-sided SUMMARY: Notice is hereby given that on Management. dolphins (Lagenorhynchus acutus), August 3, 1995, Permit No. 778, issued [FR Doc. 95–20312 Filed 8–15–95; 8:45 am] rough-toothed dolphins (Steno to the NMFS, Southwest Fisheries Science Center, La Jolla, CA 92038, was BILLING CODE 3510±08±M bredanensis), long-finned pilot whales (Globicephala melaena), short-finned modified. pilot whales (Globicephala ADDRESSES: The modification and [I.D. 080795B] macrorhynchus), pygmy sperm whales related documents are available for (Kogia breviceps), dwarf sperm whales review upon written request or by Marine Mammals (Kogia simus), Cuvier’s beaked whales appointment in the following office(s): AGENCY: National Marine Fisheries (Ziphius cavirostris), dense beaked Permits Division, Office of Protected Service (NMFS), National Oceanic and whales (Mesoplodon densirostris), Resources, National Marine Fisheries Atmospheric Administration (NOAA), Antillean beaked whales (Mesoplodon Service, 1315 East-West Highway, Suite Commerce. europaeus), true’s beaked whales 13130 Silver Spring, MD 20910 (301/ ACTION: Issuance of scientific research (Mesoplodon mirus), white whales 713–2289); permit no. 966 (P586). (Delphinapterus leucas), sperm whales Director, Southwest Region, National (Physeter macrocephalus), fin whales Marine Fisheries Service, 501 West SUMMARY: Notice is hereby given that (Balaenoptera physalus), minke whales Ocean Boulevard, Suite 4200, Long Continental Shelf Associates (Principal (Balaenoptera acutorostrata), blue Beach, CA 90802–4213 (310/980–4001); Investigator: Stephen Viada), 759 whales (Balaenoptera musculus), sei and Parkway Street, Jupiter, FL 33477–9596 whales (Balaenoptera borealis), Coordinator, Pacific Area Office, has been issued a permit to take the humpback whales (Megaptera Southwest Region, National Marine marine mammals and sea turtles listed novaeangliae), Northern right whales Fisheries Service, 2570 Dole Street, below for purposes of scientific (Eubalaena glacialis), killer whales Room 106, Honolulu, HI 96822–2396 research. (Orcinus orca), Bryde’s whales (808/973–2987). ADDRESSES: The permit and related (Balaenoptera edeni), and pygmy killer SUPPLEMENTARY INFORMATION: The documents are available for review whales (Feresa attenuata), 180 subject modification has been issued upon written request or by appointment, leatherback sea turtles (Dermochelys under the authority of the Marine in the following office(s): coriacea) and 270 loggerhead sea turtles Mammal Protection Act of 1972, as Permits Division, Office of Protected (Caretta caretta) to document presence, amended (16 U.S.C. 1361 et seq.), the Resources, NMFS, 1315 East-West density, and distribution. Surveys will provisions of §§ 216.33(d) and (e) of the Highway, Room 13130, Silver Spring, be conducted through October 1996 in Regulations Governing the Taking and MD 20910 (301/713–2289); Norfolk, VA, and Mayport, FL, and will Importing of Marine Mammals (50 CFR Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42547 part 216), the Endangered Species Act of importing, and exporting of endangered see 59 FR 3847, published on January 1973, as amended (16 U.S.C. 1531 et fish and wildlife (50 CFR part 222). 27, 1994; and 59 FR 65760, published seq.), and the provisions of § 222.25 of The permittee is authorized to include on December 21, 1994. up to 25 adult monk seals among those the regulations governing the taking, The letter to the Commissioner of seals authorized to be tagged under the importing, and exporting of endangered Customs and the actions taken pursuant fish and wildlife (50 CFR part 222). permit, as well as to instrument with to it are not designed to implement all The permittee is authorized to portable camcorders up to 12 of the 25 of the provisions of the bilateral increase the number of seals authorized monk seals previously authorized to be to be retagged under the permit from instrumented. This modification agreement, but are designed to assist 100 to 250. This modification involves involves no increase in the originally only in the implementation of certain of no increase in the originally authorized authorized take of 1500 monk seals. its provisions. take of 1200 monk seals. Dated: August 3, 1995. Rita D. Hayes, Dated: August 3, 1995. Gary M. Barone, Chairman, Committee for the Implementation of Textile Agreements. Gary M. Barone, Acting Chief, Permits & Documentation Acting Chief, Permits & Documentation Division, Office of Protected Resources, Committee for the Implementation of Textile Division, Office of Protected Resources, National Marine Fisheries Service. Agreements National Marine Fisheries Service. [FR Doc. 95–20204 Filed 8–15–95; 8:45 am] August 11, 1995. [FR Doc. 95–20205 Filed 8–15–95; 8:45 am] BILLING CODE 3510±22±F Commissioner of Customs, BILLING CODE 3510±22±F Department of the Treasury, Washington, DC 20229. COMMITTEE FOR THE Dear Commissioner: This directive [I.D. 080795D] IMPLEMENTATION OF TEXTILE amends, but does not cancel, the directive AGREEMENTS issued to you on January 24, 1994, by the Marine Mammals Chairman, Committee for the Implementation Adjustment of an Import Limit and of Textile Agreements. That directive AGENCY: National Marine Fisheries Charges for Certain Cotton Textile Service (NMFS), National Oceanic concerns imports of certain cotton, wool, Products Produced or Manufactured in man-made fiber, silk blend and other Atmospheric Administration (NOAA), the People's Republic of China Commerce. vegetable fiber textile products, produced or manufactured in the People’s Republic of ACTION: Issuance of modification to August 11, 1995. China and exported during the twelve-month permit no. 898 (P772#65). AGENCY: Committee for the Implementation of Textile Agreements period which began on January 1, 1994 and SUMMARY: Notice is hereby given that on (CITA). extends through December 31, 1994. August 3, 1995, Permit No. 898, issued Effective on August 18, 1995, you are ACTION: Issuing a directive to the directed to amend further the directive dated to NMFS, Southwest Fisheries Science Commissioner of Customs adjusting a Center, La Jolla, CA 92038, was January 24, 1994 to increase the limit for limit and import charges. 1 modified. Category 342 to 271,586 dozen , as provided EFFECTIVE DATE: August 18, 1995. under the terms of the current bilateral textile ADDRESSES: The modification and agreement between the Governments of the FOR FURTHER INFORMATION CONTACT: related documents are available for United States and the People’s Republic of Jennifer Aldrich, International Trade review upon written request or by China. Specialist, Office of Textiles and appointment in the following office(s): You are directed to deduct 15,390 dozen, Apparel, U.S. Department of Commerce, Permits Division, Office of Protected for goods exported during 1994, from the Resources, National Marine Fisheries (202) 482–4212. For information on the charges made to the limit established in the Service, 1315 East-West Highway, Suite quota status of the 1995 limit, refer to directive dated December 16, 1994 for textile 13130 Silver Spring, MD 20910 (301/ the Quota Status Reports posted on the products in Category 342, produced or 713–2289); bulletin boards of each Customs port or manufactured in China and exported during Director, Southwest Region, National call (202) 927–6703. For information on 1995. This same amount shall be charged to Marine Fisheries Service, 501 West embargoes and quota re-openings, call Category 342 for the period January 1, 1994 Ocean Boulevard, Suite 4200, Long (202) 482–3715. through December 31, 1994. Beach, CA 90802–4213 (310/980–4001); SUPPLEMENTARY INFORMATION: The Committee for the Implementation of and Authority: Executive Order 11651 of March Textile Agreements has determined that Coordinator, Pacific Area Office, 3, 1972, as amended; section 204 of the these actions fall within the foreign affairs Southwest Region, National Marine Agricultural Act of 1956, as amended (7 exception to the rulemaking provisions of 5 Fisheries Service, 2570 Dole Street, U.S.C. 1854). U.S.C. 553(a)(1). Room 106, Honolulu, HI 96822–2396 The 1994 limit for Category 342 is Sincerely, (808/973–2987). being increased by application of swing. SUPPLEMENTARY INFORMATION: The Also, import charges for goods exported subject modification has been issued during 1994 are being adjusted. As a Rita D. Hayes, under the authority of the Marine result, the 1995 limit for Category 342, Chairman, Committee for the Implementation Mammal Protection Act of 1972, as which is currently filled, will re-open. of Textile Agreements. amended (16 U.S.C. 1361 et seq.), the A description of the textile and [FR Doc. 95–20295 Filed 8–15–95; 8:45 am] provisions of§§ 216.33(d) and (e) of the apparel categories in terms of HTS BILLING CODE 3510±DR±F Regulations Governing the Taking and numbers is available in the Importing of Marine Mammals (50 CFR CORRELATION: Textile and Apparel part 216), the Endangered Species Act of Categories with the Harmonized Tariff 1973, as amended (16 U.S.C. 1531 et Schedule of the United States (see seq.), and the provisions of § 222.25 of Federal Register notice 59 FR 65531, 1 The limit has not been adjusted to account for the regulations governing the taking, published on December 20, 1994). Also any imports exported after December 31, 1993. 42548 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Adjustment of Import Limits for Certain concerns imports of certain cotton, wool, 3 Category 359±V: only HTS numbers Cotton, Wool, Man-Made Fiber, Silk man-made fiber, silk blend and other 6103.19.2030, 6103.19.9030, 6104.12.0040, vegetable fiber textile products, produced or 6104.19.8040, 6110.20.1022, 6110.20.1024, Blend and Other Vegetable Fiber 6110.20.2030, 6110.20.2035, 6110.90.9044, Textile Products Produced or manufactured in Macau and exported during 6110.90.9046, 6201.92.2010, 6202.92.2020, Manufactured in Macau the twelve-month period which began on 6203.19.1030, 6203.19.9030, 6204.12.0040, January 1, 1995 and extends through 6204.19.8040, 6211.32.0070 and August 10, 1995. December 31, 1995. 6211.42.0070. 4 Effective on August 17, 1995, you are Category 659±S: only HTS numbers AGENCY: Committee for the 6112.31.0010, 6112.31.0020, 6112.41.0010, Implementation of Textile Agreements directed to amend the directive dated March 6112.41.0020, 6112.41.0030, 6112.41.0040, (CITA). 30, 1995 to adjust the limits for the following 6211.11.1010, 6211.11.1020, 6211.12.1010 categories, as provided under the terms of the and 6211.12.1020. ACTION: Issuing a directive to the Commissioner of Customs adjusting Uruguay Round Agreements Act and the The Committee for the Implementation of Uruguay Round Agreement on Textiles and limits. Textile Agreements has determined that Clothing: these actions fall within the foreign affairs EFFECTIVE DATE: August 17, 1995. exception to the rulemaking provisions of 5 U.S.C. 553(a)(1). FOR FURTHER INFORMATION CONTACT: Sincerely, Helen L. LeGrande, International Trade Rita D. Hayes, Category Adjusted twelve-month Specialist, Office of Textiles and limit 1 Apparel, U.S. Department of Commerce, Chairman, Committee for the Implementation of Textile Agreements. (202) 482–4212. For information on the Levels in Group I [FR Doc. 95–20196 Filed 8–15–95; 8:45 am] quota status of these limits, refer to the 313 ...... 2,691,722 square me- Quota Status Reports posted on the ters. BILLING CODE 3510±DR±F bulletin boards of each Customs port or 314 ...... 1,165,500 square me- call (202) 927–6709. For information on ters. embargoes and quota re-openings, call 315 ...... 2,120,756 square me- Adjustment of an Import Limit for (202) 482–3715. ters. Certain Cotton and Man-Made Fiber 333/334/335/833/ 231,826 dozen of Textile Products Produced of SUPPLEMENTARY INFORMATION: 834/835. which not more than Manufactured in Malaysia Authority: Executive Order 11651 of March 119,802 dozen shall 3, 1972, as amended; section 204 of the be in Categories August 11, 1995. Agricultural Act of 1956, as amended (7 333/335/833/835. AGENCY: Committee for the U.S.C. 1854). 336/836 ...... 56,721 dozen. Implementation of Textile Agreements The current limits for certain 338 ...... 298,670 dozen. (CITA). categories are being adjusted, variously, 339 ...... 1,243,954 dozen. ACTION: Issuing a directive to the for swing, carryover and carryforward 340 ...... 292,321 dozen. Commissioner of Customs reducing a 341 ...... 210,907 dozen. used. limit. 342 ...... 95,413 dozen. A description of the textile and 345 ...... 58,343 dozen. apparel categories in terms of HTS EFFECTIVE DATE: August 18, 1995. 347/348/847 ...... 702,950 dozen. FOR FURTHER INFORMATION CONTACT: Ross numbers is available in the 350/850 ...... 63,609 dozen. CORRELATION: Textile and Apparel Arnold, International Trade Specialist, 351/851 ...... 65,809 dozen. Office of Textiles and Apparel, U.S. Categories with the Harmonized Tariff 2 359±C/659±C ...... 365,980 kilograms. Department of Commerce, (202) 482– Schedule of the United States (see 359±V 3 ...... 109,360 kilograms. 4212. For information on the quota Federal Register notice 59 FR 65531, 633/634/635 ...... 515,317 dozen. published on December 20, 1994). Also 638/639/838 ...... 1,594,619 dozen. status of this limit, refer to the Quota see 60 FR 17331, published on April 5, 640 ...... 125,826 dozen. Status Reports posted on the bulletin 1995. 641/840 ...... 216,262 dozen. boards of of each Customs port or call The letter to the Commissioner of 642/842 ...... 114,250 dozen. (202) 927–5850. For information on Customs and the actions taken pursuant 645/646 ...... 277,451 dozen. embargoes and quota re-openings, call to it are not designed to implement all 647/648 ...... 519,061 dozen. (202) 482–3715. of the provisions of the Uruguay Round 659±S 4 ...... 127,219 kilograms. SUPPLEMENTARY INFORMATION: Agreements Act and the Uruguay Round Group II Authority: Executive Order 11651 of March Agreement on Textiles and Clothing, but 400±469, as a group 1,627,395 square me- 3, 1972, as amended; section 204 of the are designed to assist only in the ters equivalent. Agricultural Act of 1956, as amended (7 implementation of certain of their Sublevel in group U.S.C. 1854). 445/446 ...... 91,688 dozen. provisions. The current limit for the Fabric Group Rita D. Hayes, 1 The limits have not been adjusted to ac- is being reduced for carryforward used Chairman, Committee for the Implementation count for any imports exported after December during the previous period. 31, 1994. of Textile Agreements. A description of the textile and 2 Category 359±C: only HTS numbers Committee for the Implementation of Textile 6103.42.2025, 6103.49.8034, 6104.62.1020, apparel categories in terms of HTS Agreements 6104.69.8010, 6114.20.0048, 6114.20.0052, numbers is available in the 6203.42.2010, 6203.42.2090, 6204.62.2010, August 10, 1995. CORRELATION: Textile and Apparel 6211.32.0010, 6211.32.0025 and Categories with the Harmonized Tariff Commissioner of Customs, 6211.42.0010; Category 659±C: only HTS Department of the Treasury, Washington, DC numbers 6103.23.0055, 6103.43.2020, Schedule of the United States (see 20229. 6103.43.2025, 6103.49.2000, 6103.49.8038, Federal Register notice 59 FR 65531, 6104.63.1020, 6104.63.1030, 6104.69.1000, Dear Commissioner: This directive published on December 20, 1994). Also 6104.69.8014, 6114.30.3044, 6114.30.3054, see 60 FR 17332, published on April 5, amends, but does not cancel, the directive 6203.43.2010, 6203.43.2090, 6203.49.1010, issued to you on March 30, 1995, by the 6203.49.1090, 6204.63.1510, 6204.69.1010, 1995. Chairman, Committee for the Implementation 6210.10.9010, 6211.33.0010, 6211.33.0017 The letter to the Commissioner of of Textile Agreements. That directive and 6211.43.0010. Customs and the actions taken pursuant Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42549 to it are not designed to implement all Apparel, U.S. Department of Commerce, of the provisions of the Uruguay Round (202) 482–4212. For information on the Agreements Act and the Uruguay Round quota status of these limits, refer to the Category Twelve-month restraint Agreement on Textiles and Clothing, but Quota Status Reports posted on the limit 1 are designed to assist only in the bulletin boards of each Customs port or 435 ...... 13,925 dozen. implementation of certain of their call (202) 927–5850. For information on 443 ...... 219,416 numbers. provisions. embargoes and quota re-openings, call Rita D. Hayes, (202) 482–3715. 1 The limits have not been adjusted to ac- count for any imports exported after December Chairman, Committee for the Implementation SUPPLEMENTARY INFORMATION: 31, 1994. of Textile Agreements. Authority: Executive Order 11651 of March The Committee for the Implementation of Committee for the Implementation of Textile 3, 1972, as amended; section 204 of the Textile Agreements has determined that Agricultural Act of 1956, as amended (7 Agreements these actions fall within the foreign affairs U.S.C. 1854). August 11, 1995. exception of the rulemaking provisions of 5 Commissioner of Customs, The current limits for certain U.S.C. 553(a)(1). Department of the Treasury, Washington, DC categories are being adjusted, variously, Sincerely, 20229. for swing, carryover and recrediting of Rita D. Hayes, Dear Commissioner: This directive unused carryforward. Chairman, Committee for the Implementation amends, but does not cancel, the directive A description of the textile and of Textile Agreements. issued to you on March 30, 1995, by the apparel categories in terms of HTS [FR Doc. 95–20198 Filed 8–15–95; 8:45 am] Chairman, Committee for the Implementation numbers is available in the BILLING CODE 3510±DR±F of Textile Agreements. That directive CORRELATION: Textile and Apparel concerns imports of certain cotton, wool and Categories with the Harmonized Tariff man-made fiber textiles and textile products and silk blend and other vegetable fiber Schedule of the United States (see Adjustment of Import Limits for Certain apparel, produced or manufactured in Federal Register notice 59 FR 65531, Cotton and Man-Made Fiber Textile Malaysia and exported during the twelve- published on December 20, 1994). Also Products Produced of Manufactured in month period which began on January 1, see 59 FR 62718, published on Thailand 1995 and extends through December 31, December 6, 1994. 1995. The letter to the Commissioner of August 10, 1995. Effective on August 18, 1995, you are Customs and the actions taken pursuant AGENCY: Committee for the directed to amend the March 30, 1995 to it are not designed to implement all Implementation of Textile Agreements directive to reduce the limit for Categories of the provisions of the Uruguay Round (CITA). 218, 219, 220, 225–227, 313–315, 317, 326, Agreements Act and the Uruguay Round 611, 613/614/615/617, 619 and 620 in the ACTION: Issuing a directive to the Fabric Group to 96,779,476 square meters Agreement on Textiles and Clothing, but Commissioner of Customs adjusting equivalent 1, as provided under the terms of are designed to assist only in the limits. the Uruguay Round Agreements Act and the implementation of certain of their Uruguay Round Agreement on Textiles and provisions. EFFECTIVE DATE: August 17, 1995. Clothing. Rita D. Hayes, FOR FURTHER INFORMATION CONTACT: Ross The Committee for the Implementation of Chairman, Committee for the Implementation Arnold, International Trade Specialist, Textile Agreements has determined that this of Textile Agreements. Office of Textiles and Apparel, U.S. action falls within the foreign affairs exception to the rulemaking provisions of 5 Committee for the Implementation of Textile Department of Commerce, (202) 482– U.S.C.553(a)(1). Agreements 4212. For information on the quota Sincerely, August 10, 1995. status of these limits, refer to the Quota Status Reports posted on the bulletin Rita D. Hayes, Commissioner of Customs, Department of the Treasury, Washington, DC boards of of each Customs port or call Chairman, Committee for the Implementation 20229. (202) 927–5850. For information on of Textile Agreements. Dear Commissioner: This directive embargoes and quota re-openings, call [FR Doc.95–20296 Filed 8–15–95; 8:45 am] amends, but does not cancel, the directive (202) 482–3715. BILLING CODE 3510±DR±F issued to you on November 29, 1994, by the Chairman, Committee for the Implementation SUPPLEMENTARY INFORMATION: of Textile Agreements. That directive Authority: Executive Order 11651 of March Adjustment of Import Restraint Limits concerns imports of certain cotton, wool and 3, 1972, as amended; section 204 of the for Certain Wool Textile Products man-made fiber textile products, produced or Agricultural Act of 1956, as amended (7 Produced or Manufactured in Poland manufactured in Poland and exported during U.S.C. 1854). the twelve-month period beginning on The current limits for certain August 10, 1995. January 1, 1995 and extending through categories are being adjusted, variously, AGENCY: Committee for the December 31, 1995. Implementation of Textile Agreements Effective on August 17, 1995, you are for special shift, swing, carryforward, (CITA). directed to adjust the limits for the following carryforward used and unused categories, pursuant to the Uruguay Round carryforward. ACTION: Issuing a directive to the Agreements Act and the Uruguay Round A description of the textile and Commissioner of Customs adjusting Agreement on Textiles and Clothing (ATC): apparel categories in terms of HTS limits. numbers is available in the EFFECTIVE DATE: August 17, 1995. CORRELATION: Textile and Apparel FOR FURTHER INFORMATION CONTACT: Categories with the Harmonized Tariff Category Twelve-month restraint Schedule of the United States (see Naomi Freeman, International Trade limit 1 Specialist, Office of Textiles and Federal Register notice 59 FR 65531, 410 ...... 2,483,954 square me- published on December 20, 1994). Also 1 The limit has not been adjusted to account for ters. see 60 FR 17337, published on April 5, any imports exported after December 31, 1994. 433 ...... 20,241 dozen. 1995. 42550 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices The letter to the Commissioner of Textile and Apparel Categories With 600.14, is announcing its intention to Customs and the actions taken pursuant the Harmonized Tariff Schedule of the enter into a cooperative agreement with to it are not designed to implement all United States; Changes to the 1995 Auburn University (AU) to develop an of the provisions of the Uruguay Round Correlation energy efficient process to produce Agreements Act and the Uruguay Round strong and easily bleachable Kraft pulp August 10, 1995. Agreement on Textiles and Clothing, but with minimum impact on the AGENCY: Committee for the are designed to assist only in the environment through advanced process Implementation of Textile Agreements implementation of certain of their control. The Institute of Paper Science (CITA). provisions. and Technology (IPST) in Atlanta, GA, ACTION: Changes to the 1995 Correlation. will conduct research activities as a Rita D. Hayes, subcontractor to AU. Chairman, Committee for the Implementation FOR FURTHER INFORMATION CONTACT: Lori ADDRESSES: Questions regarding this of Textile Agreements. E. Goldberg, International Trade Specialist, Office of Textiles and announcement may be addressed to the Committee for the Implementation of Textile U.S. Department of Energy, Golden Agreements Apparel, U.S. Department of Commerce, (202) 482–3400. Field Office, 1617 Cole Blvd., Golden, August 10, 1995. Colorado 80401, Attention: John Motz, Commissioner of Customs, SUPPLEMENTARY INFORMATION: Contract Specialist. The telephone Department of the Treasury, Washington, DC The Correlation: Textile and Apparel number is 303–275–4737. 20229. Categories based on the Harmonized SUPPLEMENTARY INFORMATION: This Dear Commissioner: This directive Tariff Schedule of the United States award is a result of a DOE published amends, but does not cancel, the directive (1995) presents the harmonized tariff Notice of Program Interest for the Pulp issued to you on March 30, 1995, by the numbers under each of the cotton, wool, and Paper Industry. The DOE has Chairman, Committee for the Implementation man-made fiber, silk blend and other evaluated the unsolicited application of Textile Agreements. That directive vegetable fiber categories used by the according to § 600.14 of the DOE concerns imports of certain cotton, wool, United States in monitoring imports of Assistance Regulations, 10 CFR part man-made fiber, silk blend and other these textile products and in the 600, and the criteria for selection in vegetable fiber textiles and textile products, administration of the bilateral § 600.14 (e) (1). Based on this produced or manufactured in Thailand and agreement program. The Correlation evaluation, it is recommended that the exported during the twelve-month period should be amended to include the unsolicited application for Federal which began on January 1, 1995 and extends following changes which were effective Assistance entitled, ‘‘Energy Efficient through December 31, 1995. on July 1, 1995: Kraft Pulping for Highly Bleachable, Effective on August 17, 1995, you are Low Lignin Pulp,’’ submitted by AU, be directed to adjust the limits for the following accepted for support. This award will categories, as provided under the Uruguay not be made for at least 14 days, to Round Agreements Act and the Uruguay Changes in the 1995 Correlation allow for public comment. Round Agreement on Textiles and Clothing: Under this cooperative agreement, AU Replace 4202.22.8060 (871) with will develop an energy efficient process 4202.22.8080ÐDefinition remains the same. to produce strong easily bleachable Delete 5311.00.4000 (810). Kraft pulp with minimum impact on the Category Adjusted twelve-month environment through advanced process limit 1 Add 5311.00.4010 (810)ÐWoven fabrics of true hemp fibers. control. The research conducted by AU Group II Add 5311.00.4020 (810)ÐWoven fabrics of and IPST will have three principle other vegetable textile fibers, other than of 237, 330±359, 431± 230,948,312 square objectives. The first will be the true hemp fibers. 459, 630±659 and meters equivalent. development of advanced control Replace 6505.90.9090 (859) with 831±859, as a strategies and algorithms for 6505.90.9095ÐDefinition remains the group. sophisticated, real-time monitoring and same. Sublevels in Group control of the commercial pulping II Rita D. Hayes, process. The second will identify 334/634 ...... 479,046 dozen. control objectives, in the form of Chairman, Committee for the Implementation 338/339 ...... 2,020,963 dozen. of Textile Agreements. optimized pulping chemical 638/639 ...... 1,694,964 dozen. concentration profiles, reaction [FR Doc. 95–20197 Filed 8–15–95; 8:45 am] products concentration profiles and 1 The limits have not been adjusted to ac- BILLING CODE 3510±DR±F count for any imports exported after December temperature histories. The third will be 31, 1994. the identification of pulping conditions and modifications that will result in the The Committee for the Implementation of DEPARTMENT OF ENERGY production of pulp that is not only Textile Agreements has determined that easily bleached to a high brightness, but these actions fall within the foreign affairs Golden Field Office; Federal also of sufficiently light color as to be exception to the rulemaking provisions of 5 Assistance Award to Auburn directly usable for many applications U.S.C.553(a)(1). University that now require bleaching. Sincerely, AGENCY: Department of Energy. AU and IPST have demonstrated Rita D. Hayes, ACTION: Notice of Financial Assistance capabilities in the technologies directly Chairman, Committee for the Implementatin Award in response to an Unsolicited related to the proposed project and of Textile Agreements. Financial Assistance Application. personnel that should provide a basis [FR Doc. 95–20199 Filed 8–15–95; 8:45 am] for a successful project. Both BILLING CODE 3510±DR±F SUMMARY: The U.S. Department of institutions have strong ties with pulp Energy (DOE), pursuant to the DOE and paper manufacturing operations, Financial Assistance Rules, 10 CFR equipment manufacturing and control Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42551 companies. Since many or these and oxygen separately, (2) development Regulations, the unsolicited proposal companies are represented on AU and of solid electrolytes for water entitled ‘‘Biosynthesis of Long-Chain IPST advisory committees, a sound electrolysis at higher temperatures, (3) Dicarboxylic Acid Monomers from basis for technology transfer is in place. photovoltaic electrolysis using an Renewable Feedstocks’’ and The proposal has been found to be inexpensive solar collector such as a recommends that the unsolicited meritorious, and it is recommended that parabolic trough, (4) thermocatalytic proposal be accepted for support the unsolicited application be accepted decomposition of natural gas, and (5) without further competition in for support. The proposed project is not technical analysis and research support accordance with Section 600.14 of the eligible for financial assistance under a for a separate financial assistance Federal Assistance Regulations. This recent, current, or planned solicitation. recipient in the DOE hydrogen program. award will not be made for at least 14 The project cost over 5 years is The proposal has been found to be days to allow for public comment. estimated to be $4,288,090 total, with meritorious in the DOE evaluation. The Under this cooperative agreement, GE the DOE share being $2,829,101. FSEC program represents a unique and its subcontractors will conduct research and development activities Issued in Golden, Colorado, on August 4, approach to develop and demonstrate 1995. technologies which could result in regarding a bioprocess to convert fatty acid substrates into low-cost, long-chain John W. Meeker, reduced costs for hydrogen production. dicarboxylic acid monomers for the Chief, Procurement, GO. The team proposed by FSEC has the technical capabilities and commitment plastics industry. The research will [FR Doc. 95–20288 Filed 8–15–95; 8:45 am] which should provide a basis for a address biocatalyst development, BILLING CODE 6450±01±P successful project. The proposed project bioprocess development, and is not eligible for financial assistance application development. The proposal has been found to be Golden Field Office; Federal under a recent, current, or planned solicitation. meritorious in the DOE evaluation. The Assistance Award to Florida Solar GE program represents a unique and Energy Center The project cost over three years is estimated to be $1,409,000 total, with proprietary process for monomer AGENCY: Department of Energy. the DOE contributing all costs. production. The team proposed by GE has the technical capabilities, ACTION: Notice of Financial Assistance Issued in Golden, Colorado, on August 4, proprietary technology, and Award in Response to an Unsolicited 1995. commercialization commitment which Financial Assistance Application. John W. Meeker, should provide the basis for a successful Chief, Procurement, GO. SUMMARY: The U.S. Department of project. The proposed project is not Energy (DOE), pursuant to the DOE [FR Doc. 95–20290 Filed 8–15–95; 8:45 am] eligible for financial assistance under a Financial Assistance Rules, 10 CFR BILLING CODE 6450±01±P recent, current, or planned solicitation. 600.7, is announcing its intention to The project cost over eighteen months award a grant to Florida Solar Energy is estimated to be $2,137,129 total, with Golden Field Office; Notice of Federal Center (FSEC) to conduct research and the DOE share being $1,602,315. Assistance Award to General Electric development activities on hydrogen Issued in Golden, Colorado, on August 8, Company production methods. The proposed 1995. technology could change the basic AGENCY: Department of Energy. John W. Meeker, concept and engineering design of ACTION: Notice of Financial Assistance Chief, Procurement, GO. hydrogen production systems and, as a Award in Response to an Unsolicited [FR Doc. 95–20286 Filed 8–15–95; 8:45 am] result, reduce the cost of hydrogen. Financial Assistance Application. BILLING CODE 6450±01±P ADDRESSES: Questions regarding this announcement may be addressed to the SUMMARY: The U.S. Department of U.S. Department of Energy, Golden Energy (DOE), pursuant to the DOE Golden Field Office; Federal Field Office, 1617 Cole Blvd., Golden, Financial Assistance Rules, 10 CFR Assistance Award to Institute of Paper Colorado 80401, Attention: John Motz, 600.7, is announcing its intention to Science and Technology award a cooperative agreement to Contract Specialist. The telephone AGENCY: Department of Energy. number is 303–275–4737. General Electric Company (GE) to ACTION: Notice of Financial Assistance SUPPLEMENTARY INFORMATION: DOE has conduct research and development activities on the use of renewable Award in response to an Unsolicited evaluated, in accordance with § 600.14 Financial Assistance Application. of the Federal Assistance Regulations, feedstocks for monomers to be used in the unsolicited proposal entitled the plastics industry. The use of SUMMARY: The U.S. Department of ‘‘Sustainable Hydrogen Production’’ and agricultural products instead of Energy (DOE), pursuant to the DOE recommends that the unsolicited petroleum products for such monomers Financial Assistance Rules, 10 CFR proposal be accepted for support will save energy, reduce hazardous 600.14, is announcing its intention to without further competition in waste, and provide key materials for a enter into a cooperative agreement with accordance with § 600.14 of the Federal new generation of thermoplastics. the Institute of Paper Science and Assistance Regulations. This award will ADDRESSES: Questions regarding this Technology (IPST) to develop efficient not be made for at least 14 days to allow announcement may be addressed to the methods for corrosivity monitoring in for public comment. U.S. Department of Energy, Golden Kraft mill boilers. Under this grant, FSEC will conduct Field Office, 1617 Cole Blvd., Golden, ADDRESSES: Questions regarding this five separate research projects which Colorado 80401, Attention: John Lewis, announcement may be addressed to the will examine sustainable hydrogen Contract Specialist. The telephone U.S. Department of Energy, Golden production methods. The proposed number is 303–275–4739. Field Office, 1617 Cole Blvd., Golden, tasks include research on the following: SUPPLEMENTARY INFORMATION: DOE has Colorado 80401, Attention: John Motz, (1) Electrolysis using a dual bed evaluated, in accordance with Section Contract Specialist. The telephone photosystem which evolves hydrogen 600.14 of the Federal Assistance number is 303–275–4737. 42552 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices SUPPLEMENTARY INFORMATION: This [FE Docket PP±106 and EA±106] Assistance Agreement and an Economy award is a result of a DOE published Energy Agreement. However, to date Notice of Program Interest for the Pulp Application for Presidential Permit and these agreements have not been signed. and Paper Industry. The DOE has Electricity Export Authorization by This application has been docketed as Arizona Public Service Co. evaluated the unsolicited application EA–106. according to § 600.14 of the DOE AGENCY: Office of Fossil Energy, Procedural Matters: Assistance Regulations, 10 CFR part Department of Energy. Any person desiring to be heard or to 600, and the criteria for selection in ACTION: Notice of applications. § 600.14(e)(1). Based on this evaluation, protest these applications should file a it is recommended that the unsolicited SUMMARY: Arizona Public Service petition(s) to intervene or protest at the address provided above in accordance application for Federal Assistance Company (APS) has applied for a with §§ 385.211 or 385.214 of the rules entitled, ‘‘Corrosivity Monitoring of Presidential Permit to construct a new of practice and procedure (18 CFR Kraft Mill Boilers,’’ submitted by IPST, electric transmission facility at the U.S. 385.211, 385.214). be accepted for support. This award will border with Mexico. In addition APS has applied for authorization to export Any such petitions and protests not be made for at least 14 days, to should be filed with the DOE on or allow for public comment. electric energy to Mexico over those facilities. before the date listed above. Additional copies of such petitions to intervene or Under this cooperative agreement, DATES: Comments, protests or requests IPST, with assistance from various to intervene must be submitted on or protests also should be filed directly subcontractors, will develop an before September 15, 1995. with: Dennis Beals, Manager, Bulk extensive corrosion kinetics database Power Trading and Customer Services, ADDRESSES: Comments, protests or Arizona Public Service Company, P.O. and a device to measure conditions that requests to intervene should be control corrosion in an operating Box 53999, Station 9860, Phoenix, AZ addressed as follows: Office of Coal & 85072–3999, Phone: (602) 250–3101; recovery boiler. The benefit of such an Electricity (FE–52), Office of Fuels approach will allow operators to predict and Bruce A. Gardner, Esq., Senior Programs, Office of Fossil Energy, Attorney, Arizona Public Service or explain the impact of decisions prior Department of Energy, 1000 to damaging boiler components. The Company, P.O. Box 53999, Station 9820, Independence Avenue, SW., Phoenix, AZ 85072–3999, Phone: (602) project will be divided into four one- Washington, DC 20585. year phases. Phase I will establish the 250–3507 FOR FURTHER INFORMATION CONTACT: Pursuant to 18 CFR 385.211, protests feasibility of the project concept. Phase Loren Farrar (Program Office) 301–903– and comments will be considered by the II will involve detailed studies on the 2338 or Michael Skinker (Program DOE in determining the appropriate most promising candidates for corrosion Attorney) 202–586–6667. action to be taken, but will not serve to measurements. Phase III will consist of SUPPLEMENTARY INFORMATION: The make protestants parties to the small scale experiments conducted in a construction, connection, operation, and proceeding(s). Any person wishing to laboratory furnace to test the efficacy of maintenance of facilities at the become a party must file a petition to the measurement system developed in international border of the United States intervene under 18 CFR 385.214. Phase II. In the final phase, Phase IV, the for the transmission of electrical energy Section 385.214 requires that a petition measurement device and corrosion is prohibited in the absence of a to intervene must state, to the extent probes will be installed in an operating Presidential permit pursuant to known, the position taken by the boiler for comparison. Executive Order No. 12038. Exports of petitioner and the petitioner’s interest in IPST has demonstrated capabilities in electricity from the United States are sufficient factual detail to demonstrate the technologies directly related to the also regulated and require authorization either that the petitioner has a right to proposed project and personnel that under section 202(e) of the Federal participate because it is a State should provide a basis for a successful Power Act. Commission; that it has or represents an project. IPST and the supporting On June 22, 1995, APS filed an interest which may be directly affected subcontractors have strong ties with application with the Office of Fossil by the outcome of the proceeding(s), pulp and paper manufacturing Energy (FE) of the Department of Energy including any interest as a consumer, operations, equipment manufacturing, (DOE) for a Presidential permit to customer, competitor, or security holder and control companies which should construct a new 34.5-kilovolt (kV) of a party to the proceeding; or that the present a sound basis for technology transmission line across the U.S.- petitioner’s participation is in the public transfer. Mexican border near St. Luis, Mexico. interest. The proposed line would tap an existing A final decision will be made on the The proposal has been found to be 34.5–kV line owned and operated by the application for Presidential permit meritorious, and it is recommended that U.S. Bureau of Reclamation and extend contained in docket PP–106 after a the unsolicited application be accepted approximately 1000 feet to the U.S. determination is made by the DOE that for support. The proposed project is not border with Mexico. This application the proposed action is in the public eligible for financial assistance under a has been docketed as PP–106. interest and will not adversely impact recent, current, or planned solicitation. On July 2, 1995, APS filed a on the reliability of the U.S. electric The project cost over 4 years is companion application for authority to power supply system. Before a final estimated to be $1,753,362 total, with export electric energy over the decision is made on the export the DOE share being $1,153,732. international transmission facilities application contained in docket EA– Issued in Golden, Colorado, on August 8, proposed in the PP–106 application. 106, the DOE must determine that the 1995. APS proposes to export up to 30 proposed export would not impair the megawatts of electrical capacity and sufficiency of electric supply within the John W. Meeker, associated energy to the Comision U.S. and would not impede or tend to Chief, Procurement, GO. Federal de Electricidad, the Mexican impede the coordination in the public [FR Doc. 95–20287 Filed 8–15–95; 8:45 am] national electric utility, under the terms interest of facilities subject to the BILLING CODE 6450±01±P of a proposed Reciprocal Emergency jurisdiction of the DOE. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42553 Before a Presidential permit or comments and information regarding The waiver process allows the electricity export authorization may be the Petition for Waiver. Assistant Secretary to temporarily waive issued or amended, the environmental DATES: DOE will accept comments, data, the test procedures for a particular basic impacts of the proposed DOE action and information not later than model when a petitioner shows that the must be evaluated pursuant to the September 15, 1995. basic model contains one or more National Environmental Policy Act of design characteristics which prevent ADDRESSES: Written comments and 1969 (NEPA). testing according to the prescribed test Copies of this application will be statements shall be sent to: Department procedures, or when the prescribed test made available, upon request, for public of Energy, Office of Energy Efficiency procedures may evaluate the basic inspection and copying at the address and Renewable Energy, Case No. CW– model in a manner so unrepresentative provided above. 003, Mail Stop EE–431, Room 1J–018, of its true energy consumption as to Forrestal Building, 1000 Independence Issued in Washington, DC, on August 9, provide materially inaccurate Avenue, SW., Washington, DC, 20585 comparative data. Waivers generally 1995. (202) 586–7574. Anthony J. Como, remain in effect until final test FOR FURTHER INFORMATION CONTACT: procedure amendments become Director, Office of Coal & Electricity, Office of Fuels Programs, Office of Fossil Energy. P. Marc LaFrance, U.S. Department of effective, resolving the problem that is Energy, Office of Energy Efficiency the subject of the waiver. [FR Doc. 95–20291 Filed 8–15–95; 8:45 am] and Renewable Energy, Mail Station The Interim Waiver provisions, added BILLING CODE 6450±01±P EE–431, Forrestal Building, 1000 by the 1986 amendment, allow the Independence Avenue SW., Assistant Secretary to grant an Interim Waiver when it is determined that the Office of Energy Efficiency and Washington, DC 20585, (202) 586– applicant will experience economic Renewable Energy 8423 Eugene Margolis, Esq., U.S. Department hardship if the Application for Interim [Case No. CW±003] of Energy, Office of General Counsel, Waiver is denied, if it appears likely Mail Station GC–72, Forrestal that the Petition for Waiver will be Energy Conservation Program for Building, 1000 Independence Avenue granted, and/or the Assistant Secretary Consumer Products: Granting of the SW., Washington, DC 20585, (202) determines that it would be desirable for Application for Interim Waiver and 586–9507. public policy reasons to grant Publishing of the Petition of Miele immediate relief pending a SUPPLEMENTARY INFORMATION: The Appliance Inc. (Miele) for Waiver From determination on the Petition for Energy Conservation Program for the Department of Energy Clothes Waiver. An Interim Waiver remains in Consumer Products (other than Washer Test Procedure, (Case No. effect for a period of 180 days, or until automobiles) was established pursuant CW±003). DOE issues its determination on the to the Energy Policy and Conservation Petition for Waiver, whichever is AGENCY: Office of Energy Efficiency and Act, Public Law 94–163, 89 Stat. 917, sooner, and may be extended for an Renewable Energy, Department of amended by the National Energy additional 180 days, if necessary. Energy. Conservation Policy Act, Public Law Pursuant to § 430.27(g), the Assistant SUMMARY: Today’s notice publishes a 95–619, 92 Stat. 3266, the National Secretary shall publish in the Federal letter granting an Interim Waiver to Appliance Energy Conservation Act of Register notice of each waiver granted, Miele and a Petition for Waiver request 1987, Public Law 100–12, the National and any limiting conditions of each from the existing Department of Energy Appliance Energy Conservation waiver. (Department or DOE) clothes washer test Amendments of 1988, Public Law 100– In accordance with § 430.27 of 10 CFR procedure for the company’s clothes 357, and the Energy Policy Act of 1992, Part 430, on June 2, 1995, Miele filed a washer models W1903, W1918, and Public Law 102–486, 106 Stat. 2776, Petition for Waiver and an Application W1930. The design features that differ which requires DOE to prescribe for Interim Waiver regarding its clothes from those covered by the existing standardized test procedures to measure washer models W1903, W1918, and clothes washer test procedure are: an the energy consumption of certain W1930, with the following design internal electrical heater for heating consumer products, including clothes features that differ from those covered wash water, a continuously variable washers. The intent of the test by the existing clothes washer test wash water temperature control; 208/ procedures is to provide a comparable procedure: an internal electrical heater 240 volt electrical power supply; and measure of energy consumption that for heating wash water; a continuously machine-controlled water fill capability. will assist consumers in making variable wash water temperature Miele seeks to test by internally purchasing decisions. These test control; 208/240 volt electrical power heating inlet cold water instead of using procedures appear at 10 CFR Part 430, supply; and machine-controlled water externally heated water; test by using Subpart B. fill capability. Miele’s Application seeks the coldest and hottest temperature DOE amended the prescribed test an Interim Waiver from the DOE setting available on its machines, along procedures by adding 10 CFR 430.27 on provisions that require an externally with warm (minimum of 100 °F to September 26, 1980, creating the waiver heated water supply, three specified maximum of 105 °F) and hot (minimum process (45 FR 64108). Thereafter, DOE temperature settings (i.e., 140° F, 100° F, of 140 °F to 145 °F) temperature settings further amended the appliance test and 60° F), 120 volt electrical power with new temperature use factors procedure waiver process to allow the supply, and manually selected water fill instead of the existing test procedure Assistant Secretary for Energy Efficiency settings. Instead, Miele requests the temperature requirements and and Renewable Energy (Assistant allowance to test its machines with: a temperature use factors; test using a Secretary) to grant an Interim Waiver cold water supply that is heated 208/240 volt power supply instead of a from test procedure requirements to internally for washing; the coldest and 120 volt power supply; and test without manufacturers that have petitioned DOE hottest temperature setting available on selecting a desired level of fill instead for a waiver of such prescribed test its machines along with warm of manually selecting minimum and procedures (51 FR 42823, November 26, (minimum of 100° F to maximum of maximum fill settings. DOE is soliciting 1986). 105° F) and hot (minimum of 140° F to 42554 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices maximum 145° F) temperature settings Washington, DC 20585 washer has a dual voltage conversion with new temperature use factors; August 10, 1995 capability, conduct the test at the highest manufactured specified voltages of 208/ voltage recommended by the manufacturer. Mr. Nick Ord, 2.3 Water temperature. 240; and allowing the machine to Vice-President and General Manager, Miele 2.3.1 Water-heating clothes washers. The automatically select the fill settings Appliances, Inc., 22D Worlds Fair Drive, temperature of the water supply shall be based on the existing test procedure test Somerset, NJ 08873 maintained at a minimum of 55°F (12.8°C) load. Dear Mr. Ord: This is in response to your and a maximum of 60°F (15.6°C). Petition for Waiver and Application for Miele states in its application that it (iii) Sections 3.2.1 through 3.3.5 in Interim Waiver of June 2, 1995, from the Appendix J shall be deleted and replaced is likely the Waiver will be granted, Department of Energy (the Department) test with the following: because waivers for clothes washers procedure pursuant to Title 10 CFR Part 3.2.1 Per-cycle electrical energy with such design characteristics were 430.27 for clothes washers, regarding Miele consumption at maximum fill. Set the water granted to Asko (59 FR 15719, April 4, Appliances Inc. (Miele) clothes washer level selector to the maximum fill position, models W1903, W1918, and W1930. The 1994) and New Harmony (59 FR 15710, if manually controlled. Miele clothes washers have the following 3.2.1.1 Hottest wash at maximum fill. April 4, 1994). Miele also stated that its design features that differ from those covered clothes washer is intended to be sold as Activate the machine and insert the by the existing clothes washer test procedure: appropriate test load as specified in Section a pair with one of the Miele clothes an internal electrical heater for heating wash 2.8.2.1. Select the normal or its equivalent dryers, and denial of an interim waiver water; a continuously variable wash water wash cycle. Where spin speed selection is for the clothes washer would adversely temperature control; 208/240 volt electrical available, set the control to its maximum affect sales of the clothes dryer as well. power supply; and machine-controlled water setting. Set the water temperature selector to fill capability. the hottest setting and activate the wash Miele indicated that because revenue Previous waivers from DOE test procedures cycle. Measure and record the kilowatt-hours from the sales of laundry products is for clothes washers with such design features of electrical energy consumed for the essential to the financial well-being of have been granted to DOE to Asko (59 FR complete cycle as Eht,max.. 15719, April 4, 1994) and New Harmony (59 its company, a denial would severely 3.2.1.2 Hot wash at maximum fill. Insert FR 15710, April 4, 1994). Thus, it appears affect the company. Miele explained a water temperature sensing device inside the likely that the Miele’s Petition for Waiver how its clothes washers are energy inner drum prior to testing. Activate the will be granted by DOE. efficient and innovative, and believes machine and insert the appropriate test load Miele also stated that its clothes washer is as specified in Section 2.8.2.1. Select the that from a public policy standpoint, the intended to be sold as a pair with one of the normal or its equivalent wash cycle. Where Interim Waiver should be granted to Miele clothes dryers, and that denial of an promote energy savings. interim waiver for the clothes washer would spin speed selection is available, set the control to its maximum setting. Set the water In those instances, where the likely adversely affect sales of the clothes dryer as well. Miele indicated that revenue from the temperature selector to the hot setting (a success of the Petition for Waiver has minimum of 140 °F (60 °C) and a maximum sales of laundry products is essential to the ° ° been demonstrated based upon DOE financial well-being of its company, and that of 145 F (62.8 C)) and activate the wash having granted a waiver for a similar a denial would severely affect the company. cycle. Verify the wash water temperature, which must be a minimum of 140 °F (60 °C) product design, it is in the public Miele explained how its clothes washers are ° ° interest to have similar products tested energy efficient and innovative, and believes and a maximum of 145 F (62.8 C). If the that from a public policy standpoint, the measured water temperature is not within the and rated for energy consumption on a specified range, stop testing, adjust the comparable basis. Interim Waiver should be granted to promote energy savings. temperature selector accordingly, and repeat Therefore, based on the above, DOE is Therefore, based on the likely approval of the procedure. Otherwise, proceed and granting Miele an Interim Waiver for its the Petition for Waiver and potential complete testing. Measure and record the clothes washer models WI1903, WI1918, economic hardship which may result if Miele kilowatt-hours of electrical energy consumed and WI1930. Pursuant to paragraph (e) is unable to sell its products during the time for the complete cycle as Eh,max. 3.2.1.3 Warm wash at maximum fill. of § 430.27 of the Code of Federal required to process the Petition for Waiver, the Department grants Miele’s Application Repeat Section 3.2.1.2 for a warm wash Regulations Part 430, the following ° ° for an Interim Waiver from the DOE test setting at a minimum of 100 F (37.8 C) and ° ° letter granting the Application for procedures for its clothes washer models a maximum of 105 F (40.6 C). Measure and Interim Waiver to Miele was issued. W1903, W1918, and W1930. record the kilowatt-hours of electrical energy Pursuant to paragraph (b) of 10 CFR Miele shall be permitted to test its clothes consumed for the complete cycle as Ew,max. 3.2.1.4 Cold wash at maximum fill. 430.27, DOE is hereby publishing the washers on the basis of the test procedures specified in 10 CFR Part 430, Subpart B, Repeat Section 3.2.1.1 for the coldest water ‘‘Petition for Waiver.’’ The Miele Appendix J, with the following setting. Measure and record the kilowatt- Appendix 1 of its Petition is not being modifications: hours of electrical energy consumed for the published, because it is essentially a (i) Add new sections, 1.19 and 1.20 in complete cycle as Ec,max. Ensure that the inlet duplicate to the modifications to the Appendix J to read as follows: water temperature is maintained per Section DOE test procedures provided in the 1.19 ‘‘Water-heating clothes washer’’ 2.3.1. Department’s letter granting the Interim means a clothes washer that has an internal 3.2.2 Per-cycle electrical energy and Waiver to Miele. However, the original electrical heater which provides all the consumption at minimum fill. Set the water level selector to the minimum fill position, submission is available upon request at energy needed to heat water for washing. 1.20 ‘‘Non-water-heating clothes washer’’ if manually controlled. the address provided at the beginning of means a clothes washer that does not have 3.2.2.1 Hottest wash at minimum fill. today’s notice. The petition contains no an internal electrical heater which provides Repeat Section 3.2.1.1 for a test load as confidential information. DOE solicits the energy needed to heat water for washing. specified in Section 2.8.2.1. Measure and comments, data and information (ii) Sections 2.2 and 2.3 in Appendix J record the kilowatt-hours of electrical energy regarding the Petition discussed above. shall be deleted and replaced with the consumed for the complete cycle as Eht,min. following: 3.2.2.2 Hot wash at minimum fill. Repeat Issued in Washington, DC August 10, 1995. 2.2 Electrical energy supply. Maintain the Section 3.2.1.2 for a test load as specified in Christine A. Ervin, electrical supply to the clothes washer Section 2.8.2.1. The hot wash setting shall be terminal block within 1.7 percent of 120/ at a minimum of 140 °F (60 °C) and a Assistant Secretary, Energy Efficiency and ° ° Renewable Energy. 208Y or 120/240 volts, as applicable to the maximum of 145 F (62.8 C). Measure and particular terminal block wiring system as record the kilowatt-hours of electrical energy Department of Energy specified by the manufacturer. If the clothes consumed for the complete cycle as Eh,min. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42555 3.2.2.3 Warm wash at minimum fill. for an additional 180-day period, if of the DOE test procedure, since the Repeat Section 3.2.1.2 for warm wash setting necessary. incoming water temperature cannot be at a minimum of 100 °F (37.8 °C) and a Best regards, controlled by thermostatically controlled ° ° maximum of 105 F (40.6 C). Measure and Christine A. Evin, valves as per Section 2.3, or by opening and record the kilowatt-hours of electrical energy closing the valves as called for in Section Assistant Secretary, Energy Efficiency and consumed for the complete cycle as Ew,min. 3.2.2.6. The W1918 and W1930 have both 3.2.2.4 Cold wash at minimum fill. Renewable Energy. cold and hot-water connections and Repeat Section 3.2.1.1 for the coldest wash Miele thermostatically controlled water valves, but setting. Measure and record the kilowatt- Appliances, Inc. the internal heater nonetheless heats the hours of electrical energy consumed for the wash water to whatever temperature is • complete cycle as Ec,min. Ensure that the inlet 22D Worlds Fair Drive Somerset NJ selected and maintains this temperature for • • water temperature is maintained per Section 08873 (908) 560–0899 Toll Free the duration of the wash program. Therefore, • 2.3.1. 1–800–843–7281 FAX (908) ??????? a waiver is warranted on all three models in (iv) Sections 4.1 through 4.6 in Appendix June 2, 1995 the light of the internal water heater.1 J shall be deleted and replaced with the Assistant Secretary, U.S. Department of • 208/240 volt electrical power supply. following: Energy, Office of Energy Efficiency and Miele’s units use a 208/240 volt power 4.1 Per-cycle temperature-weighted Renewable Resources, Room 5E–066, supply. Miele therefore requests a waiver machine electrical energy consumption for Forrestal Building, 1000 Independence from the DOE test provision that requires maximum and minimum water fill levels. Avenue, S.W., Washington, D.C. 20585 120+/¥2 volts electrical power supply. Calculate the per-cycle temperature-weighted • Variable wash water temperature electrical energy consumption for the Re: Application for Interim Waiver and Petition for Waiver, 10 C.F.R. Subparts B, controls. Miele’s clothes washers have maximum water fill level, Emax, and for the Appendix J—Uniform Test Method For variable wash water temperature controls. minimum water fill level, Emin, expressed in Since the selectable temperatures on the kilowatt-hours per cycle and defined as: Measuring Energy Consumption of Automatic and Semi-Automatic Clothes Miele models do not correspond to the Emax=(0.05 × Eht,max) + (0.25 × Ew,max) + (0.55 temperatures in the DOE test procedures, × Washers ° ° ° ° Ec,max) Dear Assistant Secretary: Miele which are 140 F/60 C for hot, 100 F/38 C for Emin=(0.05 × Eht,min) + (0.25 × Eh,min) + (0.55 warm, and 60°F/16°C for cold, Miele × Appliances, Inc. (‘‘Miele’’) hereby submits Ec,min) this application for Interim Waiver and therefore requests a waiver from the DOE test where: Petition for Waiver pursuant to 10 C.F.R. provision that requires testing at three Eht,max = as defined in Section 3.2.1.1 § 430.27. This Section provides for waiver of specific temperatures obtained using two Eh,max = as defined in Section 3.2.1.2 test methods on the grounds that a basic specified intake water temperatures. • Ew,max = as defined in Section 3.2.1.3 model contains design characteristics that Machine-controlled water-full capability. Ec,max = as defined in Section 3.2.1.4 either prevent testing according to the The DOE procedure is based on a manual Eht,min = as defined in Section 3.2.2.1 prescribed test procedure or produce data so water-fill control. Miele’s washing machines Eh,min = as defined in Section 3.2.2.2 unrepresentative of a covered product’s true do not have a manual water-fill control. Ew,min = as defined in Section 3.2.2.3 energy consumption characteristics as to Miele requests a waiver concerning its design Ec,min = as defined in Section 3.2.2.4 provide materially inaccurate comparative feature that automatically controls the water 4.2 Total per-cycle machine electrical data. Miele clearly qualifies for such relief. level in the clothes washer based on the energy consumption. Calculate the total per- Miele requests an interim waiver and a clothes load. cycle energy-consumption, ETE, expressed in waiver from DOE’s test procedures for its Miele therefore proposes an interim waiver kilowatt-hours per cycle and defined as: clothes washers Models W1903, W1918, and and waiver to amend the test procedure for ETE=(0.72 × Emax) + (0.28 × Emin) W1930. These models have the following testing its clothes washers, according to the where: design features that differ from those covered test method attached as Appendix 1 hereto. by DOE’s existing clothes washer testing Emax, Emin = as defined in Section 4.1 * * * * * (v) In CFR Section 430.22, paragraph procedures: Miele requests immediate relief by grant of • (j)(1)(i)(B), change the following: An internal electrical heater for heating the proposed interim waiver, justified by the clothes wash water; From: ‘‘. . . according to 4.6 of Appendix (j) following reasons: • Variable wash water temperature . . .’’ Likely Approval of Waiver. The Petition for controls; To: ‘‘. . .according to 4.2 of Appendix (j) Waiver is likely to be granted. Waivers • 208/240 volt electrical power supply; . . .’’ concerning clothes washers with such design and characteristics were granted to Asko and New (vi) Section 430.22 of the CFR, paragraph • machine-controlled water-fill capability. Harmony. The design characteristics of (j)(2), shall be deleted and replaced with the Miele requests that an interim waiver and water-heating clothes washers are distinctly following: a waiver be granted to allow for testing that different from non-heating clothes washers. It (J)(2) The energy factor for water-heating takes these features into account. clothes washers shall be the quotient of the seems very likely that a test method on the There is strong precedent for such an lines of the proposed method will be cubic foot capacity of the clothes container interim waiver and waver. See, 59 Fed. Reg. as determined in 3.1 of Appendix J to this approved. 15719 (April 4, 1994) (waiver; Asko, Inc.); 59 Economic Hardship. Clothes washers, subpart divided by the clothes washer energy Fed. Reg. 15710 (April 4, 1994) (waiver; New consumption per cycle expressed as the total together with clothes dryers, are an important Harmony Systems Corp.); 58 Fed. Reg. 47130 part of Miele’s business. Since the Miele per cycle machine electrical energy (Sept. 7, 1993) (interim waiver; Asko, Inc.); consumption as determined in 4.2 of clothes washer is intended to be sold as a 58 Fed. Reg. 33089 (June 15, 1993) (interim pair with one of the Miele clothes dryers, Appendix J to this subpart. The resulting waiver; New Harmony Systems Corp.). shall be rounded off to the nearest 0.01 cubic denial of an interim waiver for the clothes These four features are discussed below. washers would adversely affect sales of the foot per kilowatt-hour. • Internal electrical heater. Miele’s clothes This interim Waiver is based upon the clothes dryers as well. Since the revenue washer models W1903, W1918, and W1030 from the sale of laundry products is essential presumed validity of statements and all use an internal heater that heats the water to the financial well-being of the company, allegations submitted by Miele Appliances supplied for washing. The DOE test a denial would severely affect the company. Inc. This Interim Waiver may be revoked or procedure is not based on an internal heater. modified at any time upon a determination Since the nature of a water-heating clothes 1 that the factual basis underlying the washer is significantly different from a non- Miele believes that the simplest way to test the application is incorrect. W1918 and W1930 would be to allow them to be water-heating clothes washer, the waiver is tested using cold water only. The proposed test The Interim Waiver shall remain in effect warranted. Such a waiver was granted to procedure for Miele’s waiver adopts this approach. for a period of 180 days, or until the Asko and New Harmony. Another option would be to develop new equations Department acts on the Petition for Waiver, The W1903 has only a cold-water for the testing of a water-heating clothes washer whichever is sooner, and may be extended connection. This places it outside the scope with both cold- and hot-water connections. 42556 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Denial of the interim waiver would Federal Energy Regulatory TU Electric requests an effective date adversely affect Miele’s home office, which Commission of August 5, 1995, and accordingly, employs 58 employees, its 175 independent seeks waiver of the Commission’s notice service agencies, 400 independent retailers, [Project No. 10625±003 Washington] 17 independent sales representatives and 4 requirements. Copies of the filing were served upon all parties of record. regional distributors that carry the Miele Kittitas Reclamation District; product line throughout the country. Availability of Final Environmental Comment date: August 25, 1995, in Public Policy Merits. The public policy accordance with Standard Paragraph E benefits of encouraging business success and Assessment at the end of this notice. fostering innovation in clothes washer design August 10, 1995 are additional reasons for prompt approval of 2. Catex Vitol Electric, L.L.C. the requested interim waiver. In accordance with the National Miele clothes washers are innovative and Environmental Policy Act of 1969 and [Docket No. ER94–155–009] beneficial products. the Federal Energy Regulatory Miele’s water-hearing clothes washers use Commission’s (Commission’s) Take notice that on August 3, 1995, less than one-third of the water for washing, Regulations, 18 CFR Part 380 (Order No. Catex Vitol Electric, L.L.C. filed certain compared to most clothes washers. This 386, 52 FR 47897), the Office of information as required by the means much less energy for heating wash Hydropower Licensing has reviewed the Commission’s January 14, 1994, order in water. application for minor license for the Docket No. ER94–155–009. Copies of It also means a substantial reduction in proposed Taneum Chute Hydroelectric Catex Vitol Electric, L.L.C.’s washing chemicals introduced into the informational filing are on file with the environment. Miele’s water heating clothes Project, to be located on the Bureau of washers are designed to efficiently extract Reclamation’s South Branch Canal in Commission and are available for public more water from wet clothes by a high speed Kittitas County, near Ellensburg, inspection. spin cycle, up to 1600 RPM. Such water Washington, and has prepared a final 3. Direct Electric Inc. extraction is many times more energy Environmental Assessment (EA) for the efficient than drying the same amount of project. [Docket No. ER94–1161–005] water. This innovation in clothes washer In the EA, the Commission’s staff has Take notice that on August 2, 1995, design does not affect the test method for analyzed the project and has concluded clothes washers, but does result in increased Direct Electric Inc. filed certain that approval of the proposed project, energy savings. These are additional reasons information as required by the why the requested interim waive should with appropriate environmental protection and enhancement measures, Commission’s July 18, 1994, order in receive prompt approval. Docket No. ER94–968–000. Copies of In that regard, the basic purpose of the would not be a major federal action Energy Policy and Conservation Act, as significantly affecting the quality of the Direct Electric Inc.’s informational filing amended by the National Appliance Energy human environment. are on file with the Commission and are Conservation Act, is to foster purchase of Copies of the EA are available for available for public inspection. energy efficient appliances, not to hinder review in the Public Reference Branch, 4. Vesta Energy Alternatives Company such purchases. The granting of the waiver Room 3104, of the Commission’s offices and interim waiver will promote this policy [Docket No. ER94–1168–005] and will result in increased energy savings. at 941 North Capitol Street, N.E., Furthermore, continued employment Washington, D.C. 20426. Take notice that on July 25, 1995, creation and ongoing investments in Miele’s Linwood A. Watson, Jr., Vesta Energy Alternatives Company marketing, sales and service activities will be Acting Secretary. tendered for filing certain information fostered by approval of the requested interim [FR Doc. 95–20223 Filed 8–15–95; 8:45 am] as required by the Commission’s letter waiver. Conversely, denial would harm the BILLING CODE 6717±01±M order dated July 8, 1994. Copies of the company and would be anticompetitive. And, it would be unjust to grant interim informational filing are on file with the waivers and waivers to Asko and New Commission and are available for public Harmony but deny them to Miele. [Docket No. EL79±8±007, et al.] inspection. In the period between interim waiver and waiver, only a relatively small number of Texas Utilities Electric Company, et al.; 5. Ashton Energy Corporation Electric Rate and Corporate Regulation water-heating clothes washers will be sold by [Docket No. ER94–1246–004] Miele. Any difference between the test Filings method approved for interim waiver and that Take notice that on July 21, 1995, finally approved for the Waiver will have August 10, 1995. Ashton Energy Corporation tendered for only minimal impact on energy consumption Take notice that the following filings filing certain information as required by or consumer decisions. have been made with the Commission: the Commission’s letter order dated * * * * * 1. Texas Utilities Electric Company August 10, 1994. Copies of the Thank you for your timely attention to this informational filing are on file with the request for interim waiver and waiver. [Docket No. EL79–8–007] Commission and are available for public We hereby certify that all clothes washer Take notice that on August 4, 1995, inspection. manufacturers of domestically-marketed Texas Utilities Electric Company (TU units known to Miele Appliances, Inc. have Electric) tendered for filing a 6. KCS Power Marketing, Inc. been notified by letter of this application, copies of which are attached as Appendix 2 compliance filing in the above- [Docket No. ER95–208–002] hereto. referenced docket. The compliance Take notice that on August 7, 1995, Sincerely, filing consists of the following: (1) an executed Facilities Charge Agreement KCS Power Marketing, Inc. tendered for Nick Ord, among TU Electric, Southwestern filing certain information as required by Vice President and General Manager, Miele Electric Power Company, Central Power the Commission’s letter order dated Appliances, Inc. and Light Company, and Houston March 2, 1995. Copies of the Attachments Lighting & Power Company; and (2) cost informational filing are on file with the [FR Doc. 95–20282 Filed 8–15–95; 8:45 am] support for the rates set forth in the Commission and are available for public BILLING CODE 6450±01±M agreement. inspection. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42557 7. Koch Power Services, Inc. considered by the Commission in blanket certificate issued in Docket No. [Docket No. ER95–218–002] determining the appropriate action to be CP82–407–000 pursuant to Section 7 of taken, but will not serve to make the Natural Gas Act, all as more fully set Take notice that on July 31, 1995, protestants parties to the proceeding. forth in the request on file with the Koch Power Services, Inc. tendered for Any person wishing to become a party Commission and open to public filing certain information as required by must file a motion to intervene. Copies inspection. the Commission’s letter order dated of this filing are on file with the Texas Gas indicates that it will January 4, 1995. Copies of the Commission and are available for public provide a tap, riser and associated informational filing are on file with the inspection. valves and fittings, within its existing Commission and are available for public right-of-way at Texas Gas’ Slaughters- inspection. Linwood A. Watson, Jr., Acting Secretary. Nortonville 10-inch Line near Barnsley, in Hopkins County. It has been averred 8. Portland General Electric Company [FR Doc. 95–20250 Filed 8–15–95; 8:45 am] that this proposal will enable Western to [Docket No. ER95–734–000] BILLING CODE 6717±01±P provide, up to a maximum daily Take notice that on July 26, 1995, quantity of 55 MMBtu, of natural gas Portland General Electric Company [Docket No. CP95±661±000, et al.] service to the new school being tendered for filing an amendment in the constructed by the Hopkins Board of above-referenced docket. Texas Eastern Transmission Education. It is stated that the school Comment date: August 25, 1995, in Corporation, et al.; Natural Gas will use the natural gas for heating and accordance with Standard Paragraph E Certificate Filings cooking. It has been further stated that at the end of this notice. Western will serve the new delivery tap August 10, 1995. with natural gas transported pursuant to 9. IEP Power Marketing, LLC Take notice that the following filings its current Firm No-Notice have been made with the Commission: [Docket No. ER95–802–001] Transportation Agreement with Texas Take notice that on August 7, 1995, 1. Texas Eastern Transmission Gas dated November 1, 1993, within the IEP Power Marketing, LLC tendered for Corporation existing contract entitlements. filing certain information as required by It is estimated that the new delivery the Commission’s letter order dated May [Docket No. CP95–661–000] point will cost $2,500. It is stated that 11, 1995. Copies of the informational Take notice that on August 4, 1995 Western will reimburse Texas Gas for filing are on file with the Commission Texas Eastern Transmission Corporation the cost of the proposed delivery and are available for public inspection. (‘‘Texas Eastern’’), 5400 Westheimer facility. Court, Houston, Texas 77056–5310, Comment date: September 25, 1995, 10. Western Regional Transmission filed in Docket No. CP95–661–000 an in accordance with Standard Paragraph Association abbreviated application pursuant to G at the end of this notice. [Docket No. ER95–1211–001] Section 7(b) of the Natural Gas Act for 3. El Paso Natural Gas Company Take notice that on July 24, 1995, permission and approval to abandon by Western Regional Transmission sale, to Texaco Pipeline Inc. (‘‘Texaco’’), [Docket No. CP95–663–000] Association tendered for filing approximately 37.48 miles of 20-inch Take notice that on August 4, 1995, El additional information in the above- pipeline (‘‘Line 40–E’’) and the Paso Natural Gas Company (El Paso), referenced docket. associated scraper traps for $7,000,000. Post Office Box 1492, El Paso, Texas Comment date: August 25, 1995, in Texas Eastern also requests to abandon 79978, filed in Docket No. CP95–663– accordance with Standard Paragraph E the Point Au Chien compressor station, 000 an application pursuant to Section at the end of this notice. certain laterals, meter stations and 7(b) of the Natural Gas Act for appurtenant facilities associated with permission and approval to abandon a 11. National Fuel Gas Distribution such Line 40–E, all in the Lafourche and production-area gas exchange service Corporation Terrebonne Parishes, Louisiana, all as with Tenneco Oil Company (Tenneco), [Docket No. ER95–1374–000] more fully set forth in the application all as more fully set forth in the Take notice that on August 4, 1995, which is on file with the Commission application on file with the Commission National Fuel Gas Distribution and open to public inspection. and open to public inspection. Corporation tendered for filing an Comment date: September 1, 1995, in El Paso proposes to abandon the amendment in the above-referenced accordance with Standard Paragraph F service which was authorized by the docket. at the end of this notice. Commission in Docket No. CP83–246– 000. It is stated that El Paso was Comment date: August 25, 1995, in 2. Texas Gas Transmission Corporation accordance with Standard Paragraph E authorized to exchange gas with at the end of this notice. [Docket No. CP95–662–000] Tenneco, later replaced on the exchange Take notice that on August 4, 1995, agreement by Amoco Production Standard Paragraph Texas Gas Transmission Corporation Company (Amoco), under the terms of E. Any person desiring to be heard or (Texas Gas), P.O. Box 1160, Owensboro, a gas exchange agreement dated to protest said filing should file a Kentucky 42302, filed in Docket No. November 24, 1980, on file with the motion to intervene or protest with the CP95–662–000 a request pursuant to Commission as El Paso’s Special Rate Federal Energy Regulatory Commission, §§ 157.205 and 157.211 of the Schedule X–59 of El Paso’s FERC Gas 825 North Capitol Street, N.E., Commission’s Regulations under the Tariff, Third Revised Volume No. 2. It Washington, D.C. 20426, in accordance Natural Gas Act (18 CFR 157.205 and is stated that El Paso was authorized to with Rules 211 and 214 of the 157.211) for authorization to add a new receive for Tenneco’s account up to Commission’s Rules of Practice and delivery point in Hopkins County, 25,000 Mcf of natural gas per day in San Procedure (18 CFR 385.211 and 18 CFR Kentucky, to serve a customer of Juan and Rio Arriba Counties, New 385.214). All such motions or protests Western Kentucky Gas Company Mexico. It is stated that El Paso would should be filed on or before the (Western), a local distribution company. concurrently cause to be delivered comment date. Protests will be Texas Gas makes such request, under its equivalent volumes, less 10 percent for 42558 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices fuel, shrinkage and other losses, to Comment date: September 25, 1995, for filing a protest, the instant request Tenneco at two delivery points in in accordance with Standard Paragraph shall be treated as an application for Terrebonne Parish, Louisiana, and G at the end of this notice. authorization pursuant to Section 7 of Waller County, Texas. It is explained the Natural Gas Act. Standard Paragraphs that the exchange agreement expired Linwood A. Watson, Jr., under its own terms July 1, 1990, and F. Any person desiring to be heard or Acting Secretary. to make any protest with reference to the parties agree that the service is no [FR Doc. 95–20249 Filed 8–15–95; 8:45 am] said application should on or before the longer needed. It is asserted that there BILLING CODE 6717±01±P are no imbalances. It is further asserted comment date, file with the Federal that El Paso can render any requested Energy Regulatory Commission, transportation service under its blanket Washington, D.C. 20426, a motion to [Project No. 11435±001 West Virginia] transportation certificate issued in intervene or a protest in accordance Hildebrand Hydro Associates; Docket No. CP88–433–000. El Paso with the requirements of the Surrender of Preliminary Permit states that it does not intend to abandon Commission’s Rules of Practice and Procedure (18 CFR 385.214 or 385.211) any facilities and that the proposed August 10, 1995. and the Regulations under the Natural abandonment would not result in any Take notice that the Hildebrand Gas Act (18 CFR 157.10). All protests interruption in or termination of firm Hydro Associates, permittee for the filed with the Commission will be service to its customers. Hildebrand Hydroelectric Project No. considered by it in determining the 11435, located on the Monongahela Comment date: August 31, 1995, in appropriate action to be taken but will River, Monogalia County, West Virginia, accordance with Standard Paragraph F not serve to make the protestants parties at the end of this notice. to the proceeding. Any person wishing has requested that its preliminary permit be terminated. The preliminary 4. Pacific Gas Transmission Company to become a party to a proceeding or to participate as a party in any hearing permit was issued on January 27, 1994, [Docket No. CP95–666–000] therein must file a motion to intervene and would have expired on December in accordance with the Commission’s 31, 1996. The permittee states that the Take notice that on August 7, 1995, project would be economically Pacific Gas Transmission Company Rules. Take further notice that, pursuant to infeasible. (PGT), 160 Spear Street, San Francisco, The permitee filed the request on July CA 94105, filed in Docket No. CP95– the authority contained in and subject to the jurisdiction conferred upon the 25, 1995, and the preliminary permit for 666–000 a request pursuant to Sections Project No. 11435 shall remain in effect 157.205 and 157.211 of the Federal Energy Regulatory Commission by Sections 7 and 15 of the Natural Gas through the thirtieth day after issuance Commission’s Regulations under the of this notice unless that day is a Natural Gas Act (18 CFR 157.205 and Act and the Commission’s Rules of Practice and Procedure, a hearing will Saturday, Sunday or holiday as 157.211) for authorization to install a be held without further notice before the described in 18 CFR 385.2007, in which new tap and meter near milepost 6 of Commission or its designee on this case the permit shall remain in effect PGT’s Coyote Springs Lateral, in application if no motion to intervene is through the first business day following Willamette County, Oregon, for delivery filed within the time required herein, if that day. New applications involving of gas to Cascade Specialties, Inc. PGT the Commission on its own review of this project site, to the extent provided requests the authorization under its the matter finds that a grant of the for under 18 CFR Part 4, may be filed blanket certificate issued in Docket No. certificate and/or permission and on the next business day. CP82–530–000, pursuant to Section 7(c) approval for the proposed abandonment Linwood A. Watson, Jr., of the Natural Gas Act, all as more fully are required by the public convenience Acting Secretary. set forth in the request which is on file and necessity. If a motion for leave to [FR Doc. 95–20224 Filed 8–15–95; 8:45 am] with the Commission and open to intervene is timely filed, or if the BILLING CODE 6717±01±M public inspection. Commission on its own motion believes PGT states that the quantity of gas to that a formal hearing is required, further [Project No. 11456±001 Pennsylvania] be delivered through the facilities is up notice of such hearing will be duly to 1,000 MMBtu of gas per day. PGT given. Point Marion Hydro Associates; will provide service to this facility on an Under the procedure herein provided Surrender of Preliminary Permit interruptible basis under the applicable for, unless otherwise advised, it will be rate schedule for service on the Coyote unnecessary for applicant to appear or August 10, 1995. Springs Lateral. PGT asserts that the be represented at the hearing. Take notice that the Point Marion proposed service will have no effect on G. Any person or the Commission’s Hydro Associates, permittee for the PGT’s peak day or annual deliveries. staff may, within 45 days after issuance Point Marion Project No. 11456, located PGT states that it does not anticipate of the instant notice by the Commission, on the Monongahela River in Fayette any significant environmental impact file pursuant to Rule 214 of the County, Pennsylvania, has requested from the proposed activity. Commission’s Procedural Rules (18 CFR that its preliminary permit be Additionally, PGT states that the 385.214) a motion to intervene or notice terminated. The preliminary permit was proposed meter facility will be sited of intervention and pursuant to issued on June 30, 1994, and would adjacent to PGT’s newly constructed § 157.205 of the Regulations under the have expired on May 31, 1997. The Coyote Springs Lateral and the customer Natural Gas Act (18 CFR 157.205) a permittee states that the project would has received a county site permit for protest to the request. If no protest is be economically infeasible. construction on the premises. Therefore, filed within the time allowed therefor, The permittee filed the request on PGT asserts that it does not believe that the proposed activity shall be deemed to July 25, 1995, and the preliminary any further state authorization is be authorized effective the day after the permit for Project No. 11456 shall necessary and is in the process of time allowed for filing a protest. If a remain in effect through the thirtieth confirming this fact with the protest is filed and not withdrawn day after issuance of this notice unless appropriate agencies. within 30 days after the time allowed that day is a Saturday, Sunday or Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42559 holiday as described in 18 CFR SWPA–32, on August 8, 1995, which authority to confirm, approve and place 385.2007, in which case the permit shall extends the existing Integrated System into effect on an interim basis power remain in effect through the first rates for one year beginning October 1, and transmission rates of the Power business day following that day. New 1995. Marketing Administrations. This rate applications involving this project site, Issued at Washington, D.C., on August 8, order is issued by the Deputy Secretary to the extent provided for under 18 CFR 1995. pursuant to said Amendment to Part 4, may be filed on the next business Bill. White, Delegation Order No. 0204–108. day. This is an interim rate extension. It is Deputy Secretary. Linwood A. Watson, Jr., made pursuant to the authorities as (Deputy Secretary of Energy) Acting Secretary. implemented in 10 CFR 903.22(h) and [FR Doc. 95–20225 Filed 8–15–95; 8:45 am] Order Approving Extension of Power 903.23(a)(3). BILLING CODE 6717±01±M Rates on an Interim Basis Background In the matter of: Southwestern Power Southwestern Power Administration Administration—Integrated System Rates. Southwestern Power Administration (Southwestern) currently has marketing Rate Order No. SWPA–32. responsibility for 2.2 million kilowatts August 8, 1995. Integrated System Power Rates; Notice of power from 24 multiple-purpose Pursuant to Sections 302(a) and reservoir projects, with power facilities of Order Approving an Extension of 301(b) of the Department of Energy Power Rates on an Interim Basis constructed and operated by the U.S. Organization Act, Public Law 95–91, the Army Corps of Engineers, generally in AGENCY: Southwestern Power functions of the Secretary of the Interior all or portions of the states of Arkansas, Administration, DOE. and the Federal Power Commission Kansas, Louisiana, Missouri, Oklahoma ACTION: Notice of an Extension of Power under Section 5 of the Flood Control and Texas. The Integrated System, Rates-Integrated System. Act of 1944, 16 U.S.C. 825s, for the composed of 22 of the projects, is Southwestern Power Administration interconnected through a transmission SUMMARY: The Deputy Secretary of were transferred to and vested in the system presently consisting of 138- and Energy, acting under Amendment No. 3 Secretary of Energy. By Delegation 161-kV high-voltage transmission lines, to Delegation Order No. 0204–108, Order No. 0204–108, effective December 69-kV transmission lines, and numerous dated November 10, 1993, 58 FR 59717, 14, 1983, 48 FR 55664, the Secretary of bulk power substations and switching and pursuant to the implementation Energy delegated to the Deputy stations. In addition, contractual authorities in 10 CFR 903.22(h) and Secretary of Energy on a non-exclusive transmission arrangements provide for 903.23(a)(3), has approved Rate Order basis the authority to confirm, approve integration of other projects into the No. SWPA–32 which extends the and place into effect on an interim basis system. existing power rates for the Integrated power and transmission rates, and The remaining two projects, Sam System. This is an interim rate action delegated to the Federal Energy Rayburn Dam and Robert Douglas effective October 1, 1995, and extending Regulatory Commission (FERC) on an Willis, are isolated hydraulically and for a period of one year through exclusive basis the authority to confirm, electrically from the Southwestern September 30, 1996. approve and place in effect on a final transmission system, and their power is FOR FURTHER INFORMATION CONTACT: basis, or to disapprove power and marketed under separate contracts George C. Grisaffe, Assistant transmission rates. Amendment No. 1 to through which the customer purchases Administrator, Office of Administration Delegation Order No. 0204–108, the entire power output of the project at and Rates, Southwestern Power effective May 30, 1986, 51 FR 19744, the dam. A separate Power Repayment Administration, Department of Energy, revised the delegation of authority to Study (PRS) is prepared for each P.O. Box 1619, Tulsa, Oklahoma 74101, confirm, approve and place into effect isolated project, and each has a special (918) 581–7419. on an interim basis power and rate which is not a part of this study. SUPPLEMENTARY INFORMATION: The transmission rates by delegating such The existing rate schedules for the existing rate schedules for the Integrated authority to the Under Secretary of Integrated System were confirmed and System were approved on a final basis Energy rather than the Deputy Secretary approved on a final basis by the FERC by the Federal Energy Regulatory of Energy. This delegation was on September 18, 1991 for the period Commission on September 18, 1991, for reassigned to the Deputy Secretary of October 1, 1990 through September 30, the period ending September 30, 1994. Energy by Department of Energy (DOE) 1994. These rates were extended on an These rates were extended on an Notice 1110.29, dated October 27, 1988, interim basis (through September 30, interim basis (through September 30, and clarified by Secretary of Energy 1995) by the Deputy Secretary of Energy 1995) by the Deputy Secretary of Energy Notice SEN–10–89, dated August 3, on August 24, 1994. The FY 1995 on August 24, 1994. On June 15, 1995, 1989, and subsequent revisions. By Integrated System PRSs indicate the the Southwestern Power Administration Amendment No. 2 to Delegation Order need for a rate adjustment of $1,008,285 (Southwestern) published notice in the No. 0204–108, effective August 23, annually, or 1.07 percent. Federal Register, 60 FR 31464, of its 1991, 56 FR 41835, the Secretary of the Pursuant to implementing authority intention to seek a one-year extension of Department of Energy revised in 10 CFR 903(h) and 903.23(a)(3), the the existing power rate for the Integrated Delegation Order No. 0204–108 to Deputy Secretary of Energy may extend System and provided for a 15-day delegate to the Assistant Secretary, a FERC-approved rate on an interim comment period. No comments were Conservation and Renewable Energy, basis. The Administrator, Southwestern, received. 10 CFR 903.22(h) and the authority which was previously published notice in the Federal Register 903.23(a)(3) provide implementation delegated to the Deputy Secretary in on June 15, 1995, 60 FR 31464, authority for such interim extension to that Delegation Order. By Amendment announcing a 15-day period for public the Deputy Secretary. No. 3 to Delegation Order No. 0204–108, review and comment concerning the Following review of Southwestern’s effective November 10, 1993, the proposed interim rate extension. In proposal within the Department of Secretary of Energy redelegated to the addition, informal meetings were held Energy, I approved, Rate Order No. Deputy Secretary of Energy, the with customer representatives in April 42560 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices and May 1995. Written comments were Issued at Washington, DC, on August 8, Parkshore Drive, Folsom, CA 95630, accepted through June 30, 1995. No 1995. (916) 649–4418 comments on the proposed interim Bill White, Mr. Robert Fullerton, Acting Director, extension were received. Deputy Secretary. Division of Power Marketing, Western Area Power Administration, P.O. Box Discussion [FR Doc. 95–20283 Filed 8–15–95; 8:45 am] BILLING CODE 6450±01±P 3402, Golden, CO 80401–0098, (303) The existing Integrated System rates 275–1610 are based on the FY 1990 PRS. PRSs Mr. Joel Bladow, Assistant have been completed on the Integrated Western Area Power Administration Administrator for Washington System each year since approval of the Liaison, Power Marketing Liaison existing rates. Rate changes identified Notice of Amended Rate Schedule Office, Room 8G–027, Forrestal by the PRSs since that period have Building, 1000 Independence Avenue AGENCY: Western Area Power indicated the need for minimal rate SW., Washington, DC 20585–0001, Administration, DOE. increases or decreases. Since the (202) 586–5581 ACTION: Notice of Amended Rate revenue changes reflected by the PRSs SUPPLEMENTARY INFORMATION: The RAC Schedule CV–F7. were within the plus-or-minus two compares projected net revenue with percent Rate Adjustment Threshold SUMMARY: Notice is given of the actual net revenue for each fiscal year. established by Southwestern’s confirmation and approval by the If the net difference is positive, a RAC Administrator on June 23, 1987, these Deputy Secretary of the Department of credit is applied to the customers’ rate adjustments were deferred in the Energy of Amended Rate Schedule CV– power bills during the next January 1 to best interest of the government and F7 from the Central Valley Project (CVP) September 30 period. If the net provided for the next year’s PRS to of the Western Area Power difference is negative, a RAC surcharge determine the appropriate level of Administration (Western) into effect on is applied to customers’ power bills in revenues needed for the next rate an interim basis. The interim Amended an amount equal to any deficit in period. Rate Schedule CV–F7, will remain in repayment of annual expenses plus a The FY 1995 PRS indicates the need effect on an interim basis until the minimum investment payment equal to for a rate increase of 1.07 percent. As Federal Energy Regulatory Commission the lesser of 1 percent of unpaid has been the case since the existing rates (FERC) confirms, approves, and places it investment or projected investment were approved, the FY 1995 rate into effect on a final basis or until it is payment. The maximum allocation of a adjustment needed falls within replaced by another rate schedule. RAC credit or surcharge on customers’ Southwestern’s plus-or-minus two Rate Schedule CV–F7, Schedule for power bills is $20 million annually. percent Rate Adjustment Threshold and Rates for Commercial Firm-Power In February 1992, Western and the would normally be deferred. However, Service under Rate Order No. WAPA– PG&E entered into a settlement the existing rates expire on September 59, was approved by FERC on agreement (Settlement) which provided 30, 1995. Consequently, Southwestern September 22, 1993, under FERC Docket for annual reconciliation of estimated proposes to extend the existing rates for No. EF93–5011–000. The rates were energy and capacity rates based on a one-year period ending September 30, placed in effect for the period beginning actual PG&E thermal costs. To date, the 1996, on an interim basis under the May 1, 1993, through April 30, 1998. Settlement has resulted in refunds to implementation authorities noted in 10 The methodology for the revenue Western which are applied as credits CFR 903.22(h) and 903.23(a)(3). adjustment clause (RAC) was included against amounts owed by Western to Southwestern continues to make in Rate Schedule CV–F7 and included PG&E. The application of the credits significant progress toward repayment provisions for a $20 million maximum reduces Western’s purchase power of the Federal investment in the allocation of the RAC credit or expense which may increase Western’s Integrated System. Through FY 1994, surcharge. The Amended Rate Schedule net revenue. Since the current RAC status of repayment for the Integrated CV–F7 modifies the maximum methodology provides for a $20 million System was $319,846,125, which allocation of the RAC credit of $20 cap, Western’s customers may not represents approximately 33 percent of million by the amount of the Pacific Gas realize the full benefit of the Settlement the $982,356,193 Federal investment for and Electric Company (PG&E) refund amounts. the Integrated System. The status has credit applied to the Western power Discussions on the proposed increased almost 63 percent since the bills for the fiscal year. The $20 million amendment to the RAC methodology existing rates were placed in effect. maximum allocation for the RAC were initiated at a customer meeting Information regarding this rate surcharge remains unchanged, as do all held on February 14, 1995. Western extension, including studies and other other provisions of CVP Rate Schedule received favorable comments following supporting material, is available for CV–F7. the meeting, and pursued development public review and comment in the of the proposed amendment. DATES: Amended Rate Schedule CV–F7 offices of Southwestern Power Representatives from the CVP customer will be placed into effect on an interim Administration, One West Third Street, base reviewed and supported the basis prior to October 1, 1995, and will Tulsa, Oklahoma 74101. amendment. On April 10, 1995, Western be in effect until FERC confirms, sent a letter to all CVP customers Order approves, and places the rate schedule requesting written comments on the in effect on a final basis through April In view of the foregoing and pursuant proposed amendment and establishing a 30, 1998, the remaining time period of to the authority delegated to me by the comment period through May 15, 1995. the current Rate Schedule CV–F7, or Secretary of Energy, I hereby extend on Western received three written until the rate schedule is superseded. an interim basis, for the period of one comments during the comment period. year, effective October 1, 1995, the FOR FURTHER INFORMATION CONTACT: All comments supported the interim current FERC-approved Integrated Mr. James C. Feider, Area Manager, amendment, with one comment System Rates for the sale of power and Sacramento Area Manager, Western requesting that future savings resulting energy. Area Power Administration, 114 from changes in Western’s purchase Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42561 power contracts also be included in the (Western); (2) the authority to confirm, RAC credit is applied to the customers’ RAC methodology. Western is planning approve, and place such rates into effect power bills during the next January 1 to a rate adjustment to accommodate any on an interim basis to the Deputy September 30 period. If the difference is change in purchase power contracts. Secretary; and (3) the authority to negative, a RAC surcharge is applied to The intent of amending the RAC confirm, approve, and place into effect the customers’ power bills in an amount would allow the net revenue, resulting on a final basis, to remand, or to equal to any deficit in repayment of from the PG&E/Western rate disapprove such rates to the Federal annual expenses plus a minimum reconciliation, to be passed on to Energy Regulatory Commission (FERC). investment payment equal to the lesser Western’s customers as a RAC credit if Existing DOE procedures for public of 1 percent of the unpaid investment or there is no impact on CVP projected participation in power rate adjustments projected investment payment. Under repayment. The extent of the are located at 10 CFR Part 903. Rate Schedule CV–F7, the maximum amendment would change the allocation for RAC credits or surcharges Acronyms and Definitions maximum allocation of the RAC credit is $20 million. of $20 million by the amount of the As used in this rate order, the Basis for Amendment to Current Rate PG&E refund credit applied to the following acronyms and definitions Schedule CV–F7 in February 1992, Western power bills for the fiscal year. apply: Western and the PG&E entered into a The current $20 million maximum CVP: Central Valley Project. settlement agreement (Settlement) allocation for the RAC surcharge will DOE: U. S. Department of Energy. which provided for annual not be changed. FERC: Federal Energy Regulatory reconciliation of estimated energy and The RAC amendment does not change Commission. capacity rates based on actual PG&E the rates, power repayment study, or FY: Fiscal year. thermal costs. To date, the Settlement any other documentation filed with the Net Revenue: Revenue remaining after has resulted in refunds to Western original Rate Order No. WAPA–59. paying all annual expenses. which are applied as credits against Confirmation, approval, and PG&E: Pacific Gas and Electric amounts owed by Western to PG&E. The placement of Amended Rate Schedule Company. application of the credits reduces CV–F7 into effect on an interim basis, is RAC: Revenue Adjustment Clause. Western’s purchase power expense issued, and the Amended Rate Schedule Rate Schedule CV–F7: The current rate which may increase Western’s net CV–F7 will be submitted promptly to schedule for commercial firm power revenue. Since the current RAC FERC for confirmation and approval on service, approved by FERC on methodology provides for a $20 million a final basis. September 22, 1993, under FERC cap, Western’s customers may not Docket No. EF93–5011–000. Issued in Washington, DC, August 8, 1995. realize the full benefit of the Settlement Secretary: Secretary of Energy. amounts. Bill White, Western: Western Area Power Deputy Secretary. Administration. The intent of amending the RAC would allow the net revenue, resulting Order Confirming, Approving, and Effective Date from the PG&E/Western rate Placing the Central Valley Project The Amended Rate Schedule CV–F7 reconciliation, to be passed on to Amended Rate Schedule CV–F7 Into Western’s customers as a RAC credit if Effect on an Interim Basis will become effective on an interim basis prior to October 1, 1995, and will there is no impact on CVP projected In the matter of: Western Area Power be in effect pending FERC’s approval on repayment. The extent of the Administration Amended Rate Schedule CV– a final basis for a 21⁄2-year period, the amendment would change the F7, Central Valley Project. remaining effective period for Rate maximum allocation of the RAC credit August 8, 1995. Schedule CV–F7, or until superseded. of $20 million by the amount of the The original Rate Schedule CV–F7, for PG&E refund credit applied to the commercial firm power rates, was Public Notice and Comment Western power bills for the fiscal year. established pursuant to section 302(a) of The Procedures for Public The current $20 million maximum the Department of Energy (DOE) Participation in Power and allocation for the RAC surcharge will Organization Act, 42 U.S.C. 7101 et seq., Transmission Rate Adjustments and not be changed. through which the power marketing Extensions, 10 CFR Part 903, have been Comments functions of the Secretary of the Interior followed by Western in the and the Bureau of Reclamation development of this amended rate During the 30-day comment period, (Reclamation) under the Reclamation schedule. The following summarizes the Western received three written Act of 1902, 43 U.S.C. 371 et seq., as steps Western took to ensure comments regarding the proposed amended and supplemented by involvement of interested parties in the change in the RAC. All three subsequent enactments, particularly rate process: commentors agreed with the proposal, section 9(c) of the Reclamation Project 1. On February 14, 1995, Western with one commentor additionally Act of 1939, 43 U.S.C. 485h(c), and proposed the amendment to the RAC requesting Western add any savings other acts specifically applicable to the methodology at a customer meeting. from changes in Western’s purchase project system involved were 2. On April 10, 1995, Western sent a power contracts. Western is planning a transferred to and vested in the letter to all CVP customers requesting rate adjustment to accommodate any Secretary of Energy (Secretary). written comments on the proposed change in purchase power contracts. By Amendment No. 3 to Delegation amendment and established a comment Written comments were received from Order No. 0204–108, published period through May 15, 1995. the following sources: November 10, 1993 (58 FR 59716), the Secretary delegated (1) the authority to Discussion Bay Area Rapid Transit (California) develop long-term power and The RAC, included under Rate Northern California Power Agency transmission rates on a nonexclusive Schedule CV–F7, compares projected (California) basis to the Administrator of the net revenue with actual net revenue for Sacramento Municipal Utility District Western Area Power Administration a FY. If the net difference is positive, a (California) 42562 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Environmental Evaluation California 95825; Western Area Power Issued in Washington, DC, August 8, 1995. In compliance with the National Administration, Division of Power Bill White, Environmental Policy Act of 1969 (42 Marketing, PO Box 3402, Golden, Deputy Secretary. U.S.C. 4321 et seq.); Council on Colorado 80401; and Power Marketing Environmental Quality Regulations (40 Liaison Office, Office of the Assistant Amended Rate Schedule CV–F7 CFR parts 1500 through 1508); and DOE Administrator for Washington Liaison, (Supersedes Schedule CV–F7) NEPA Regulations (10 CFR part 1021), Room 8G–061, Forrestal Building, 1000 Western has determined that this action Independence Avenue SW., Central Valley Project; Schedule of is categorically excluded from the Washington, DC 20585. Rates for Commercial Firm-power Service preparation of an environmental Submission to Federal Energy assessment or an environmental impact Regulatory Commission Effective statement. Amended Rate Schedule CV–F7 October 1, 1995. Executive Order 12866 herein confirmed, approved, and placed DOE has determined that this is not into effect on an interim basis, together Available a significant regulatory action because it with supporting documents, will be Within the marketing area served by does not meet the criteria of Executive submitted to FERC for confirmation and Order 12866, 58 FR 51735. Western has approval on a final basis. the Sacramento Area Office. an exemption from centralized Order Applicable regulatory review under Executive Order 12866; accordingly, no clearance In view of the foregoing and pursuant To the commercial firm-power of this notice by the Office of to the authority delegated to me by the customers for general power service Management and Budget is required. Secretary of Energy, I confirm and supplied through one meter, at one approve on an interim basis, effective point of delivery, unless otherwise Availability of Information prior to October 1, 1995, Amended Rate provided by contract. All studies, comments, letters, Schedule CV–F7 for the Central Valley memoranda, or other documents made Project. The amended rate schedule Character or kept by Western for the purpose of shall remain in effect on an interim Alternating current, 60 hertz, three- developing Amended Rate Schedule basis, pending the Federal Energy phase, delivered and metered at the CV–F7, are and will be made available Regulatory Commission confirmation voltages and points established by for inspection and copying at the and approval on a final basis, through contract. Sacramento Area Office, located at 1825 April 30, 1998, or until the rate Bell Street, Suite 105, Sacramento, schedule is superseded. Monthly Rates Period Capacity Energy 10/01/95±09/30/97 ...... $6.57/kW/month ...... Base: 17.73 mills/kWh. Tier: 34.70 mills/kWh. 10/01/97±04/30/98 ...... $7.16/kW/month ...... Base: 19.33 mills/kWh. Tier: 37.46 mills/kWh. Billing month; or (2) the contract rate of revenue and projected net revenue, delivery. Only power offered under this represented by the following formula: Demand: The rates listed above for Amended Rate Schedule CV-F7 will be capacity shall be the charge per kilowatt ANR > PNR; C = ANR ¥PNR used in the calculation of the load Where: (kW) of billing demand. The billing factor. demand is the highest 30-minute ANR = Actual Net Revenue integrated demand measured or Adjustments PNR = Projected Net Revenue scheduled during the month up to, but Billing for Unauthorized Overruns C = Credit not in excess of, the delivery obligation 2. If actual net revenue is less than the under the power sales contract. For each billing period in which there projected net revenue for the RAC is a contract violation involving an Energy: The rates listed above for calculation period, a revenue surcharge unauthorized overrun of the contractual energy shall be a charge per will be allocated during the RAC obligation for capacity and/or energy, kilowatthour (kWh) for all energy use adjustment period. such overrun shall be billed at 10 times up to, but not in excess of, the 2.1 If the actual net revenue is the applicable rates above. The energy maximum kWh obligation of the United negative, the surcharge will be equal to base rate will be used as the overrun the minimum investment payment plus States during the month as established rate for energy. under the power sales contract. the annual deficit, represented by the The energy base rate shall be applied For Revenue Adjustment following formula: to all energy sales below a 70-percent The following methodology shall be ANR < PNR and < O; S = MIP + AD monthly load factor. The energy tier rate used for the revenue adjustment clause Where: shall be applied to all energy sales at a (RAC) calculation: ANR = Actual Net Revenue 70-percent and higher monthly load 1. If the actual net revenue is greater PNR = Projected Net Revenue factor. The monthly load factor shall be than the projected net revenue for the MIP = Minimum Investment Payment calculated based on the lesser of the RAC calculation period, a revenue AD = Annual Deficit customer’s (1) maximum demand for the credit will be allocated during the RAC S = Surcharge month or, if a scheduled customer, the adjustment period. The credit will equal 2.2 If the actual net revenue is maximum scheduled demand for the the difference between the actual net positive, the surcharge will equal the Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42563 minimum investment payment less the during the period January 1, 1999, to the arithmetic mean of a customer’s actual net revenue, represented by the September 30, 1999. measured monthly average power factor following formula: and their measured onpeak power ANR < PNR and > 0; S = MIP ¥ ANR TABLE 1.Ð PROJECTED NET REVENUE factor, rounded to the nearest whole (if ANR > MIP, S = 0) AVAILABLE FOR INVESTMENT REPAY- percent with 0.5 percent or greater Where: MENT FOR REVENUE ADJUSTMENT rounded to the next higher percent. (b) The mean power factor will be ANR = Actual Net Revenue CLAUSE calculated at each customer’s point of PNR = Projected Net Revenue delivery. If a customer has multiple MIP = Minimum Investment Payment Period Projected net S = Surcharge revenue points of delivery, the power factor will be determined from totalized Provided, that if the actual net October 1, 1995±September information from the points of delivery. revenue is greater than the minimum 30, 1996 ...... $14,430,107 (c) No credit will be given for investment payment, the surcharge will October 1, 1996±September customers operating between 95 percent 30, 1997 ...... 1,051,664 be equal to zero. and 100 percent. 3. The maximum RAC credit October 1, 1997±September 30, 1998 ...... 9,595,452 (d) Customers that have a monthly allocation will equal $20 million plus peak demand less than or equal to 50 the amount of the Pacific Gas and For Transformer Losses kW will not be subject to the LPFC. Electric Company refund credit applied (e) The Contracting Officer may waive to Western power bills for the fiscal If delivery is made at transmission the LPFC for good cause in whole or in year. The maximum allocation for a voltage but metered on the low-voltage part. RAC surcharge shall not exceed $20 side of the substation, the meter million. readings will be increased to [FR Doc. 95–20284 Filed 8–15–95; 8:45 am] 4. The RAC credit or surcharge shall compensate for transformer losses as BILLING CODE 6450±01±P be allocated to each Central Valley provided for in the contract. Project (CVP) commercial firm-power customer based on the proportion of the For Power Factor ENVIRONMENTAL PROTECTION customer’s billed obligation to Western The customer will be required to AGENCY for CVP commercial firm capacity and maintain a power factor at all points of [FRL±5278±1] energy to the total billed obligation for measurement between 95-percent all CVP commercial firm-power lagging and 95-percent leading. The low Border Environment Cooperation customers for CVP commercial firm power factor charge (LPFC) will be Commission, CD. Juarez, Chihuahua; capacity and energy for the RAC calculated by multiplying the Notice of Public Meetings calculation period. customer’s maximum monthly demand 5. For purposes of the RAC by the kilovar (kVar)/kW rate for the The Border Environment Cooperation calculation, the following terms are customer’s mean power factor as Commission (BECC) cordially invites defined: provided in the following Table 2: you to attend the next two Public 5.1 Actual Net Revenue—The Meetings of the Board of Directors: Recorded Net Revenue. TABLE 2.ÐKVAR/KW RATE TABLE Public Meeting (Special) of the Board of 5.2 Annual Deficit—The amount the Directors Thursday, August 31, 1995, recorded annual expenses, including Power factor Rate 9:00 am–4:00 pm, Camino Real Hotel, El interest, exceed recorded annual Paso, Texas. 0.94 ...... 0.09 revenues. Proposed Agenda 5.3 Minimum Investment Payment— 0.93 ...... 0.17 1. Approval of Minutes from July 28, 1995 The lesser of 1 percent of the recorded 0.92 ...... 0.24 0.91 ...... 0.32 Public Meeting of the Board of Directors unpaid investment balance at the end of 0.90 ...... 0.39 2. Consideration of and Vote on the the prior FY that the RAC is being 0.89 ...... 0.46 Guidelines for Project Submission and calculated, or the projected net revenue. 0.88 ...... 0.53 Criteria for Certification 5.4 Projected Net Revenue—The 0.87 ...... 0.60 3. Briefing on Projects to be Considered for annual net revenue available for 0.86 ...... 0.66 Certification at the September 28, 1995 investment repayment projected in the 0.85 ...... 0.73 Public Meeting of the Board of Directors PRS for the rate case during the FY that 0.84 ...... 0.79 4. Comments by Public on Projects Proposed the RAC is being calculated (see Table 0.83 ...... 0.86 for Certification 5. Comments by Board of Directors and 1). 0.82 ...... 0.92 0.81 ...... 0.99 Advisory Council 5.5 RAC Adjustment Period—The 0.80 ...... 1.05 6. Adjournment period January 1 through September 30, 0.79 ...... 1.12 Public Meeting (Quarterly) of the Board of following the RAC calculation period 0.78 ...... 1.18 Directors, Thursday, September 28, 1995, when credits or surcharges will be 0.77 ...... 1.25 9:00 am–4:00 pm, Sheraton Hotel, applied to the power bills. 0.76 ...... 1.32 Brownsville, Texas. 5.6 RAC Calculation Period—The 0.75 and below ...... 1.38 last recorded FY (October 1 through Proposed Agenda September 30). A LPFC will be assessed when a 1. Approval of Minutes from August 31, 1995 5.7 Recorded Net Revenue—The customer’s power factor is less than 95 Public Meeting of the Board of Directors annual net revenue available for percent. 2. Briefing on Projects Proposed for (a) A charge of $2.50 per kVar will be Certification repayment recorded in the PRS for the 3. Comments by Public FY that the RAC is being calculated. assessed for every kVar required to raise 4. Consideration of Project Certification by 6. Subject to modification by a a customer’s power factor to 95 percent. Board of Directors superseding rate schedule, the final The calculated power factor used to 5. Review and Consideration of Technical RAC will be allocated to the customers determine if a charge will be assessed is Assistance Program 42564 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 6. Comments by Board of Directors and corn and soybeans to evaluate the epi-methylamino-4′ ′-deoxyavermectin Advisory Council control of annual and perennial grasses B1 benzoate on 147 acres of cole crops, 7. Adjournment and broadleaf weeds. The program is celery, and head lettuce to evaluate the The Board of Directors may consider authorized in the States of Arkansas, control of lepidopteran insects. The several projects for certification including: El Florida, Georgia, Hawaii, Illinois, program is authorized only in the States Paso, Texas Wastewater Reuse Project; Cd. Indiana, Iowa, Kansas, Kentucky, of Arizona, California, Colorado, Jua´rez, Chihuahua Wastewater Treatment Plants; City of Brawley, California Water Louisiana, Maryland, Michigan, Florida, Hawaii, Michigan, New Jersey, Treatment Plant; Piedras Negras, Coahuila, Minnesota, Missouri, Mississippi, New York, North Carolina, Municipal Solid Waste Landfill; Piedras Nebraska, New Jersey, New York, North Pennsylvania, and Texas. The Negras, Coahuila Municipal Wastewater Carolina, North Dakota, Ohio, experimental use permit is effective Treatment Plant; and Ensenada, Baja Pennsylvania, South Dakota, Tennessee, from May 11, 1995 to May 11, 1996. California Wastewater Treatment Plant. Texas, Virginia, and Wisconsin. The Temporary tolerances for residues of the Any member of the public interested in experimental use permit is effective active ingredient in or on cole crops, submitting written comments to the Board of from March 7, 1995 to March 7, 1996. celery, and head lettuce have been Directors on the projects proposed for This permit is issued with the limitation established. (George LaRocca, PM 13, certification should send written material to the BECC staff 15 days prior to the scheduled that all treated crops will be destroyed Rm. 204, CM #2, 703–305–6100, e-mail: public meetings. Anyone interested in or used for research purposes only. [email protected]) making a brief statement to the Board may do (Joanne Miller, PM 23, Rm. 237, CM #2, 707–EUP–133. Issuance. Rohm and so during the public meetings. 703–305–7830, e-mail: Haas Company, Independence Mall Should you have any questions or need [email protected]) West, Philadelphia, PA 19105. This additional information, please contact the 352–EUP–160. Issuance. E.I. duPont experimental use permit allows the use BECC Office: Blvd. Toma´s Fernandez No., de Nemours & Company, Agricultural of 320 pounds of the insecticide benzoic 7940 Ed. Torres Campestre, sexto piso; Cd. Products, Walkers Mill, Barley Mill acid-, 3,5-dimethyl-1-(1,1- Jua´rez, Chih. C.P. 23470 or P.O. Box 221648 Plaza, P.O. Box 80038, Wilmington, DE dimethylethyl)-2-(4- El Paso, TX 79913; Tel: (011–52–16) 29–23– 19880–0038. This experimental use ethylbenzoyl)hydrazide on 320 acres of 95; Fax: (011–52–16) 29–23–97. Both meetings are free and open to the permit allows the use of 225 pounds of spinach to evaluate the control of public. the herbicide methyl 2-[[[[[4- lepidopterous pests. The program is Tracy J. Williams, (dimethylamino)-6-(2,2,2- authorized only in the States of trifluoroethoxy)-1,3,5-triazin-2- Arkansas, California, Maryland, New Public Outreach Coordinator. yl]amino]carbonyl]amino]sulfonyl]-3- Jersey, New York, Oklahoma, Texas, and [FR Doc. 95–20231 Filed 8–15–95; 8:45 am] methylbenzoate on 6,000 acres of sugar Virginia. The experimental use permit is BILLING CODE 6560±50±P beets to evaluate the control of various effective from May 18, 1995 to May 18, weeds. The program is authorized only 1996. A temporary tolerance for [OPP±50809; FRL±4966±7] in the States of California, Colorado, residues of the active ingredient in or on Idaho, Michigan, Minnesota, Montana, spinach has been established. (Richard Issuance of Experimental Use Permits Nebraska, North Dakota, Ohio, Oregon, Keigwin, PM 10, Rm. 713, CM #2, 703– Texas, and Wyoming. The experimental 305–7618, e-mail: AGENCY: Environmental Protection use permit is effective from March 24, [email protected]) Agency (EPA). 1995 to September 30, 1997. Temporary 707–EUP–135. Issuance. Rohm and ACTION: Notice. tolerances for residues of the active Haas Company, Independence Mall ingredient in or on sugar beet tops and West, Philadelphia, PA 19105. This SUMMARY: EPA has granted experimental sugar beet roots have been established. experimental use permit allows the use use permits to the following applicants. (Robert Taylor, PM 25, Rm. 241, CM #2, of 4,480 pounds of the insecticide These permits are in accordance with, 703–305–6800, e-mail: benzoic acid-, 3,5-dimethyl-1-(1,1- and subject to, the provisions of 40 CFR [email protected]) dimethylethyl)-2-(4- part l72, which defines EPA procedures 279–EUP–135. Issuance. FMC ethylbenzoyl)hydrazide on 4,480 acres with respect to the use of pesticides for Corporation, Agricultural Chemical of cole crops and leafy vegetables experimental use purposes. Group, 1735 Market St., Philadelphia, (excluding spinach) to evaluate the FOR FURTHER INFORMATION CONTACT: By PA 19103. This experimental use permit control of lepidopterous pests. The mail: Registration Division (7505C), allows the use of 555 pounds of the program is authorized only in the States Office of Pesticide Programs, herbicide 2-(2-chlorophenyl)methyl-4,4- of Arizona, California, Florida, Georgia, Environmental Protection Agency, 401 dimethyl-3-isoxazolidinone on 555 Hawaii, Michigan, Mississippi, Ohio, M St., SW., Washington, DC 20460. acres of soybeans to evaluate the control New Jersey, New York, North Carolina, In person or by telephone: Contact the of broadleaf weeds and grasses. The Oregon, Pennsylvania, Virginia, product manager at the following program is authorized only in the States Tennessee, Texas, and Wisconsin. The address at the office location, telephone of Illinois, Indiana, Iowa, Maryland, experimental use permit is effective number, or e-mail address cited in each Minnesota, Ohio, and Wisconsin. The from May 18, 1995 to May 18, 1996. experimental use permit: 1921 Jefferson experimental use permit is effective Temporary tolerances for residues of the Davis Highway, Arlington, VA. from May 18, 1995 to May 18, 1996. A active ingredient in or on cole crops and SUPPLEMENTARY INFORMATION: EPA has temporary tolerance for residues of the leafy vegetables have been established. issued the following experimental use active ingredient in or on soybeans has (Richard Keigwin, PM 10, Rm. 713, CM permits: been established. (Robert Taylor, PM 25, #2, 703–305–7618, e-mail: 45639–EUP–56. Issuance. AgrEvo Rm. 241, CM #2, 703–305–6800, e-mail: [email protected]) USA Company, Little Falls Centre One, [email protected]) Persons wishing to review these 2711 Centerville Rd., Wilmington, DE 618–EUP–14. Amended. Merck & experimental use permits are referred to 19808. This experimental use permit Company, Inc., P.O. Box 450, Three the designated product managers. allows the use of 449 pounds of the Bridges, NJ 08887–0450. This Inquires concerning these permits herbicide ammonium-DL-homoalanin-4- experimental use permit allows the use should be directed to the person cited yl-(methyl) phosphinate on 562 acres of of 13.32 pounds of the insecticide 4′ ′- above. It is suggested that interested Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42565 persons call before visiting the EPA Libraries. Additional information on 3. File Symbol: 241–GAL. Applicant: office, so that the appropriate file may electronic submission can be found American Cyanamid Co. Product name: be made available for inspection below in this document. AC 263,222 Herbicide. Herbicide. purposes from 8 a.m. to 4 p.m., Monday Information submitted in any Active ingredient: Ammonium salt of through Friday, excluding legal comment concerning this notice may be (±)-2-[4,5-dihydro-4-methyl-4-(1- holidays. claimed confidential by marking any methylethyl)-5-oxo-1H-imidazol-2-yl]-5- part or all of that information as Authority: 7 U.S.C. 136. methyl-3-pyridinecarboxylic acid at ‘‘Confidential Business Information’’ 23.6 percent. Proposed classification/ List of Subjects (CBI). Information so marked will not be Use: General. For weed control and turf disclosed except in accordance with growth suppression on roadsides and Environmental protection, procedures set forth in 40 CFR part 2. other noncrop areas. Type registration: Experimental use permits. A copy of the comment that does not Conditional. (PM 25) Dated: August 2, 1995. contain CBI must be submitted for Notice of approval or denial of an Stephen L. Johnson, inclusion in the public record. application to register a pesticide Director, Registration Division, Office of Information not marked confidential product will be announced in the Pesticide Programs. may be disclosed publicly by EPA Federal Register. The procedure for without prior notice to the submitter. requesting data will be given in the [FR Doc. 95–20306 Filed 8–15–95; 8:45 am] All written comments will be available Federal Register if an application is BILLING CODE 6560±50±F for public inspection in Rm. 1132 at the approved. address given above, from 8 a.m. to 4:30 Comments received within the [OPP±30391; FRL±4969±3] p.m., Monday through Friday, excluding specified time period will be considered legal holidays. before a final decision is made; American Cyanamid Co.; Applications FOR FURTHER INFORMATION CONTACT: By comments received after the time to Register Pesticide Products mail: Robert Taylor, Product Manager specified will be considered only to the extent possible without delaying AGENCY: Environmental Protection (PM) 25, Registration Division (7505C), processing of the application. Agency (EPA). Office of Pesticide Programs, 401 M St., SW., Washington, DC 20460. Office A record has been established for this ACTION: Notice. location/telephone number: Rm. 251, notice under docket number [OPP– 30391] (including comments and data SUMMARY: This notice announces receipt CM #2, Environmental Protection of applications to register pesticide Agency, 1921 Jefferson Davis Highway, submitted electronically as described products containing active ingredients Arlington, VA 22202. (703)–305–6800; below). A public version of this record, not included in any previously e-mail: [email protected] including printed, paper versions of registered products, pursuant to the SUPPLEMENTARY INFORMATION: EPA electronic comments, which does not provisions of section 3(c)(4) of the received applications as follows to include any information claimed as CBI, Federal Insecticide, Fungicide, and register pesticide products containing is available for inspection from 8 a.m. to Rodenticide Act (FIFRA), as amended. active ingredients not included in any 4:30 p.m., Monday through Friday, previously registered products pursuant excluding legal holidays. The public DATES: Written comments must be to the provisions of section 3(c)(4) of record is located in Rm. 1132 of the submitted by September 15, 1995. FIFRA. Notice of receipt of these Public Response and Program Resources ADDRESSES: By mail submit comments applications does not imply a decision Branch, Field Operations Division identified by the document control by the Agency on the applications. (7506C), Office of Pesticide Programs, number [OPP–30391] and the Environmental Protection Agency, Products Containing Active Ingredients registration/file number to: Public Crystal Mall #2, 1921 Jefferson Davis Not Included In Any Previously Response and Program Resources Highway, Arlington, VA. Registered Products Branch, Field Operations Division Electronic comments can be sent (7506C), Office of Pesticide Programs, 1. File Symbol: 241–GAU. Applicant: directly to EPA at: Environmental Protection Agency, 401 American Cyanamid Company, [email protected] M St., SW., Washington, DC 20460, In Agricultural Research Division, Electronic comments must be person, bring comments to: Princeton NJ 08543–0400. Product submitted as an ASCII file avoiding the Environmental Protection Agency, Rm. name: Cadre Herbicide. Herbicide. use of special characters and any form 1132, CM #2, 1921 Jefferson Davis Active ingredient: Ammonium salt of of encryption. Highway, Arlington, VA. (±)-2-[4,5-dihydro-4-methyl-4-(1- The official record for this notice, as Comments and data may also be methylethyl)-5-oxo-1H-imidazol-2-yl]-5- well as the public version, as described submitted electronically by sending methyl-3-pyridinecarboxylic acid at above will be kept in paper form. electronic mail (e-mail) to: opp- 23.6 percent. Proposed classification/ Accordingly, EPA will transfer all [email protected]. Electronic Use: General. To control broadleaf and comments received electronically into comments must be submitted as an grass weeds in peanuts. Type printed, paper form as they are received ASCII file avoiding the use of special registration: Conditional. (PM 25) and will place the paper copies in the characters and any form of encryption. 2. File Symbol: 241–GAG. Applicant: official record which will also include Comments and data will also be American Cyanamid Co. Product name: all comments submitted directly in accepted on disks in WordPerfect in 5.1 Cadre Herbicide Technical. Herbicide. writing. The official record is the paper file format or ASCII file format. All Active ingredient: Ammonium salt of record maintained at the address in comments and data in electronic form (±)-2-[4,5-dihydro-4-methyl-4-(1- ‘‘ADDRESSES’’ at the beginning of this must be identified by the docket number methylethyl)-5-oxo-1H-imidazol-2-yl]-5- document. [OPP–30391]. No ‘‘Confidential methyl-3-pyridinecarboxylic acid at Written comments filed pursuant to Business Information’’ (CBI) should be 96.4 percent. Proposed classification/ this notice, will be available in the submitted through e-mail. Electronic Use: General. For formulating purposes Public Response and Program Resources comments on this notice may be filed only. Type registration: Conditional. Branch, Field Operations Division at the online at many Federal Depository (PM 25) address provided from 8 a.m. to 4:30 42566 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices p.m., Monday through Friday, excluding 1. RH-5992 Technical (EPA List of Subjects legal holidays. It is suggested that Registration Number 707–237) for Environmental protection, Pesticides persons interested in reviewing the repackaging, relabeling, formulation, or and pests, Product registration. application file, telephone this office at processing use only. Dated: July 25, 1995. (703–305–5805), to ensure that the file 2. Confirm 2F (EPA Registration is available on the date of intended visit. Number 707–238) for use to control the Stephen L. Johnson, Authority: 7 U.S.C. 136. lepidepterous pest on walnuts. Director, Registration Division, Office of The Agency has considered all Pesticide Programs. List of Subjects required data on risks associated with [FR Doc. 95–20168 Filed 8–15–95; 8:45 am] the proposed use of tebufenozide BILLING CODE 6560±50±F Environmental protection, Pesticides benzoic acid 3,5-dimethylethyl)-2-(4- and pests, Product registration. ethylbenzoyl)hydrazide, and Dated: August 2, 1995. information on social, economic, and [FRL±5278±3] Stephen L. Johnson, environmental benefits to be derived from use. Specifically, the Agency has Department of Energy Draft Director, Registration Division, Office of Compliance Certification Application Pesticide Programs. considered the nature of the chemical and its pattern of use, application for the Waste Isolation Pilot Plant [FR Doc. 95–20167 Filed 8–15–95; 8:45 am] methods and rates, and level and extent AGENCY: Environmental Protection BILLING CODE 6560±50±F of potential exposure. Based on these Agency (EPA). reviews, the Agency was able to make ACTION: Notice of Availability. [OPP±30362B; FRL±4967±3] basic health safety determinations which show that use of tebufenozide SUMMARY: The EPA is announcing the Rohm and Haas Co.; Approval of benzoic acid 3,5-dimethylethyl)-2-(4- availability of a draft compliance Pesticide Product Registrations ethylbenzoyl)hydrazide when used in certification application for the Waste accordance with widespread and Isolation Pilot Plant (WIPP) submitted AGENCY: Environmental Protection commonly recognized practice, will not in two parts to the Agency by the Agency (EPA). generally cause unreasonable adverse Department of Energy (DOE) on March ACTION: Notice. effects to the environment. 31, 1995 and July 31, 1995, respectively. More detailed information on these The EPA invites the public to provide SUMMARY: This notice announces registrations is contained in a Chemical comments to the EPA on the draft DOE Agency approval of applications to Fact Sheet on tebufenozide benzoic acid compliance certification application. register the pesticide products RH-5992 3,5-dimethylethyl)-2-(4- The EPA will consider these comments Technical and Confirm 2F, containing ethylbenzoyl)hydrazide. in conducting a staff-level technical an active ingredient not included in any A copy of this fact sheet, which review of the draft document. previously registered products pursuant provides a summary description of the DATES: Comments in response to today’s to the provisions of section 3(c)(5) of the chemical, use patterns and notice must be received by October 16, Federal Insecticide, Fungicide, and formulations, science findings, and the 1995. Rodenticide Act (FIFRA), as amended. Agency’s regulatory position and ADDRESSES: Copies of the draft DOE FOR FURTHER INFORMATION CONTACT: By rationale, may be obtained from the compliance certification application are mail: Richard Keigwin, Product National Technical Information Service available to the public at EPA Docket Manager (PM) 10, Registration Division (NTIS), 5285 Port Royal Road, No. A–93–02 maintained at the (7505C), Office of Pesticide Programs, Springfield, VA 22161. following addresses: (1) room 1500 (first 401 M St., SW., Washington, DC 20460. In accordance with section 3(c)(2) of floor in the Waterside Mall near the Office location and telephone number: FIFRA, a copy of the approved label and Washington Information Center), U.S. Rm. 210, CM #2, Environmental the list of data references used to Environmental Protection Agency, Air Protection Agency, 1921 Jefferson Davis support registration are available for Docket, 401 M Street, S.W., Washington, Hwy, Arlington, VA 22202, (703) 305– public inspection in the office of the D.C. 20460 (open from 8:00 a.m. to 4:00 6788; e-mail: Product Manager. The data and other p.m. on weekdays); (2) EPA’s docket in [email protected]. scientific information used to support the Government Publications SUPPLEMENTARY INFORMATION: EPA registration, except for material Department of the Zimmerman Library issued a notice, published in the specifically protected by section 10 of of the University of New Mexico located Federal Register of April 29, 1994 (59 FIFRA, are available for public in Albuquerque, New Mexico (open FR 22160), which announced that Rohm inspection in the Public Response and from 8:00 a.m. to 9:00 p.m. on Monday and Haas, Independence Mall West, Program Resources Branch, Field through Thursday, 8:00 a.m. to 5:00 Philadelphia, PA 19105, had submitted Operations Division (7506C), Office of p.m. on Friday, 9:00 a.m. to 5:00 p.m. applications to register the pesticide Pesticide Programs, Environmental on Saturday, and 1:00 p.m. to 9:00 p.m. products RH-5992 Technical and Protection Agency, Rm. 1132, CM #2, on Sunday); (3) EPA’s docket in the Confirm 2F (EPA File Symbols 707– Arlington, VA 22202 (703–305–5805). Fogelson Library of the College of Santa EGT, 707–EGI), containing the active Requests for data must be made in Fe, located at 1600 St. Michaels Drive, ingredient tebufenozide benzoic acid accordance with the provisions of the Santa Fe, New Mexico (open from 8:00 3,5-dimethylethyl)-2-(4- Freedom of Information Act and must a.m. to 12:00 midnight on Monday ethylbenzoyl)hydrazide at 97.1 and 23.0 be addressed to the Freedom of through Thursday, 8:00 a.m. to 5:00 percent respectively, an active Information Office (A–101), 401 M St., p.m. on Friday, 9:00 a.m. to 5:00 p.m. ingredient not included in any SW., Washington, D.C. 20460. Such on Saturday and 1:00 p.m. to 9:00 p.m. previously registered products. requests should: (1) Identify the product on Sunday); and (4) EPA’s docket in the On May 15, 1995, EPA approved one name and registration number and (2) Municipal Library of Carlsbad, New technical and one end-use product specify the data or information desired. Mexico, located at 101 South Halegueno listed below: Authority: 7 U.S.C. 136. (open from 10:00 a.m. to 9:00 p.m. on Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42567 Monday through Thursday, 10:00 a.m. 1993 and January 30, 1995 Federal response to the proposal and be to 6:00 p.m. on Friday and Saturday, Register notices for more detailed accompanied with a reply to significant and 1:00 p.m. to 5:00 p.m. on Sunday). information about the EPA’s regulatory public comments. As provided in 40 CFR Part 2, a activities at the WIPP. Dated: August 10, 1995. The DOE submitted a draft reasonable fee may be charged for Mary Nichols, photocopying docket materials. compliance certification application to Comments on the draft DOE the EPA in two parts on March 31, 1995 Assistant Administrator, Office of Air and Radiation. application should be submitted, in and July 31, 1995, respectively. The duplicate, to: Docket No. A–93–02, U.S. DOE intends for this draft application to [FR Doc. 95–20228 Filed 8–15–95; 8:45 am] Environmental Protection Agency, Air provide preliminary information on data BILLING CODE 6560±50±P Docket, Room M–1500 (LE–131), 401 M gathered for the WIPP and to solicit Street, S.W., Washington, D.C. 20460. feedback regarding the technical EXECUTIVE OFFICE OF THE FOR FURTHER INFORMATION CONTACT: adequacy of the data in an effort to PRESIDENT Agnes Ortiz or Lynne Weinrib, U.S. prepare for its final compliance certification application. The EPA staff Environmental Protection Agency, Open Meeting of Policy Dialog Office of Radiation and Indoor Air will conduct a technical review of the draft application and provide comments Advisory Committee to Assist in the (6602J), 401 M Street, S.W., Washington, Development of Measures to D.C. 20460; (202) 233–9310. to DOE on its technical adequacy. By this notice, the EPA is inviting the Significantly Reduce Greenhouse Gas SUPPLEMENTARY INFORMATION: The public to participate in the review of the Emissions From Personal Motor Department of Energy is proposing to draft application, available at the public Vehicles use the Waste Isolation Pilot Plant dockets identified above, by submitting (WIPP), located in Eddy County, New AGENCY: Executive Office of the written comments for the EPA’s President. Mexico, as a deep geologic repository consideration in its staff-level technical ACTION: Meeting of Policy Dialog for the disposal of transuranic review of the draft application. The Advisory Committee. radioactive waste generated by nuclear EPA’s technical review of the draft defense activities. The 1992 Waste application is not subject to the notice- SUMMARY: The Executive Office of the Isolation Pilot Plant Land Withdrawal and-comment rulemaking requirements Act, (Pub. L. No. 102–579), calls for the President has established a Policy of the Administrative Procedure Act, 5 Dialog Advisory Committee to assist in EPA to perform several regulatory U.S.C. 553, and the EPA does not plan activities for the WIPP including: (1) the development of measures to to provide written response to the significantly reduce greenhouse gas issuing radioactive waste disposal public comments submitted. However, standards; (2) establishing criteria for emissions from personal motor vehicles. public comments on the DOE’s draft The eleventh meeting of this committee the EPA to determine whether the WIPP application which are submitted to the complies with the radioactive waste will be held on September 19 and 20, EPA will be available at EPA Docket No. 1995. The committee’s meetings are disposal standards; and (3) certifying A–93–02 along with the EPA’s review whether the DOE’s WIPP facility open to the public without need for comments. advance registration. complies with the disposal standards, The EPA’s review of the DOE draft DATES: The committee will meet on based on a DOE submitted compliance application is not a final EPA action and September 19, 1995 from 9:30 a.m. to certification application. See section 8 has no binding legal effect. The Agency 5:30 p.m., and on September 20, 1995 of the WIPP Land Withdrawal Act. The cannot, by law, approve or certify any from 8:30 a.m. to 4:00 p.m. WIPP Land Withdrawal Act prohibits part of the draft application. Further, the the DOE from commencing with the EPA has not issued the final criteria for ADDRESSES: Both sessions of the meeting emplacement of transuranic waste for determining whether the WIPP facility will be held in Room 2230 at the United underground disposal at the WIPP until is in compliance with the radioactive States Department of Transportation, the EPA certifies that the facility will waste disposal standards. The 400 7th Street, S.W., Washington, D.C. comply with EPA’s radioactive waste Administrator of the EPA will FOR FURTHER INFORMATION CONTACT: For disposal standards. See section 7(b) of determine whether the WIPP facility is information pertaining to the the WIPP Land Withdrawal Act. in compliance with the EPA’s substantive issues to be dealt with by The EPA has issued final radioactive radioactive waste disposal standards the advisory committee, contact: Ellen waste disposal standards, which are only after the Agency issues final Seidman, Special Assistant to the codified at 40 CFR part 191. See 58 FR compliance criteria, receives a final President for Economic Policy, 66398 (Dec. 20, 1993). The EPA has also DOE compliance certification Washington, D.C. 20500, phone (202) proposed criteria for certifying whether application based on the final 456–2802, fax (202) 456–2223; Henry the WIPP facility will comply with compliance criteria, and conducts a Kelly, Assistant Director for EPA’s radioactive waste disposal WIPP certification rulemaking Technology, Office of Science and standards. See 60 FR 5766 (Jan. 30, proceeding in accordance with the Technology Policy, phone (202) 456– 1995). After considering a request to Administrative Procedure Act 6034, fax (202) 456–6023; Wesley extend the initial public comment rulemaking requirements at 5 U.S.C. Warren, Associate Director, Council on period and in order to provide an 553. In addition, before the Environmental Quality, phone (202) opportunity for the public to comment Administrator of the EPA makes any 456–6224, fax (202) 456–2710; or on the proposed compliance criteria in final WIPP certification determination, Michael Toman, Senior Economist, light of the DOE’s draft compliance the EPA will issue a proposed Council of Economic Advisors, phone certification application, the EPA determination in the Federal Register (202) 395–5012, fax (202) 395–6853. For recently announced that it was and provide an opportunity for public information pertaining to administrative reopening the public comment period comment on the proposal. The matters contact: Deborah Dalton, on the proposed compliance criteria. subsequent final certification Environmental Protection Agency, 401 See 60 FR 39131 (August 1, 1995). The determination by the Administrator will M Street, S.W., Washington, D.C. 20460, public is referred to the December 20, consider the comments received in phone (202) 260–5495. 42568 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Information about the Committee is preparation. October 14—Agenda Dated: August 10, 1995. also available on the Technology completion. October 15—Attend National Joseph C. Polking, Transfer Network of the Office of Air Fallen Firefighters Memorial Services. Secretary. Quality Planning & Standards of the SUPPLEMENTARY INFORMATION: The [FR Doc. 95–20200 Filed 8–15–95; 8:45 am] Environmental Protection Agency, meeting will be open to the public with BILLING CODE 6730±01±M which can be accessed electronically by seating available on a first-come, first- calling (919) 541–5742. Help in served basis. Members of the general accessing the system can be obtained by public who plan to attend the meeting FEDERAL RESERVE SYSTEM calling (919) 541–5384 between 1:00 should contact the Office of the and 5:00 Eastern Standard Time. Superintendent, National Fire Academy, First Union Corporation; NationsBank Neither of these numbers is a toll-free U.S. Fire Administration, 16825 South Corporation; Southern National number. The Committee’s toll-free Seton Avenue, Emmitsburg, MD 21727, Corporation; and Wachovia information line—1–800–884–9190— (301) 447–1117, on or before October 2, Corporation; Notice to Engage in provides recorded information about the 1995. Certain Nonbanking Activities Committee, including meeting dates and Minutes of the meeting will be locations. (In the local Washington, DC First Union Corporation, Charlotte, prepared and will be available for North Carolina; NationsBank area, call (202) 366–2372.) public viewing in the Office of the Agenda for the Meeting: At the Corporation, Charlotte, North Carolina; Administrator, U.S. Fire meeting, the Committee will discuss: Southern National Corporation, Administration, Federal Emergency • Potential policies in the areas of Winston-Salem, North Carolina; and Management Agency, Emmitsburg, MD vehicle miles traveled, alternative fuels Wachovia Corporation, Winston-Salem, 21727. Copies of the minutes will be and alternative fuel vehicles, and North Carolina (collectively, available upon request 30 days after the vehicle and stock fuel economy; Notificants), have given notice pursuant meeting. • Analysis of the cost of potential to section 4(c)(8) of the Bank Holding policy options; Dated: August 1, 1995. Company Act (12 U.S.C. 1843(c)(8)) • Potential combinations of policies; Carrye B. Brown, (BHC Act) and § 225.23 of the Board’s Regulation Y (12 CFR 225.23), of their and U.S. Fire Administrator. • intention to acquire 15.252 percent, A draft of the committee’s final [FR Doc. 95–20270 Filed 8–15–95; 8:45 am] report. 18.293 percent, 12.889 percent, and BILLING CODE 6718±01±M 17.242 percent, respectively, of Dated: August 10, 1995. Education Financing Services, LLC, W. Bowman Cutter, Winston-Salem, North Carolina (EFS). Deputy Assistant to the President for Through EFS, Notificants will provide Economic Policy. FEDERAL MARITIME COMMISSION development, management, software, John H. Gibbons, Ocean Freight Forwarder License; marketing, and training services to the Director, Office of Science and Technology Applicants North Carolina State Education Policy. Assistance Authority, the North Kathleen A. McGinty, Notice is hereby given that the Carolina State Treasurer’s office, and the Chair, Council on Environmental Quality. following applicants have filed with the College Foundation, Inc. in connection [FR Doc. 95–20256 Filed 8–15–95; 8:45 am] Federal Maritime Commission with the administration of the College BILLING CODE 3195±01±M applications for licenses as ocean freight Vision Fund, a program designed to forwarders pursuant to section 19 of the assist North Carolina families in Shipping Act of 1984 (46 U.S.C. app. financing the higher education of their FEDERAL EMERGENCY 1718 and 46 CFR 510). children. This activity will be MANAGEMENT AGENCY Persons knowing of any reason why conducted in North Carolina. any of the following applicants should Section 4(c)(8) of the BHC Act Open Meeting, Board of Visitors for the not receive a license are requested to provides that a bank holding company National Fire Academy contact the Office of Freight Forwarders, may, with Board approval, engage in Federal Maritime Commission, any activity ‘‘which the Board after due AGENCY: Federal Emergency Washington, DC 20573. notice and opportunity for hearing has Management Agency (FEMA). determined (by order or regulation) to Abroad Cargo Service, Inc., 7968–7970 ACTION: be so closely related to banking or Notice of open meeting. N.W. 66 Street, Miami, FL 33166, managing or controlling banks as to be Officers: Claudio Rozentzvaig, Celia J. SUMMARY: In accordance with section a proper incident thereto.’’ 12 U.S.C. Garcio, Vice President 10(a)(2) of the Federal Advisory 1843(c)(8). In publishing the proposal King Senderax, Incorporated d/b/a King Committee Act, 5 U.S.C. App. 2, FEMA for comment, the Board does not take a Senderax Cargo, 9618 Belford announces the following committee position on issues raised by the Avenue, #3, Los Angeles, CA 90045, meeting: proposal. Notice of the proposal is Officers: Anupam Biswas, C.E.O., Name: Board of Visitors for the National published solely in order to seek the Norbert Giessman, Vice President Fire Academy. views of interested persons on the Dates of Meeting: October 12–15, 1995. A A International, 100 Clark Street, issues presented by the notice, and does Place: Building G Conference Room, Keyport, NJ 07735, Zuowen Bei, Sole not represent a determination by the National Emergency Training Center, Proprietor Board that the proposal meets or is Emmitsburg, Maryland. Quartet International, 7508 Potrero likely to meet the standards of the BHC Time: October 12, 1995, 8:30 a.m.–5:00 Avenue, El Cerrito, CA 94530, p.m., October 13, 1995, 8:30 a.m.–9:00 p.m., Act. Officers: William E. Reinka, C.E.O/ Any comments or requests for hearing October 14, 1995, 8:30 a.m.–5:00 p.m., Dir./Pres., Thomas H. Rogers, October 15, 1995, 9:00 a.m.–2:00 p.m. should be submitted in writing and Proposed Agenda: October 12—Election of Director. received by William W. Wiles, officers. October 12—Annual Report By the Federal Maritime Commission. Secretary, Board of Governors of the Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42569 Federal Reserve System, Washington, evidence that would be presented at a D. Federal Reserve Bank of Chicago D.C. 20551, not later than September 8, hearing, and indicating how the party (James A. Bluemle, Vice President) 230 1995. Any request for a hearing on this commenting would be aggrieved by South LaSalle Street, Chicago, Illinois proposal must, as required by § 262.3(e) approval of the proposal. 60690: of the Board’s Rules of Procedure (12 Unless otherwise noted, comments 1. Carroll County Bancshares, Inc., CFR 262.3(e)), be accompanied by a regarding each of these applications Carroll, Iowa; to establish a wholly statement of the reasons why a written must be received at the Reserve Bank owned industrial loan company, Carroll presentation would not suffice in lieu of indicated for the application or the Credit, Inc., Carroll, Iowa, which will a hearing, identifying specifically any offices of the Board of Governors not acquire a substantial portion of the questions of fact that are in dispute, later than August 30, 1995. assets of Personal Lenders, Inc., Carroll, summarizing the evidence that would A. Federal Reserve Bank of New Iowa, and thereby engage in operating be presented at a hearing, and indicating York (William L. Rutledge, Senior Vice an industrial loan company, pursuant to how the party commenting would be President) 33 Liberty Street, New York, § 225.25(b)(2) of the Board’s Regulation aggrieved by approval of the proposal. New York 10045: Y. The notice may be inspected at the 1. National Westminster Bank PLC, London, England; Natwest Holdings Board of Governors of the Federal Reserve offices of the Board of Governors or the System, August 10, 1995. Federal Reserve Bank of Richmond. Inc., New York, New York; and National William W. Wiles, Board of Governors of the Federal Reserve Westminster Bancorp Inc., Jersey City, System, August 10, 1995. New Jersey; to acquire Natwest Leasing Secretary of the Board. Corporation, New York, New York [FR Doc. 95–20234 Filed 8–15–95; 8:45 am] William W. Wiles, (Company), and thereby engage in BILLING CODE 6210±01±F Scretary of the Board. making, acquiring, or servicing loans or [FR Doc. 95–20232 Filed 8–15–95; 8:45 am] other extensions of credit for Company’s BILLING CODE 6210±01±F own accounts or for the account of FEDERAL TRADE COMMISSION others, such as would be made, acquired or serviced by a commercial finance Policy Statement Regarding Duration National Westminster Bank PLC, et al.; company, pursuant to § 225.25 (b)(1) of of Competition and Consumer Acquisitions of Companies Engaged in the Board’s Regulation Y; in leasing Protection Orders Permissible Nonbanking Activities personal and real property having a The organizations listed in this notice maximum estimated residual value of AGENCY: Federal Trade Commission. have applied under § 225.23(a)(2) or (f) 25 percent of the acquisition cost of the ACTION: Notice of policy statement. of the Board’s Regulation Y (12 CFR property, and to act as an agent, broker SUMMARY: 225.23(a)(2) or (f)) for the Board’s or adviser in leasing such property, This notice describes the approval under section 4(c)(8) of the pursuant to § 225.25(b)(5)(i) of the Federal Trade Commission’s Policy Bank Holding Company Act (12 U.S.C. Board’s Regulation Y; and in high Statement regarding the duration of 1843(c)(8)) and § 225.21(a) of Regulation residual value leasing of tangible future and existing administrative cease Y (12 CFR 225.21(a)) to acquire or personal property, and to act as agent, and desist orders as well as federal control voting securities or assets of a broker or adviser in leasing such district court orders in competition and company engaged in a nonbanking property, in transactions in which the consumer protection matters. Under this activity that is listed in § 225.25 of lessor would be allowed to rely upon an Policy Statement, the Commission will Regulation Y as closely related to estimated residual value in excess of 25 ordinarily terminate (‘‘sunset’’) future banking and permissible for bank of the acquisition cost of the property, competition and consumer protection holding companies. Unless otherwise pursuant to § 225.25(b)(5)(ii) of the administrative orders automatically noted, such activities will be conducted Board’s Regulation Y. These activities after twenty years, unless the throughout the United States. will be conducted worldwide. Commission or the Department of Each application is available for B. Federal Reserve Bank of Justice has filed a complaint (with or immediate inspection at the Federal Philadelphia (Michael E. Collins, Senior without an accompanying consent Reserve Bank indicated. Once the Vice President) 100 North 6th Street, decree) in federal court to enforce such application has been accepted for Philadelphia, Pennsylvania 19105: order pursuant to Section 5(1) of the processing, it will also be available for 1. Keystone Financial, Inc., Federal Trade Commission Act inspection at the offices of the Board of Harrisburg, Pennsylvania; to acquire (‘‘FTCA)’’. This policy will not extend Governors. Interested persons may Martindale Andres & Company, Inc., to federal court orders. The Commission express their views in writing on the West Conshohocken, Pennsylvania, and also intends to terminate each existing question whether consummation of the thereby engage in investment advisory administrative order twenty years after proposal can ‘‘reasonably be expected to services, pursuant to § 225.25(b)(4) of it was issued, unless the Commission or produce benefits to the public, such as the Board’s Regulation Y. the Department of Justice has filed a greater convenience, increased C. Federal Reserve Bank of Cleveland complaint (with or without an competition, or gains in efficiency, that (John J. Wixted, Jr., Vice President) 1455 accompanying consent decree) in outweigh possible adverse effects, such East Sixth Street, Cleveland, Ohio federal court to enforce such order as undue concentration of resources, 44101: pursuant to Section 5(1) of the FTCA decreased or unfair competition, 1. First Financial Bancorp, Hamilton, during the twenty years preceding the conflicts of interests, or unsound Ohio; to acquire Independent Bankers adoption of the Policy Statement, or banking practices.’’ Any request for a Life Insurance Company of Indiana, unless such a complaint is filed after the hearing on this question must be Roachdale, Indiana, and thereby engage adoption of the Policy Statement and accompanied by a statement of the in underwriting credit life, accident, within twenty years after the order’s reasons a written presentation would and health insurance, pursuant to § issuance. The Commission intends to not suffice in lieu of a hearing, 225.25(b)(8)(i) of the Board’s Regulation implement its new policy with respect identifying specifically any questions of Y. These activities will be conducted to existing administrative orders fact that are in dispute, summarizing the within the State of Indiana. through rulemaking. 42570 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices In adopting this Policy Statement, the public comment on whether consumer existence of these orders burdensome Commission considered comments filed protection orders also should be and anti-competitive. Several in response to the Commission’s ‘‘Policy sunsetted. commenters asserted that the Statement With Request for Public The Commission received 23 enforcement options available to the Comment Regarding Duration of comments in response to its invitation. Commission for deterring violations of Competition Orders and Request for The commenters expressed nearly law have expanded significantly over Public Comment Regarding Duration of unanimous support for the the years, making it unnecessary to rely Consumer Protection Orders,’’ Commission’s current policy of on perpetual order restrictions. Finally, published in the Federal Register on terminating competition orders. some commenters recommended September 1, 1994. 59 Fed. Reg. 45286. However, most of the commenters automatically terminating consumer This new Policy Statement will recommended that the Commission protection orders after ten years, while supersede the Policy Statement amend the policy statement by others recommended automatically Regarding Duration of Competition shortening the sunset period for new terminating them after twenty years and Orders adopted on July 22, 1994. In competition orders and by terminating applying a presumption for terminating addition, the Commission is publishing existing orders automatically rather than these orders after ten years in response and seeking comment on a Notice of applying a presumption in favor of to a petition to reopen. Proposed Rulemaking to implement its termination in response to petitions to On the basis of the comments policy with respect to existing reopen. received and other considerations, the administrative orders. The Commission Of the 23 commenters, 19 supported Commission has concluded that the is also soliciting comment regarding this adopting a sunset policy for both future existing policy regarding the duration of Policy Statement. and existing consumer protection competition orders should be revised in orders, three opposed it, and one did DATES: Comments must be received on three key respects. First, the new Policy or before September 15, 1995. not address the issue. The three Statement explicitly sets forth a commenters opposing sunsetting circumstance in which future ADDRESSES: Written comments should consumer protection orders were the competition orders would endure more be directed to: FTC/Office of the FTC-Working Group of the National than twenty years. Whereas the existing Secretary, Room 159, 6th St. & Pa. Ave. Association of Attorneys General policy states that core provisions in N.W., Washington, D.C. 20580. (‘‘NAAG’’), the American Association of future orders ‘‘ordinarily’’ will sunset in FOR FURTHER INFORMATION CONTACT: Retired Persons (‘‘AARP’’), and the twenty years, the new Policy Statement Donald S. Clark, Secretary, Federal Center for Science in the Public Interest provides that core provision in future Trade Commission, (202) 326–2514; (‘‘CSPI’’). competition administrative orders will Roberta Baruch, Deputy Assistant The three commenters who opposed ordinarily sunset in twenty years, unless Director for Compliance, Bureau of sunsetting consumer protection orders either the Commission or the Competition, (202) 326–2861; or Justin argued that such action is unnecessary Department of Justice has filed a Dingfelder, Assistant Director for because consumer protection orders complaint (with or without an Enforcement, Bureau of Consumer merely require respondents to refrain accompanying consent decree) in Protection, (202) 326–3017. from unfair or deceptive behavior that is federal court to enforce such order SUPPLEMENTARY INFORMATION: The unlawful under any circumstances, pursuant to Section 5(1) of the FTCA.3 Commission adopted its existing policy without respect to changes in market, Second, the new Policy Statement sets regarding the duration of competition organizational, or other conditions. forth the Commission’s intention to orders on July 22, 1994. Under that AARP asserted that the absence of dispense with the petitioning process to policy, the Commission presumes that Commission action in a particular area sunset existing competition orders and core provisions in future competition does not necessarily indicate that the instead sunset such orders through administrative orders and federal court practices proscribed by earlier orders in rulemaking. The rule, proposed orders should ordinarily terminate that area have ceased to be illegal. CSPI elsewhere in the Federal Register, automatically after twenty years.1 The asserted that the reopening process would automatically sunset each Commission also presumes that all serves as an effective procedure for existing administrative order twenty supplemental provisions in future relief for companies and individuals years after it was issued, unless the competition orders should sunset after that find themselves subject to outdated Commission or the Department of no more than ten years.2 In addition, in orders. The FTC–NAAG Working Group Justice has filed a compliant (with or the context of petitions to reopen and suggested that the requirements of without an accompanying consent vacate existing competition complying with Commission orders decree) in federal court to enforce such administrative orders, the Commission might have the potential to reduce order pursuant to Section 5(1) of the applies a rebuttable presumption that company costs by heightening the FTCA during the twenty years the public interest warrants terminating sensitivity of company personnel to preceding the adoption of the Policy orders that have been in force for more consumer protection law issues, thus Statement, or unless such a compliant is than twenty years. The notice reducing the likelihood of having to filed after the adoption of the Policy announcing this policy also requested defend against allegations regarding Statement and within twenty years after future violations. the order’s issuance. Third, the new 1 Core provisions prohibit practices that would be The commenters who favored Policy Statement will not apply to unlawful whether used by parties subject to the sunsetting consumer protection orders Federal court orders. order at issue or by other similarly situated persons advanced considerations that are The Commission’s present policy or entities. 2 Supplemental provisions are intended to essentially the same as those that the regarding the duration of consumer prevent a respondent or defendant from repeating Commission considered in deciding to a law violation or to mitigate the effects of prior sunset competition orders. In their view, 3 The filing of such a complaint will not affect the illegal conduct. Such provisions either prohibit or changes in legal and market duration of the order if the complaint is dismissed restrict conduct that would be lawful if engaged in or the court rules that the respondent did not by parties not subject to the order at issue or impose circumstances over time reduce the violate any provision of the order and the dismissal an affirmative obligation not otherwise required by need to maintain orders to deter or ruling is either upheld on appeal or not law. recidivism, and make continued appealed. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42571 protection administrative orders and Competition Administrative Orders orders on September 1, 1994. 59 Fed. federal court orders is that core The injunctive provisions in Reg. 45,286 (1994). Under that policy, provisions and some type of competition administrative orders may core provisions of future competition supplemental provisions continue in proscribe future violations of statutory orders are ordinarly sunsetted at twenty effect indefinitely and that certain other prohibitions—and secure adherence to years, and supplemental provisions are types of supplemental provisions statutory requirements—including the sunsetted at up to 10 years. After reviewing the comments and terminate after a specified period of prohibition of unfair methods of considering other available information, time, usually five or ten years. On the competition embodied in section 5 of basis of comments received and other the Commission continues to believe the FTCA, 15 U.S.C. 45, and the that core provisions of competition considerations, the Commission has prohibitions and requirements concluded that consumer protection administrative orders should ordinarily embodied in sections 2, 3, 7, 7A, and 8 sunset after twenty years and that administration orders, like competition of the Clayton Act, 15 U.S.C. 13, 14, 18, administration orders, ordinarily fulfill 4 supplemental provisions should sunset 18a, and 19. after up to ten years.7 None of the their remedial purposes within twenty As a matter of law, the remedial years. Accordingly, the Commission comments supplied information that the provisions of Commission orders must Commission had not already considered will presume that core provisions and bear a reasonable relationship to the supplemental provisions that would in choosing ordinarily to sunset core unlawful practices found to exist, and provisions in competition orders after otherwise be perpetual in future must be sufficiently clear and precise to consumer protection administrative twenty years and supplemental be easily understood by the respondents provisions after up to ten years. orders should terminate (or ‘‘sunset’’) 5 or defendants. Particular order Therefore, the Commission is not automatically within twenty years after provisions may prohibit both the the order’s issuance, unless either the changing the sunset periods for core or specific illegal practices alleged in the supplemental provisions in future Commission or the Department of associated complaint and ‘‘like and Justice has filed a compliant (with or competition orders. related’’ practices.6 However, the Commission has without an accompanying consent Where such a provision has been decree) in federal court to enforce such determined that the duration of future included in an order, the Commission orders should be extended in instances order pursuant to Section 5(1) of the may prevail in a subsequent FTCA. This will not affect the current where a complaint has been filed in enforcement proceeding simply by federal court pursuant to section 5(1) of practice of terminating certain establishing that the respondent or supplemental provisions earlier than the FTCA, 15 U.S.C. 45(1), while the defendant did not comply with the order remains in force, alleging a twenty years (e.g., provisions requiring terms of the provision, without having distribution of the order). The violation of such order. The twenty year to also establish that the conduct sunset period will start anew on the Commission intends to implement its prohibited by the provision is illegal, or date of the complaint is filed in federal new policy with respect to existing that the conduct required is reasonably court. However, the filing of such a orders through rulemaking. The related to the prevention of illegal complaint will not affect the duration of Commission’s new policy with respect practices. any supplemental order provision that to future administrative orders will be terminates before twenty years. In effective immediately. Future Orders addition, the filing of such a complaint However, the Commission has The Commission announced its will not affect the duration of the order’s determined that it will not extend the current policy of sunsetting competition application to any respondent that is not policy of sunsetting consumer named as a defendant in such protection orders to federal court orders 4 Competition administrative orders may include complaint.8 Furthermore, the filing of at this time. As discussed in the Policy types of relief that are not addressed in this statement because they have no further effect once Statement, many consumer protection 7 the actions they require have been taken. For Only in an exceptional case will the federal court orders (e.g., fraud orders example, some orders require divestitures, revisions Commission adopt a sunset period longer or shorter entered under section 13(B) of the to bylaws, or publication of the administrative than twenty years for core provisions. The FTCA) pose significantly different compliant and order. Commission does not intend to change, in general, the expirtation periods of particular types of considerations than either competition 5 See, e.g., FTC v. Colgate-Palmolive Co., 380 U.S. 374, 392–95 (1965); FTC v. National Lead Co., 352 supplemental provisions that, as a matter of policy, or consumer protection administrative U.S. 419, 428–30 (1957); FTC v. Ruberoid Co., 343 have been set to expire by their own terms after orders. In addition, the Commission has U.S. 470, 473 (1952); FTC v. Cement Inst., 333 U.S. periods of up to ten years. significantly less experience on which 683, 726 (1948); Jacob Siegel Co. v. FTC, 327 U.S. 8 To implement this policy, new Commission 608, 611–13 (1946). administrative orders will include a provision to conclude that such orders serve their similar to the following: purpose after twenty years. For 6 See FTC v. Mandel Bros., Inc., 359 U.S. 385, 393 (1959); Consumers Products of America, Inc. v. This order will terminate twenty years from the example, most section 13(b) fraud FTC, 400 F.2d 930 (3d Cir. 1968), cert. denied, 393 date of its issuance, or twenty years from the most orders first originated in the 1980s. U.S. 1088 (1969); Nirsk Indus. v. FTC., 278 F.2d recent date that the United States or the Federal 337, 343 (7th Cir.), cert denied, 364 U.S. 883 (1960). Trade Commission files a complaint (with or Statement of Policy with Respect to For example, in FTC v. Colgate-Palmolive Co., 380 without an accompaning consent decree) in federal Duration of Competition and Consumer U.S. 374, 395 (1965), the Supreme Court reviewed court alleging any violation of the order, whichever Protection Orders a Commission order that prohibited a particular comes later; provided, however, that the filing of advertising practice not only for the product at such a complaint will not affect the duration of: This statement describes the policies issue in the case, but also for any other product. A. Any paragraph in this order that terminates in The Court sustained the scope of the order less than twenty years; that the Commission has adopted with provision, stating that B. This order’s application to any respondent that respect to the duration of competition [t]he Commission is not limited to prohibiting the is not named as a defendant in such complaint; and and consumer protection administrative illegal practice in the precise form in which it is C. This order if such complaint is filed after the orders and federal court orders. This found to have existed in the past. Having been order has terminated pursuant to this paragraph. new Policy Statement supersedes the caught violating the Act, respondents ‘must expect Provided further, that if such complaint is some fencing in.’ dismissed or a federal court rules that the Policy Statement Regarding Duration of Id. at 395, quoting FTC v. National Lead Co., 352 respondent did not violate any provision of the Competition Orders adopted on July 22, U.S. at 431, and FTC v. Ruberoid Co., 343 U.S. at order, and the dismissal or ruling is either not 1994. 473. Continued 42572 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices such complaint will not affect the terminate such orders automatically after the order’s issuance will not be duration of the order if the complaint is without engaging in a case-by-case extended by the filing of such a dismissed or if a court rules that the review of each order through the complaint, even if the section 5(1) defendant did not violate any provision petitioning process. complaint is filed within that first ten of the order, and the dismissal or ruling The Commission has concluded that years after the order’s issuance. In is either not appealed or upheld on these recommendations have merit. The addition, the filing of such a complaint appeal. new Policy defines in bright-line will not affect the duration of the order The filing of a complaint (with or fashion the principal circumstances in if the complaint is dismissed or the without an accompanying consent which extended order coverage is court rules that the respondent did not decree) under section 5(1) of the FTCA required (the filing of an order violate any provision of the order, and indicates that the Commission had enforcement action). The cost of the the dismissal or ruling is either not reason to believe the order was violated. Commission retraining added discretion appealed or upheld on appeal. This finding undermines the ordinary as to whether it should retain older The Commission intends to presumption that there is no need for orders, thereby requiring a case-by-case implement this policy with respect to further order coverage with respect to analysis with respect to each petition, existing administrative orders through that respondent beyond twenty years.9 likely exceeds the benefits of retaining rulemaking rather than through older orders in extraordinary 12 Existing Orders adjudication. The proposed circumstances. By adopting a policy that rulemaking contemplates that Under existing policy, respondents does not require the Commission to respondents will receive notice through under competition administrative orders exercise discretion with respect to the rulemaking process and will not twenty years old may have their orders individual orders, the Commission will receive individual notice that their sunsetted through the order conserve scarce resources and ensure orders have been terminated. Until this modification process, absent recidivist equitable treatment of similarly situated rulemaking is completed, the conduct or extraordinary respondents now subject to 10 Commission will leave in place its circumstances. Many commenters administrative orders. current policy regarding the duration of recommended that the Commission The new Policy Statement sets forth existing competition administrative modify its policy with respect to the the Commission’s intention to dispense orders. duration of existing administrative with the petitioning process to sunset orders that have remained in force for existing competition orders and instead Consumer protection administrative twenty or more years. They sunset such orders through rulemaking. orders recommended that the Commission The proposed rule, published elsewhere Like competition orders, consumer in the Federal Register, would protection orders perform several appealed or upheld on appeal, then the order will automatically sunset each existing functions. First, they may proscribe terminate according to this paragraph as though the administrative order twenty years after complaint was never filed, except that the order future violations of statutory will not terminate between the date such complaint it was issued, unless the Commission or prohibitions—and secure adherence to is filed and the later of the deadline for appealing the Department of Justice has filed a statutory requirements—including the such dismissal or ruling and the date such complaint (with or without an prohibition of unfair and deceptive acts dismissal or ruling is upheld on appeal. accompanying consent decree) in A five year statute of limitations applies to civil or practices embodied in Section 5 of penalty actions filed in federal court pursuant to federal court to enforce such order the FTCA, and the prohibitions and section 5(1) of the FTCA. See 28 U.S.C. 2462. pursuant to Section 5(1) of the FTCA requirements embodied in other statutes Therefore, it is conceivable that the government during the twenty years preceding the intended to protect consumers, such as could file a complaint up to five years after an order adoption of the Policy Statement, or has terminated challenging violations that occurred the Fair Credit Reporting Act, 15 U.S.C. while the order was in force. Under the Policy unless such a complaint is filed after the 1681, the Truth-in-Lending Act, 15 Statement, the filing of a complaint after the order adoption of the Policy Statement and has terminated will not affect the duration of the within twenty years after the order’s 12 The Commission has the discretion to regulate order. issuance. Under the proposed rule, parties through issuance of a rule of general 9 The Commission retains the discretion to existing orders that do not terminate applicability as opposed to adjudication of change the duration of an order pursuant to 16 CFR individual cases. SEC v. Chenery Corp., 332 U.S. 2.51 or 3.72. Unless an order modification expressly twenty years after they are issued due to 194 (1947); Heckler v. Ringer, 446 U.S. 602, 617, changes the duration of an order, such modification the filing of a section 5(1) complaint (1984); Nat’l Small Shipments Traffic Conf., Inc. v. will not affect the duration of the order as would terminate twenty years after the ICC, 725 F. 2d 1442, 1447 (D.C. Cir. 1984). This is determined by this Policy Statement. Nothing in filing of the most recent complaint to so even if the rule may effectively limit or terminate this Policy Statement will affect the Commission’s rights or obligations in a specific case. United States standards for reopening and modifying or vacating enforce the order. However, the filing of v. Storer Broadcasting Co., 351 U.S. 192, 205 (1956). orders pursuant to 15 U.S.C. 45(b) or 16 CFR 2.51. such a complaint would not affect the An agency may properly rely upon rulemaking to 10 The Commission states as follows in its 1994 order’s duration unless the order is in resolve certain classes of issues that the agency Policy Statement regarding the duration of force on the date the complaint is might otherwise adjudicate on an individual basis. competition orders: filed.11 In addition, the filing of such a Heckler v. Campbell, 461 U.S. 458, 467 (1982). As If, however, public comments, the Commission’s the court explained: experience enforcing the order, an ongoing antitrust complaint will not affect the duration of [E]ven where an agency’s enabling statute investigation of the petitioner or the industry in the order’s application to any expressly requires it to hold a hearing, the agency which the petitioner competes at the Commission respondent that is not named as a may rely on its rulemaking authority to determine or the Department of Justice, or other readily defendant in the complaint. The filing issues that do not require case-by-case available information raised substantial concerns consideration. * * * A contrary holding would about whether the public interest warrants retaining of such a complaint will only extent the require the agency continually to relitigate in a the order, such further review will be conducted as duration of those order provisions not single rulemaking proceeding. necessary to determine whether the public interest set to expire by their own terms. For Id. Under the Policy Statement, the Commission is best served by setting aside the order, modifying example, a reporting requirement in an does not propose to exercise any discretion it, or retaining it as written. The Commission regarding the termination of existing orders. To anticipates that, absent extraordinary existing order that terminates ten years apply the proposed criteria for terminating existing circumstances, the basis for rebutting the orders to any particular order, one need only presumption will be information that the petitioner 11 As discussed in fn. 8, supra, a five year statute ascertain a few facts, all of which are easily has engaged in recidivist conduct. of limitations applies to civil penalty actions filed ascertained and present no issues of fact requiring Id. at 45,286–87 (emphasis added). under section 5(1) of the FTCA. case-by-case examination. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42573 U.S.C. 1601–1667, and the Wool corporate culture may no longer warrant in consumer protection orders could Products Labeling Act, 15 U.S.C. 68. this extra caution and result in undermine the clarity of Commission Second, orders may require those competitive imbalances.14 orders, raising respondents’ cost of subject to them to keep records, At the same time, it can be argued that compliance and negotiating settlements distribute the order, or file reports with consumer protection orders should and Commission costs in ensuring the the Commission to facilitate remain in effect for a longer period than enforceability of its orders. By contrast, Commission efforts to monitor or competition orders. A principal as a general matter, competition orders enforce compliance with the order. rationale for sunsetting competition differentiate between core and fencing- Under the Commission’s existing orders was that even the core relief in in and supplemental relief. practice, Commission order provisions such orders may become outdated or Consequently, the Commission has that prohibit or require particular types inhibit pro-competitive conduct if, due determined that it is appropriate to of conduct to prevent ‘‘unfair or to changes in market conditions, the differentiate between consumer deceptive acts or practices’’ have prohibited conduct no longer protection and competition orders in different durations depending on their unreasonably restrains competition.15 A this respect by ordinarily sunsetting type. Core provisions prohibit practices number of commenters noted that both core and supplemental relief in that would be unlawful whether consumer protection orders, by contrast, consumer protection administrative engaged in by parties subject to the contain core prohibitions that remain orders after twenty years.18 valid regardless of marketing conditions order at issue or by other similarly Existing Orders situated persons or entities. Under (e.g., ‘‘cease misrepresenting’’).16 current policy, core provisions in Although supplemental relief in The Commission has determined that consumer protection orders typically consumer protection orders may share the new policy for terminating existing continue in force indefinitely, and a some attributes of supplemental relief in competition administrative orders respondent bears the burden of competition order,17 it often does not described above will also apply to establishing (in the context of a petition share the added problem of the related consumer protection administrative 19 to reopen) that such a provision should core relief becoming invalid due to orders. changed market conditions. be modified or set aside. Competition and Consumer Protection Thus, the Commission reasonably also All other provisions in consumer Federal Court Orders protection orders may be categorized as could have decided that the core and This new policy shall not apply to supplemental provisions,13 which are supplemental relief in consumer protection orders should remain in either competition or consumer intended to prevent a respondent or protection federal court orders. The defendant from repeating a law effect longer than that in competition orders (e.g., thirty years for core and Commission has determined not to do violation or to mitigate the effects of twenty years for supplemental). so for several reasons. Many consumer prior illegal conduct. Under existing However, the distinctions between protection federal court orders obtained policy, some supplemental provisions supplemental and core provisions in since the early 1980s pursuant to in consumer protection orders terminate consumer protection orders are not Section 13(b) of the FTCA address automatically after different prescribed always clearly delineated, suggesting particularly egregious conduct such as periods. For example, some advertising the need for a uniform sunset period. hard core fraud. Given that none of disclosure, order distribution, and For example, a provision may bar a these orders have been in force for reporting requirements expire in five or deceptive claim as deceptive, unless the twenty years, the Commission lacks ten years. claim is followed by a disclosure. It sufficient information to determine Future Orders could be argued that such ‘‘triggering’’ whether their remedial purposes will be provisions have both a core relief served within twenty years.20 Therefore, The Commission has concluded that component to them (barring a claim as the Commission has determined, at least there also is reason to sunset consumer deceptive) and a supplemental relief of now, not to sunset the core provisions protection orders. As commenters aspect to them (requiring a disclosure if noted, many older orders contain the claim is made). There may be 18 Only in an exceptional case will the supplemental relief that could become disagreements over whether to Commission adopt a sunset period longer or shorter over-regulatory over time or impose characterize such disclosures as than twenty years for core provisions The requirements that the Commission Commission does not intend to change, in general, supplemental or core relief if the policy would not adopt under current practice. the expiration periods of particular types of were to distinguish between the two, supplemental provisions that, as a matter of policy, There also are costs to perpetual core leading to anomalous results. have been set to expire by their own terms after provisions in consumer protection This resulting ambiguity regarding the periods of up to ten years such as: (1) orders. Basic prohibitions against characterization of particular provisions Administrative boilerplate (e.g., recordkeeping, misrepresenting or failing to have order distribution, and reporting requirements); and (2) some types of disclosure requirements (e.g., substantiation still require 14 Although it is true, as some comments point informercial disclosures that sunset after ten years; interpretation and may induce some out, that respondents subject to orders containing See TV Inc., Docket No. C–3296 (1990)). companies to be more cautious than over-regulatory provisions can petition the 19 The termination under the policy Statement of their competitions within the range of Commission to reopen and vacate such orders, the an order issued in connection with a determination filing of petitions entails costs for both respondents by the Commission that the respondent had permissible advertising practices. Over and the Commission. engaged in an unfair or deceptive practice would time, changes in management or 15 This is not true of those competition orders not affect the ability of the Commission to recover based on per se violations, such as price-fixing. a civil penalty based on that determination 13 The Commission may also impose or seek types However, a much larger proportion of consumer pursuant to Section 5(m)(1)(B) of the FTCA, 15 of relief in administrative orders that are not protection orders are based on core concepts that U.S.C. 45(n)(1)(B). addressed in this statement because they have no remain valid despite changes in market conditions. 20 The Commission notes that it does not have the further effect once the actions they require have 16 See comments of NAAG, AARP, and CSPI. power to unilaterally sunset federal court orders. been taken. For example, some orders require the 17 Supplemental relief in consumer protection Every federal court order must be entered by federal payment of redress to consumers, the payment of orders tends to be more detailed in its prohibitions court to become effective. In order to sunset an disgorgement to the United States Treasury, or the than core relief, and thus more potentially existing federal court order, one or more parties dissemination of corrective advertising for a limited burdensome. However, that is equally true of thereto would have to file a motion with the court time. supplemental relief in competition orders. seeking termination of the order. 42574 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices and some supplemental provisions in DEPARTMENT OF HEALTH AND become self-sufficient for which we these orders. HUMAN SERVICES believe additional experimentation In addition, many consumer would be especially useful. We have Administration for Children and protection federal court orders simply concluded that demonstrations testing Families these strategies are likely to provide prohibit violations of Commission trade important new information on ways to regulation rules (e.g., Disclosure Aid to Families With Dependent accomplish the objectives of the Social Requirements and Prohibitions Children Program: Demonstration Security Act more effectively and Concerning Franchising and Business Projects Under Section 1115(a) of the efficiently. This information can guide Opportunity Ventures, 16 CFR 436) or Social Security Act the development of both national and statutes otehr than the FTCA enforced AGENCIES: Office of the Secretary; state policy. by the Commission (e.g., Equal Credit Administration for Children and These strategies are: (1) Work Opportunity Act, 15 U.S.C. 1691). The Families (ACF), HHS. requirements, including limited core provisions in such orders are exemptions from such requirements; (2) ACTION: Public Notice. presumptively valid beyond twenty time-limited assistance for those who years in that they require adherence to SUMMARY: This public notice invites can work; (3) improving payment of regulations and statutes that are already States to submit demonstration project child support by requiring work for binding on the defendants as well as applications under section 1115(a) of those owing support; (4) requirements their competitors. Moreover, many of the Social Security Act to test welfare for minor mothers to live at home and these order do not contain supplemental reform strategies in various areas. It stay in school; and (5) public-private provisions other than those that, as a further advises that the Department partnerships under which AFDC grants matter of Commission policy, normally would commit to approving are diverted to private employers to terminate after up to ten years. applications that comply with the develop jobs and training programs. These areas, and approvable Therefore, there is no compelling reason demonstration components within 30 demonstration project provisions, are to sunset such orders. days of receipt. FOR FURTHER INFORMATION CONTACT: discussed in detail in section II below. Finally, most competition and some To date, the Department has approved Howard Rolston, Administration for consumer protection federal court a number of demonstration projects Children and Families, Department of orders simply prohibit violations of including components using one or Health and Human Services, 370 more of these strategies. We have Commission administrative orders. L’Enfant Promenade, 7th Floor, West reviewed comments submitted These federal court orders will cease to Wing, Washington, DC 20447, (202) regarding each of these strategies. Our have any effect once the underlying 401–9220. administrative orders are terminated overall judgment is that testing pursuant to this Policy Statement. SUPPLEMENTARY INFORMATION: additional demonstrations in each of Therefore, there is no compelling reason I. General these areas would likely promote to sunset these federal court orders. financial security for dependent Under Section 1115, the Department children within a stable family and, By direction of the Commission. of Health and Human Services (HHS) is thus, further the objectives of the Social Issued: August 7, 1995 given latitude, subject to the Security Act. (Specific rationales Donald S. Clark, requirements of the Social Security Act, justifying demonstrations in each policy to consider and approve demonstration Secretary. area are set out in section II.) Moreover, proposals that are likely to assist in in view of every state’s unique Concurring Statement of Commissioner promoting the objectives of titles IV–A circumstances, the Department believes Mary L. Azcuenaga Concerning Revised and B and XIX of the Act. The that it is critically important that each Statement of Policy On Duration of Department believes that State state be given the opportunity to test Commission Orders experimentation provides valuable combination(s) of these strategies that August 1995. knowledge that will help lead to are designed to address the needs of the The Commission today has approved a improvements in achieving the recipients in that state. revised statement issued in July, 1994, that purposes of the Act. Since January 1993, Accordingly, we plan to approve applied only perspectively and did not apply HHS has approved 33 welfare reform within 30 days of receipt demonstration to consumer protection orders. In 1994, when demonstration projects testing a broad project applications that States submit the Commission issued its statement, I wrote range of strategies designed to promote which would implement, on a statewide separately to say that the Commission should the objectives of title IV. or substate basis, any (or any apply a sunset policy to all its administrative The Department has reviewed the combination) of the provisions orders, both consumer protection and provisions of these projects, as well as discussed in section II. Further, because competition orders and existing and future those of prior projects, data from such projects may incorporate only the orders. I also expressed the view that the completed and continuing projects, provisions already announced in this Commission need not issue individual orders other literature evaluating the welfare notice, which have been found by the modifying or vacating existing orders but system, and the welfare reform Secretary to further the objectives of the easily could accomplish the same goal proposals being considered by Congress. Social Security Act, the Department will through publication of an appropriate notice Based on this review, and our not apply its ‘‘Federal Notice’’ in the Federla Register. I am gratified that commitment to transform the Aid to procedures generally applicable to today’s statement is fully consistent with Families With Dependent Children demonstration projects. 59 Fed. Reg. myv laws of a year ago and now, I am pleased system into one that provides maximum 49250 (1994). Other policies and to join the Commission in its current opportunities and incentives for procedures stated in that notice remain decision. families to achieve financial applicable, including state public notice [FR Doc. 95–20144 Filed 8–15–95; 8:45 am] independence, we have identified five requirements, rigorous evaluation, and strategies for improving the efficacy of cost neutrality, except that the BILLING CODE 6750±01±M the welfare system in helping recipients application and review process with Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42575 respect to the latter two requirements years on AFDC. Most recipients use the demonstration programs have will be modified to facilitate the faster AFDC program not as a permanent developed effective procedures to process. alternative to work, but as temporary identify eligible non-custodial parents assistance during times of economic and have established court-based II. Demonstration Project Areas and difficulty. processes to require fathers to Techniques While persons who remain on AFDC participate in work-based program A. Requiring People on Welfare to Work for long periods represent only a modest activities and to enforce regular and Providing Adequate Child Care to percentage of all people who ever enter participation. Preliminary data from Permit Them To Do It the system, they do represent a high PFS shows that the work and training proportion of those on welfare at any requirements provide states a promising Since Congress enacted the JOBS given time. Finding ways of helping mechanism to discover previously program in 1988, a central goal of the these persons become self-sufficient is unreported income of non-paying, non- AFDC program has been to move extremely important in promoting their custodial parents. Also, in the PFS sites, recipients into the labor force, while well-being and that of their children. as well as in other non-custodial parent ensuring that their children receive Although many face serious barriers to demonstration programs, title IV–D necessary child care while their parents employment, others are able to work but agencies have developed flexible and are in activities that promote self- are not moving in the direction of self- responsive child support enforcement sufficiency. There is a mounting body of sufficiency. systems to complement non-custodial evidence that mandatory activities Many analysts believe that time- parent work and training requirements. involving a connection with the work limited benefits would help to move Further testing of these requirements force can lead to substantial increases in employable welfare recipients toward will assist us in determining whether employment and earnings among work and away from reliance on this approach will result in increased welfare recipients. Studies of various welfare. There is not a large body of child support payments and will welfare-to-work approaches, conducted research in this area. Several states have enhance non-custodial parents’ overall over the past decade in different parts begun demonstrations of various forms support of their children. To build on of the country subject to different labor of time limits. More study is needed in the knowledge base being developed market conditions, have consistently order to know the effects of time limits. through PFS and similar shown significant gains in earnings. In For this reason, we are inviting demonstrations, we are inviting the most recent results, from three sites demonstrations that test the effects of demonstrations that require in the Department’s JOBS Evaluation, an systems of individualized time limits, unemployed or underemployed non- approach emphasizing job search, work systems of time limits followed by work, custodial parents who owe child activity, and short-term employment- preferably in the private sector, in support to work or participate in work focused training yielded a 23-percent subsidized work or community service experience, community service, or job increase in overall employment and a if necessary, and systems of straight preparation activities. 22-percent reduction in AFDC time limits, with exemptions from the expenditures at the two-year point, and time limit for those who, despite good D. Requiring Minor Mothers to Live at a 39-percent increase in employment faith efforts, are unable to work or find Home and Stay in School with earnings equivalent to at least a job. Consistent with the objectives of It has become increasingly important $10,000 per year. the Act, demonstrations must protect to obtain at least a high school diploma Although much is known in general families where the adult, through no in order to obtain employment and about the effectiveness of such fault of her or his own, is unable to find become self-sufficient. Moreover, a high programs, more study is needed employment. school diploma may be essential to concerning what works and which achieve a decent standard of living. approaches are most effective for which C. Requiring Fathers to Pay Child A study of teenage childbearing in the individuals. Therefore, we are inviting Support or go to Work to Pay Off What 1980’s found that in 1986 only 56 demonstrations that test the effects of They Owe percent of women in their twenties who requiring recipients to work in There is substantial evidence that had given birth at age 17 or younger had subsidized or unsubsidized jobs, to many custodial parents now receiving completed high school, compared with perform community service, or to AFDC would not need this support if over 90 percent of those who delayed engage in rigorous job search and job they received child support from the childbearing until after their teenage preparation. States can narrow the non-custodial parent. One of the years. Little has changed since then. categories of recipients that are exempt primary reasons for non-support by While we are beginning to obtain more from work requirements. They also can some non-custodial parents, especially knowledge of the types of programs that test the effects of progressively never-married fathers, is unemployment are successful in encouraging and increasing the sanctions for non- and underemployment. Many of these helping minor mothers finish high compliance, so that work requirements fathers need both assistance and school, we need to know considerably have more teeth. To protect children, incentives to obtain employment and more about what works. Therefore, states must ensure that child care is pay support. Without work demonstrations testing ways of helping available for those who are being requirements, job readiness assistance, minor parents complete schooling are required to work. job training, and community service, it extremely important. will be difficult for many of these Congress already has recognized that B. Setting Time Limits for Welfare fathers to contribute very much to the one means of helping minor parents Receipt, to be Followed by Work financial support of their children. complete school and meet the needs of Most of the people who enter the The available program evaluation their children is to have these young welfare system do not stay on AFDC for research focusing on non-custodial parents live with their own families. many consecutive years. Two out of parents indicates that a number of States now have the option of requiring three persons who enter the welfare programs show promise in assisting minor parents to live at home, provided system leave within two years and fewer these fathers to support their children. that this is a safe environment for them. than one in ten spends five consecutive The Parents’ Fair Share (PFS) To facilitate these arrangements, and to 42576 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices ensure that AFDC benefits are spent in applied on a larger scale, to increase the will, neither approve nor disapprove a manner that achieves the goals of the employment, earnings, and self- any component of the proposal for at Social Security Act, a number of states sufficiency of AFDC recipients. They least 30 days following the date of are experimenting with programs that also will provide important information receipt of the proposal to allow time to direct the AFDC payment to the regarding the degree to which consider comments, in addition, we will responsible adult, rather than to the employers respond to wage subsidies. neither approve or disapprove the minor mother. This strategy recognizes Therefore, we are inviting school attendance component for at the importance of promoting general demonstrations of systems where AFDC least 30 days following the date of this family responsibility. and Food Stamps benefits become notice. Direct comments as indicated Another strategy that has had success wages, paid by employers when below. in Ohio and several other demonstration recipients work, as long as the jobs meet ADDRESSES: For specific information or sites is setting up incentives and minimum standards, and families questions on the content of this project penalties for teen parents designed to receive at least as much total income as contact the State contact listed in II. have them stay in school. The recently they would have from AFDC and Food Comments on a proposal or requests completed study of Ohio LEAP found Stamps. States can choose to ask for copies of a proposal should be the program to be successful in employers to pay into an account to addressed to: Howard Rolston, increasing the rate at which teens who help the recipient make the transition Administration for Children and were already enrolled in school into unsubsidized employment. Families, 370 L’Enfant Promenade, remained enrolled and in increasing the Information on Application S.W., Aerospace Building, 7th Floor rate at which those who had already The Administration for Children and West, Washington DC 20447. Fax: (202) dropped out of school returned to high 205–3598 Phone: (202) 401–9220. school or an equivalent program. Families, will be mailing state welfare Further testing of this type of strategy departments a ‘‘Welfare Reform SUPPLEMENTARY INFORMATION: Demonstration: Special Application should enable us to determine whether I. Background these results can be replicated, and Form’’. This form should facilitate improved upon, in other settings and requests for waivers in the five specified Under Section 1115 of the Social through variations in program design. areas. Requests for further information Security Act (the Act), the Secretary of For these reasons, we are inviting and/or forms should be addressed to Health and Human Services (HHS) may demonstrations that require minor Howard Rolston at the address listed approve research and demonstration mothers to live with parents or relatives above. Additionally, by August 21, project proposals with a broad range of or in a supervised living situation, as 1995, states can obtain information on policy objectives. long as the home is not dangerous to the the waiver process and on electronic In exercising her discretionary physical or emotional health or safety of filing of waiver applications on the authority, the Secretary has developed a the minor; that direct the AFDC internet. On the world wide web, the number of policies and procedures for payment to the responsible adult, rather URL (universal resource locator) is reviewing proposals. On September 27, than to the minor mother; and that http://www.acf.dhhs.gov. Gopher users 1994, we published a notice in the require minor mothers to stay in school can use gopher.acf.dhhs.gov. Federal Register (59 FR 49249) that specified (1) the principles that we and utilize reasonable sanctions and (Catalog of Federal Domestic Assistance incentives tied to school attendance. Program, No. 93562; Assistance Payments— ordinarily will consider when Research) approving or disapproving E. Paying the Cash Value of Welfare and demonstration projects under the Food Stamps to Private Employers as Dated: August 11, 1995. Mary Jo Bane, authority in section 1115(a) of the Act; Wage Subsidies When They Hire People (2) the procedures we expect States to Assistant Secretary for Children and Families. Who Leave Welfare and Go To Work use in involving the public in the The effectiveness of subsidized [FR Doc. 95–20294 Filed 8–15–95; 8:45 am] development of proposed demonstration employment in increasing employment, BILLING CODE 4184±01±P projects under section 1115; and (3) the earnings, and self-sufficiency has been procedures we ordinarily will follow in studied over the last 20 years. A number Pending Demonstration Project reviewing demonstration proposals. We of rigorously evaluated programs have Proposal Submitted by Florida are committed to a thorough and shown positive effects on increasing the Pursuant to Section 1115(a) of the expeditious review of State requests to earnings of welfare recipients who Social Security Act conduct such demonstrations. participated in them. This was also II. Pending Proposal Received From found to be true in the more recent AGENCY: Administration for Children Florida national evaluation of the Job Training and Families, HHS. Partnership Act program. ACTION: Notice. Project Title: Florida—Family By combining AFDC and Food Stamp Transition Program (Amendments). benefits, a state could create a very SUMMARY: This notice describes a new Description: Would expand the substantial subsidy that encourages proposal for a combined welfare reform/ Family Transition Program employers to hire AFDC recipients. This Medicaid demonstration project demonstration, currently operating in form of wage subsidy has the potential submitted to the Department of Health two counties, to six additional counties. of increasing the number of recipients and Human Services. Federal approval The demonstration limits, with some who are able to obtain unsubsidized for the proposal has been requested exceptions, AFDC benefits to 24 months employment. pursuant to section 1115 of the Social in any 60-month period followed by Subsidized employment has generally Security Act. participation in transitional been a very small scale activity within COMMENTS: We will accept written employment. For families subject to the the JOBS program. Demonstrations comments on this proposal. We will, if time limit, it replaces current $90 and using AFDC and Food Stamp benefits feasible, acknowledge receipt of all $30 and one-third disregards with a would provide important information comments, but we will not provide single, non-time-limited disregard of on the ability of this approach, when written responses to comments. We $200 plus one-half of the remainder; Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42577 disregards income of a stepparent whose FOR FURTHER INFORMATION CONTACT: 4. Puerto Rico—Radisson Normandie needs are not included in the assistance Marquita B. Steadman, Center for Hotel, Avenida Munoz Rivera, Esquina unit for the first 6-months of receipt of Devices and Radiological Health (HFZ– Rosales, San Juan, PR. public assistance; excludes summer 84), Food and Drug Administration, 5. Los Angeles—Continental Plaza, Los earnings of teens and interest income; 2098 Gaither Rd., Rockville, MD 20850, Angeles Airport, 9750 Airport Blvd., Los lowers age of child for JOBS exemption 301–594–4765. Angeles, CA. (PLEASE NOTE: Location to 6-months; raises asset limit to $5,000 In FR Doc. 95–14059, appearing on changed since July 19, 1995, ‘‘Dear plus a vehicle of reasonable worth used page 30310 in the Federal Register of Colleague letter.’’) primarily for self-sufficiency purposes; Thursday, June 8, 1995, the following FOR FURTHER INFORMATION CONTACT: extends transitional Medicaid and child corrections are made: On page 30310, in Regarding registration for the Dallas care benefits; eliminates 100-hour and the second column, under the SUMMARY public workshop: Belinda Collins, required quarters of work rules, and (on caption, in the fourth line, and under Food and Drug Administration, a case-by-case basis) the 6-month time the SUPPLEMENTARY INFORMATION Southwest Region, 7920 Elmbrook limit requirements in the AFDC-UP caption, in the second line, insert Rd., Dallas, TX 75247–4982, 214– program; requires school conferences ‘‘Rhys, Bryant, U.S. representative for’’ 655–8100, ext. 148 or FAX 214– and regular school attendance; offers before ‘‘Chartex International plc, 655–8103. incentive payments to private London, U. K.,’’. Regarding registration for the employers who hire hard-to-place AFDC Dated: August 8, 1995. Charlotte public workshop: Barbara recipients; and allows non-custodial Joseph A. Levitt, Ward-Groves, Food and Drug parents of AFDC children to participate Deputy Director for Regulations Policy, Center Administration, Southeast Region, in JOBS. Statewide, the demonstration for Devices and Radiological Health. 60 Eighth St. SE., Atlanta, GA requires immunizations of pre-school- [FR Doc. 95–20313 Filed 8–15–95; 8:45 am] 30309, 404–347–4001, ext. 5256 or age children. FAX 404–347–4349. BILLING CODE 4160±01±F Dated Received: 8/2/95. Regarding registration for the Fort Type: Combined AFDC/Medicaid. Mitchell public workshop: Pat Current Status: New. Medical Devices; Mammography Wolfzorn, Food and Drug Contact Person: Don Winstead, (904) Facilities Education and Training; Administration, Mid-Atlantic 921–5567. Notice of Public Workshops Region, 1141 Central Pkwy., III. Requests for Copies of a Proposal Cincinnati, OH 45202–1097, 513– AGENCY: Food and Drug Administration, 684–3501, ext. 102 or FAX 513– Requests for copies of this proposal HHS. 684–2905. should be directed to the ACTION: Notice of public workshops. Regarding registration for the San Administration for Children and SUMMARY: The Food and Drug Juan public workshop: Nilda E. Families (ACF) at the address listed Administration (FDA) (Office of Villegas, Food and Drug above. Questions concerning the content Regulatory Affairs, Office of External Administration, Southeast Region, of the proposal should be directed to the Affairs, and Center for Devices and P. O. Box 5719, Puerta de Tierra State contact listed for the proposal. Radiological Health) is sponsoring five Station, 809–729–6852 or FAX 809– (Catalog of Federal Domestic Assistance grassroots workshops on FDA 729–6847. Program, No. 93562; Assistance Payments— requirements for compliance with the Regarding registration for the Los Research). Mammography Quality Standards Act of Angeles public workshop: Mark Dated: August 11, 1995. 1992 (the MQSA). These workshops are Roh, Food and Drug Howard Rolston, designed to assist mammography Administration, Pacific Region, Director, Office of Policy and Evaluation. facilities in complying with the Oakland Federal Bldg., 1301 Clay [FR Doc. 95–20293 Filed 8–15–95; 8:45 am] regulations that went into effect on St., suite 1180–N, Oakland, CA 94612–5217, 510–637–3980 or FAX BILLING CODE 4184±01±P October 1, 1994. DATES: The public workshops are 510–637–3977. scheduled as follows: Those persons interested in attending a workshop should register by FAXing Food and Drug Administration 1. Thursday, August 17, 1995, 8 a.m. to their name, firm name, address, and 4:30 p.m., Dallas, TX. [Docket No. 95M±0119] telephone number to the information 2. Thursday, August 24, 1995, 8 a.m. to contact person listed above for their Chartex International plc; Premarket 4:30 p.m, Charlotte, NC. region. There is no registration fee for Approval of Femidom Female 3. Wednesday, September 6, 1995, 8 these workshops, but advance Condom; Correction a.m. to 4:30 p.m., Fort Mitchell, KY. registration is required. Interested AGENCY: Food and Drug Administration, 4. Thursday, September 21, 1995, 8 a.m. parties are encouraged to register early HHS. to 4:30 p.m., San Juan, PR. because space is limited. ACTION: Notice; correction. 5. Thursday, September 28, 1995, 8 a.m. SUPPLEMENTARY INFORMATION: FDA will to 4:30 p.m., Los Angeles, CA. conduct training for mammography SUMMARY: The Food and Drug ADDRESSES: The public workshops will facilities designed to assist those Administration (FDA) is correcting a be held at the following locations: facilities in complying with the notice that appeared in the Federal requirements of the MQSA. Those Register of June 8, 1995 (60 FR 30310). 1. Dallas—Harvey Hotel, 400 North requirements went into effect October 1, The document announced the approval Olive, Dallas, TX. 1994. Emphasis will be placed on of the premarket approval application 2. Charlotte—New Charlotte Convention educational requirements, training, and for the Femidom Female Condom. The Center, 501 South College St., Charlotte, providing assistance to small business document was published with some NC. in meeting the MQSA requirements. errors. This document corrects those 3. Fort Mitchell—Drawbridge Estates, These meetings are being held, in part, errors. 2477 Royal Dr., Fort Mitchell, KY. as a response to the National 42578 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Performance Review initiative that individuals may submit one copy. print size and style of OTC drug product implementing the President’s Grassroots Comments are to be identified with labeling. In the Federal Register of Regulatory Partnership Meetings. These Docket No. 95N–0259. Transcripts of the March 6, 1991 (56 FR 9363), the agency workshops are made possible by hearing will be available for review at sought comments on this petition and funding from the Office of Women’s the Dockets Management Branch other issues related to label legibility Health. (address above). Information specified and readability. FDA received many Dated: August 14, 1995. in this notice can be received by calling comments criticizing the print size and William K. Hubbard, 301–594–5000 or sending a self- complexity of current OTC drug labels Acting Deputy Commissioner for Policy. addressed stamped envelope with your and labeling. request to the contact person listed [FR Doc. 95–20374 Filed 8–14–95; 12:11 pm] The Nonprescription Drug below. BILLING CODE 4160±01±F Manufacturers Association (NDMA) has FOR FURTHER INFORMATION CONTACT: developed ‘‘Label Readability Michael D. Kennedy, Center for Drug Guidelines’’ (NDMA Guidelines) for its [Docket No. 95N±0259] Evaluation and Research (HFD–820), members to use for guidance in Food and Drug Administration, 7520 Over-the-Counter Drug Labeling; designing OTC drug labels. These Standish Pl., Rockville, MD 20857, 301– guidelines have served to provide Public Hearing 594–1006. advice on improving the legibility of AGENCY: Food and Drug Administration, SUPPLEMENTARY INFORMATION: OTC drug labeling. Copies of the NDMA HHS. I. Background guidelines are available from FDA by ACTION: Notice of public hearing; request calling or writing the contact person Under the Federal Food, Drug, and for comments. listed above. FDA commends the drug Cosmetic Act (the act), FDA has the SUMMARY: The Food and Drug responsibility to help ensure the safety industry for recognizing the need to Administration (FDA) is announcing a and effectiveness of OTC drug products improve OTC drug labeling features and public hearing to discuss over-the- and to regulate their labels and labeling. for initiating voluntary readability counter (OTC) drug labeling issues. The The agency is engaged in an ongoing guidelines. FDA, however, is firmly purpose of the hearing is to solicit comprehensive review of the thousands committed to further improving OTC information and views concerning of OTC drug products available to drug labels and labeling and making various aspects of OTC drug labeling consumers without a prescription. As a them easier to read and understand. To design that would improve the result of that review, the agency has date, the agency primarily has worked communication of information to required, through notice-and-comment with manufacturers and consumers in consumers. The agency is particularly rulemaking, specific language to be this effort. In January 1995, FDA staff interested in hearing from individuals, included in the labeling of many OTC served as chairpersons and participated industry, consumer groups, health drug products, which describes the in a workshop with the Drug professionals, and researchers with uses, directions, warnings, drug Information Association to discuss OTC expertise in communicating information interactions, precautions, active drug labeling. The workshop was to consumers, skills in design, and ingredients, and other information that attended by consumers, industry, insight into consumer needs and desires a consumer would need to know to use government officials, and academicians. with respect to OTC drug labeling. In the product safely and effectively. The purpose was to explore addition, the agency is soliciting written With escalating health care costs and perspectives on how to communicate comments and/or data on the costs and the OTC availability of more products OTC drug information more effectively benefits of an improved labeling format. once obtainable only by prescription, to consumers through product labeling. DATES: The public hearing will be held self-medication is on the rise. As part of this ongoing effort to on September 29, 1995, from 8 a.m. to Consequently, it is increasingly improve OTC drug labeling, FDA is 3 p.m. Mail or FAX notices of important that consumers read, examining different formats that could participation to be received by FDA by understand, and behave in accordance be used to communicate drug September 15, 1995. The with the information on OTC drug information to consumers in a more Nonprescription Drugs Advisory labels and labeling. effective manner. FDA is now also Committee will meet from 3 p.m. to 4 FDA regulations require that the OTC examining the question of whether a p.m., following the public hearing. This drug product labeling present and standardized format would aid in meeting will be open to the public. display information in such a manner as achieving the goals of improved Written comments will be accepted to render it ‘‘likely to be read and communication. The Part 15 hearing until December 29, 1995. understood by the ordinary individual, announced in this notice is intended to ADDRESSES: including individuals of low The public hearing will be seek public comment on various issues held at the Parklawn Bldg., conference comprehension, under customary specifically related to the format of OTC rooms D and E, 5600 Fishers Lane, conditions of purchase and use.’’1 (21 drug labeling. In order to further Rockville, MD 20857. Submit written CFR 330.10(a)(4)(v)). Despite this understand consumer needs for OTC notices of participation and comments regulation, many consumers have label design, FDA is also seeking public to the Dockets Management Branch complained that OTC drug labels are comments regarding consumer use and (HFA–305), ATTN: OTC Drug Labeling difficult to understand and that the Hearing, Food and Drug Administration, print size is too small. For example, in behavior related to OTC drug labeling. rm. 1–23, 12420 Parklawn Dr., 1991, FDA received a citizen’s petition The agency also recognizes that the Rockville, MD 20857, or FAX written requesting regulatory standards for the terms and text required on OTC drug notices of participation and comments labeling could be improved to make the to the Dockets Management Branch, 1 Consistent with the act, ‘‘labeling’’ refers to ‘‘all information easier to understand. The labels and other written, printed, or graphic matter agency intends to hold one or more ATTN: OTC Drug Labeling Hearing, (1) upon any article or any of its containers or 301–594–3215. Two copies of any wrappers, or (2) accompanying such article.’’ (21 public meetings in the near future to comments are to be submitted, except U.S.C. 321(m)). discuss these issues. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42579 II. Scope of the Hearing (2) Currently, there are no required is to enable the public to readily observe In light of the many complex minimum standards for type size or and comprehend nutrition information scientific and public health issues other label design features for OTC drug and to understand its relative involved in communicating OTC drug labeling. Section 502(c) of the act (21 significance in products. FDA information to consumers, FDA is U.S.C. 352(c)) states that the information recognizes that the type of information soliciting broad public participation and must appear with such listed on food labels is different in some comment on OTC drug labeling format ‘‘conspicuousness * * * as to render it respects from the type of information on issues and information regarding likely to be read and understood by the OTC drug labeling. The agency also consumer use and behavior related to ordinary individual under customary recognizes that standardization may OTC drug labeling. The agency conditions of purchase * * *.’’ As stated inhibit flexibility in designing labeling. encourages individuals, industry, earlier in this notice, many consumers Nonetheless, FDA believes that consumer groups, health professionals, have written the agency complaining standardization of format would help and researchers with particular that the type size on many OTC drug consumers know what information to look for and where to find it. What expertise in this area, as well as other products is so small that they cannot benefits to the communication of interested persons, to respond to this read the information. Since then, the information would a uniform, notice. The agency strongly encourages industry has taken strides to make OTC standardized OTC drug labeling format persons who cannot attend the hearing labeling more legible. The NDMA provide to the consumer? What other to send information relevant to the Guidelines set forth a voluntary benefits would a uniform, standardized topics and questions listed below to the minimum type size of 6 point for most OTC drug packages and 4.5 point for format provide to the consumer? Dockets Management Branch (address (2) FDA recently approved switches above). Comments should be identified small packages. By comparison, newspaper type size is usually 9 to 10 from prescription to OTC status for two with Docket No. 95N–0259. similar drugs intended to treat Topics and questions to be considered point. Should OTC drug labeling on currently marketed products be more heartburn and acid indigestion. Each during the hearing include: product’s labeling was designed by the A. Consumer Use of OTC Drug Labeling legible? Should FDA set minimum standards for type size for OTC drug manufacturer with the intention of (1) What information is available that providing maximum communication of characterizes consumer use of OTC drug labeling? If so, what should the standards be? Should the standards vary information, yet the labeling formats labeling? For example, surveys and used for the two products are very studies that require consumers to depending on the size of the label? What about particularly small packages? different. Also, a major OTC drug maintain diaries about their choice and pharmaceutical company recently has use of OTC drugs have been performed (3) Currently, there are no required minimum standards for other factors redesigned its labels, using a different to measure consumer use of OTC drugs. format. (Examples of these labels are To what extent do these and other that affect the communication of information on OTC drug labeling, such available from FDA by calling or writing studies indicate the sources of the contact person listed above.) Is it information consumers use, such as as color, contrast, type style, spacing, and white space. Should FDA set desirable to have a uniform format for OTC drug labeling, when deciding OTC drug labeling to convey drug whether to use an OTC drug product minimum standards for these features? If so, what should the standards be? In information or should manufacturers (rather than consulting a physician or have the flexibility to utilize a few addition, there are no standards for trying a nondrug remedy)? different formats or should any format factors that affect readability, such as (2) What studies exist describing be acceptable to convey this use of uppercase and lowercase letters, whether consumers understand product information? labeling that may be applicable to OTC instead of all uppercase, and use of (3) If the OTC drug labeling format drug products (e.g., information boldface and other highlighting were standardized, what features should provided on or with consumer products techniques. Should FDA set minimum be made consistent on all labeling (e.g., other than OTC drug products)? To what standards for these features? If so, what order of information, major headings or extent do consumers rely on OTC drug should they be? What other drug subheadings for information, use of labeling information when choosing labeling design features are needed to lines or boxes around information, among competing products and when improve legibility (e.g., would reducing certain labeling statements)? actually using an OTC drug product the amount of information on the label (4) Headings are often used to signal (e.g., consulting directions for use)? improve information communication by where particular information can be (3) How would one expect label usage allowing for increased white space found. If OTC drug labeling were to vary with the type of product and between lines of text, layout, or design standardized, what headings are consumer characteristics that affect the of information)? suitable for the information placed on communication of information, such as (4) How do label features, such as the OTC drug label? Current headings literacy level, vision ability, etc.? type size, type style, contrast, spacing, use ‘‘key words,’’ such as ‘‘active B. Legibility of OTC Drug Labeling etc., influence consumers’ attention to ingredients,’’ ‘‘uses,’’ ‘‘directions,’’ (1) What features of OTC drug and ‘‘willingness to read’’ the OTC drug ‘‘warnings,’’ ‘‘inactive ingredients.’’ Are labeling design should be considered to labeling? How critical is this aspect for key word headings suitable for OTC assure that labeling is legible to information processing (i.e., how do drug labeling? Would different headings consumers? Should a performance OTC drug labeling design features be desirable, such as those in ‘‘Question standard be used to assure legibility (for influence consumer motivation to read and Answer’’ style, (e.g., ‘‘What is in example, should labeling be considered the label)? [name of drug]?,’’ ‘‘What is [name of acceptably legible only if a certain C. OTC Drug Labeling Design Features drug] used for?’’ ‘‘How do I use [name percentage of consumers with defined (1) The agency recently imposed a of drug]?’’ ‘‘What should I be aware of vision ability, under defined lighting standardized format for labels on food about [name of drug]?’’ ‘‘When should I levels, correctly perceive a products, pursuant to the Nutrition not use [name of drug]?’’) Considering predetermined level of labeling Labeling and Education Act of 1990. size constraints of OTC drug labels, information)? The purpose of the standardized format should the information required in OTC 42580 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices drug labeling have a title such as labeling, they may not comprehend the Commissioner of Food and Drugs or his ‘‘DRUG FACTS’’ to distinguish it from content of this labeling. What design designee. The presiding officer will be other information in the labeling that is features need to be considered to make accompanied by a panel of Public not required, yet is useful for the labeling information understandable? Health Service employees with relevant consumer, e.g., claims of pleasant taste, (2) A number of guidances for expertise. 1–800 telephone number for designing labeling text are available, Persons who wish to participate in the information, money back guarantee including test methods for evaluating part 15 hearing must file a written or information? readability, computer programs for facsimile notice of participation with (5) Is the order of information placed improving grammar, and manuals for the Dockets Management Branch on the label important? If so, if OTC labeling format design are available. (address or FAX number above) by drug labeling format were standardized, How should these guidances be used to September 11, 1995. To ensure timely what order of information is most design comprehensible text for OTC handling, the outer envelope should be appropriate? (e.g., active ingredient, drug labeling? To what extent can one clearly marked with Docket No. 95N– indications for use, directions for use, rely on these guidances to assure 0259 and the statement ‘‘OTC Drug warnings, precautions, drug consumer comprehension? Labeling Hearing.’’ Groups should interactions, inactive ingredients, (3) For certain drug products that submit two copies. The notice of storage information, description of have been switched from prescription to participation should contain the tamper resistant feature(s), 1–800 OTC status, the agency has asked the speaker’s name, address, telephone telephone number, UPC bar code) applicant to conduct studies of number, FAX number, business (6) Symbols, pictograms, and icons consumer comprehension of the affiliation, if any, a brief summary of the that describe the text are sometimes proposed OTC drug labeling prior to presentation, and approximate amount used on OTC drug products to call approval of the switch. What testing of time requested for the presentation. attention to, or represent, certain methods are most useful for these types The agency requests that persons or information about the product. For of comprehension studies? groups having similar interests example, to call attention to the E. Behavioral Issues consolidate their presentations and standard warning ‘‘As with any drug, if (1) As more prescription drug present them through a single you are pregnant or nursing a baby, seek products are considered for OTC representative. FDA will allocate the the advice of a health professional switches, consumers are being asked to time available for the hearing among the before using this product,’’ some make more complicated judgments persons who properly file notices of manufacturers place next to the text a about the appropriateness of these participation. If time permits, FDA may pictogram, which is a circle enclosing a products for their personal use. For allow participation at the conclusion of silhouette of a pregnant woman with a example, certain products are approved the hearing from interested persons line crossing the circle. This pictogram, for OTC use only for recurrence of a attending the hearing who did not however, could be interpreted to mean condition that was initially diagnosed submit a written notice of participation. that the product prevents pregnancy. by a physician. To what extent can OTC After reviewing the notices of Thus, pictograms and icons may or may drug labeling influence consumer participation and accompanying not be clear in their representation and judgments and behaviors that are information, FDA will schedule each may confuse the consumer. If the OTC necessary for the safe and effective use appearance and notify each participant drug labeling format were standardized, of these products? Does OTC drug by mail, telephone, or FAX, of the time are there any particular pictograms and labeling need to contain persuasive allotted to the person and the icons that should be used on OTC drug messages to encourage behavioral approximate time the person’s labeling? If used, how can consumer compliance with the directions for use? presentation is scheduled to begin. The confusion as to their meaning be (2) How can FDA be assured that the hearing schedule will be available at the reduced? labeling is sufficient to ensure safe and hearing. After the hearing, the schedule (7) If OTC drug labeling format were effective use of the OTC drug product? will be placed on file in the Dockets standardized, should different types of What types of testing methods need to Management Branch (address above) information be separated in the labeling, be used, and under what conditions, to under Docket Number 95N–0259. using techniques such as boxing and measure the ability of OTC drug labeling Under § 15.30(f), the hearing is bold lines? If so, where and when to communicate important information informal and the rules of evidence do should boxes/lines be used? How would to consumers and influence behavior? not apply. The presiding officer and any distinguishing between different types (3) Since consumers vary panel members may question any of information in this way benefit considerably in their literacy level and person during or at the conclusion of consumers? in their ability to read and understand their presentation. No other person (8) Should any other features be OTC drug labeling, how can FDA be attending the hearing may question a considered for standardization? assured that the effects of any labeling person making a presentation or (9) In 1994, FDA staff from the Office studies are generalizable to the interrupt the presentation of a of OTC Drug Evaluation presented an population of potential users of the participant. early prototype format for OTC drug product? What additional consumer Public hearings under part 15 are labeling to FDA’s Nonprescription characteristics need to be considered to subject to FDA’s guideline (21 CFR part Drugs Advisory Committee for assure label comprehension and usage 10, subpart C) concerning the policy and comment. Copies of some mock-ups measures are applicable to the universe procedures for electronic media using the prototype format are available of consumers? coverage of FDA’s public administrative by calling or writing the contact person proceedings. Under § 10.205, listed above. What features of the format III. Notice of Hearing Under 21 CFR representatives of the electronic media are desirable? What features of the Part 15 may be permitted, subject to certain format could be improved? The Commissioner of Food and Drugs limitations, to videotape, film, or D. Consumer Comprehension is announcing that the public hearing otherwise record FDA’s public (1) Even if consumers can perceive will be held in accordance with 21 CFR administrative proceedings, including and are willing to read OTC drug part 15. The presiding officer will be the presentations by participants. The Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42581 hearing will be transcribed as required [Docket No. 95N±0227] ‘‘written, printed, or graphic’’ materials in § 15.30(b). Orders for copies of the ‘‘accompanying’’ a regulated product. transcript can be placed at the meeting Direct-to-Consumer Promotion; Public The Supreme Court has agreed with the or through the Dockets Management Hearing agency that this definition is not limited Branch (address above). AGENCY: Food and Drug Administration, to materials that physically accompany Any disabled persons requiring HHS. a product. The Court has deemed the special accommodations in order to ACTION: Notice of public hearing; request textual relationship between the attend the hearing should direct those for comments. materials and the products to be needs to the contact person listed above. fundamental (Kordel v. United States, SUMMARY: The Food and Drug 335 U.S. 345, 349–350 (1948)). In its To the extent that the conditions for Administration (FDA) is announcing a regulations, FDA has given examples of the hearing, as described in this notice, public hearing regarding direct-to- things that it regards as labeling, conflict with any provisions set out in consumer promotion of prescription including brochures, mailing pieces, part 15, this notice acts as a waiver of drugs. The purpose of the hearing is to calendars, price lists, letters, motion those provisions as specified in solicit information from, and the views picture films, sound recordings, and § 15.30(h). of, interested persons, including health literature (§ 202.1(l)(2) (21 CFR To permit time for all interested care professionals, scientists, 202.1(l)(2)). Although the act does not persons to submit data, information, or professional groups, and consumers, on define what constitutes a prescription views on this subject, the administrative the issues and concerns relating to the drug ‘‘advertisement,’’ FDA generally record of the hearing will remain open promotion of prescription drug products interprets the term to include following the hearing until December directly to consumers through print, information (other than labeling) that is 29, 1995. broadcast, and other types of media. sponsored by a manufacturer and is intended to supplement or explain a IV. Additional Request for Information FDA is particularly interested in hearing the views of the groups most affected by product. This includes, for example, In order to assess the costs and direct-to-consumer promotion, ‘‘advertisements in published journals, benefits of enhanced OTC drug product including patients, caretakers, magazines, other periodicals, and labeling, written submissions to FDA on physicians, physicians’ assistants, newspapers, and advertisements the following topics would be helpful: nurses, pharmacists, managed care broadcast through media such as radio, organizations, and insurers. television, and telephone (1) How frequently do companies communication systems’’ (§ 202.1(l)(1)). reprint OTC drug product labels and DATES: The public hearing will be held on October 18, 1995, from 8:30 a.m. to If an activity or material is considered labeling? How frequently are labels to be either advertising or labeling, it redesigned? 5:30 p.m., and October 19, 1995, from 8:30 to 12:30 p.m. Submit written must meet certain requirements. (2) What are the itemized costs notices of participation by September Labeling must contain adequate directions/information for use that is the involved in changing OTC drug labels 15, 1995. Written comments will be ‘‘same in language and emphasis’’ as the and labeling (e.g., design, plate, accepted until December 29, 1995. reprinting, additional colors)? product’s approved or permitted ADDRESSES: The public hearing will be labeling (21 U.S.C. 352(f)) and 21 CFR (3) If FDA were to propose a new OTC held at the Quality Hotel—Silver drug labeling format, what strategies 201.100(d)). This requirement is Spring, 8727 Colesville Rd., Silver generally fulfilled by including the full could be used to lessen the cost to Spring, MD. Submit written notices of industry? For example, what lead time approved labeling for the product (the participation and comments to the ‘‘package insert’’) with the promotional would allow manufacturers to use up Dockets Management Branch (HFA– existing labeling inventories? materials. The act specifies that, in 305), Food and Drug Administration, addition to the identity of the product (4) What are the benefits to consumers rm. 1–23, 12420 Parklawn Dr., and its quantitative composition, from improvements in OTC drug Rockville, MD 20857. Two copies of any advertisements must contain ‘‘other labeling? comments are to be submitted, except information in brief summary relating to Written comments addressing cost that individuals may submit one copy. side effects, contraindications, and components should address, where Comments are to be identified with effectiveness * * *’’(21 U.S.C. 352(n)). applicable, one-time versus annual docket number 95N–0227. Transcripts FDA further defines this latter costs, differences in brand versus of the hearing will be available for requirement in § 202.1(e). This private-label costs, and implications for review at the Dockets Management requirement is generally fulfilled by small businesses. The agency is most Branch (address above). including the sections of the approved interested in cost data expressed in FOR FURTHER INFORMATION CONTACT: Lee labeling that discuss the product’s dollars, staff hours, and personnel L. Zwanziger, Center for Drug adverse event profile, contraindications, (professional, technical, or support). Evaluation and Research (HFD–9), Food warnings, and precautions. In addition, Quantitative measures of benefits are and Drug Administration, 5600 Fishers the act and regulations specify that considered most desirable, but Lane, Rockville, MD 20857, 301–443– drugs are deemed to be misbranded if discussions of anecdotal and/or 4695. their labeling or advertising is false or qualitative benefits are also welcomed. SUPPLEMENTARY INFORMATION: misleading in any particular or fails to reveal material facts (21 U.S.C. 352(a) Submit comments to the Dockets I. Background Management Branch (address above) and 321(n) and § 202.1(e)). identified with Docket No. 95N–0259. Under the Federal Food, Drug, and Cosmetic Act (the act), FDA has A. History of Direct-to-Consumer Dated: August 10, 1995. responsibility for regulating the labeling Promotion William B. Schultz, and advertising (promotional activities) The practice of promoting Deputy Commissioner for Policy. for prescription drugs. Under section prescription drug products directly to [FR Doc. 95–20245 Filed 8–15–95; 8:45 am] 201(m) of the act (21 U.S.C. 321(m), consumers began to gain popularity in BILLING CODE 4160±01±F labeling is defined to include all the early 1980’s. Until that time, drug 42582 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices manufacturers had typically limited educational value and will improve the consult a health care provider, when their promotion to health care physician-patient relationship, increase appropriate, while excluding professionals. With the onset of direct- patient compliance with drug therapy discussions of specific treatments or to-consumer promotion, the and physician visits, and lower drug drugs; and (3) ‘‘reminder,’’ containing effectiveness of the regulatory scheme, prices. Opponents contend that the name of the drug and other limited was called into question. consumers do not have the expertise to information, but excluding all To explore the ramifications of direct- accurately evaluate and comprehend representations or suggestions about the to-consumer prescription drug prescription drug advertising. drug(s). promotion, FDA requested a voluntary Opponents also argue that such moratorium on this practice in a promotion is misleading by failing to 3. Product-Claim September 2, 1983 policy statement. adequately communicate risk Product-claim promotional materials During the moratorium, FDA sponsored information, and that such promotion contain safety and efficacy claims about a series of public meetings and will damage the physician-patient a specific prescription drug product. conducted research. In 1984, a relationship, increase drug prices, The regulations require that these symposium, jointly sponsored by the increase liability actions, and lead to materials present a balanced view of the University of Illinois and Stanford over-medication and drug abuse. drug (§ 202.1(e)(5)(ii)). Claims of drug Research Institute (SRI), was held to Rigorous studies are needed to assess benefits, such as safety and efficacy, discuss consumer-directed prescription the actual effects of direct-to-consumer must be balanced with relevant drug advertising from a broad research promotion and to help guide future disclosures of risks and limitations of and policy perspective. In the Federal policy. efficacy. This balanced presentation of Register of September 9, 1985 (56 FR In the last few years, FDA has drug therapy is commonly referred to as 36677), the moratorium was withdrawn received a number of citizen petitions ‘‘fair balance.’’ in a notice, which stated that the current that address direct-to-consumer Currently, most consumer-directed regulations governing prescription drug promotion. The positions advocated by product-claim materials are limited to advertising provide ‘‘sufficient these petitions vary considerably. One one drug product and do not compare safeguards to protect consumers.’’ petition requests that FDA ban direct-to- drugs, or classes of drugs, with each Since 1985, FDA has applied the act consumer advertising of prescription other. Proponents of this and the prescription drug advertising drugs. A second petition requests that noncomparative format argue that regulations to both professional and FDA not adopt or institute any consumers do not have the contextual consumer-directed promotion on a case- significant new restrictions to existing knowledge required to critically by-case basis. There are no regulations regulations nor mandate prior approval evaluate comparative claims. Opponents that pertain specifically to consumer- of consumer-directed advertising. A contend that consumers could evaluate directed promotional materials. FDA third petition, recently updated and comparative claims that are properly reissued by the petitioner, contends that recognizes and accounts for the framed and fairly balanced. differences between health care consumer-directed prescription drug professionals and consumers as advertising should not be regulated 4. Help-Seeking under § 202.1, and it also contends that recipients of drug promotion, such as Help-seeking promotional materials FDA should promulgate new regulations differences in medical and encourage consumers with particular to address prescription drug pharmaceutical expertise, perception of symptoms, conditions, or diseases to advertisements directed to consumers. pharmaceutical claims, and information consult their doctor to discuss general The petitioner further contends that, processing. For this reason, FDA has treatment options, but do not mention until such time as new regulations are monitored direct-to-consumer specific prescription drug products. established, FDA should issue a policy promotion to help ensure that adequate If the only available treatment for a contextual and risk information, statement that prescription drug advertisements directed to the general condition is a specific prescription drug presented in understandable language, product, help-seeking materials may not is included both to fulfill the public are exempt from the advertising regulations. Another petition, recently be employed. In such a case, materials requirement for fair balance and to help focusing on the condition would, by the consumer accurately assess received by FDA, reiterates these concerns and also raises First implication, promote the product. In promotional claims and presentations. addition, help-seeking materials may Additionally, in a July 1993 letter to the Amendment issues. The range of actions requested in these petitions is indicative not include ‘‘linkages,’’ i.e., logos, tag pharmaceutical industry, as well as in lines, graphics, etc., to product-specific numerous prior and subsequent public of the diversity of views regarding direct-to-consumer promotion. FDA materials. Linkages create a clear presentations given by FDA staff, the recognizes the importance of the issues association between a disease and a agency has requested that drug raised by these petitions, and FDA prescription drug, resulting in the manufacturers voluntarily submit intends that one of the purposes of the interpretation of the help-seeking proposed direct-to-consumer public hearing will be to assist the material as product-claim material. promotional material prior to use, agency in responding to these petitions. Help-seeking materials that include allowing FDA the opportunity to review linkages are regulated as product-claim and comment upon proposed materials 2. Types of Direct-to-Consumer materials. before they reach consumers. Promotion As direct-to-consumer promotion has B. Current Issues in Direct-to-Consumer There are three broad categories of become more sophisticated, some Promotion direct-to-consumer promotion of opponents have questioned FDA’s prescription drugs: (1) ‘‘Product-claim,’’ decision not to regulate help-seeking 1. General containing safety and efficacy claims materials. They argue that even in the The repercussions of direct-to- about a particular drug(s); (2) ‘‘help- absence of direct linkages, many consumer promotion have been widely seeking,’’ containing information about consumers are able to connect the discussed. Proponents argue that direct- a disease or condition and a sponsoring manufacturer with a specific to-consumer promotion is of recommendation for the consumer to prescription drug. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42583 5. Reminder such a page reference would be 9. Consumer Services Reminder promotional materials are a inadequate. Manufacturer-sponsored patient- Because of the difficulty of satisfying means of reinforcing name recognition support programs are becoming the disclosure requirement, consumer- and brand loyalty. When targeted increasingly common. These programs directed broadcast advertisements have toward prescribers, manufacturers are highly visible to consumers and may been largely limited to reminder and anticipate that this marketing technique be perceived as adding value to their help-seeking advertisements. Reminder will increase the frequency with which therapy. Such programs offer services and help-seeking advertisements are such as patient counseling, care giver a prescriber recalls the name of a drug exempt from the disclosure counseling, therapy compliance and its clinical role. This process is requirements. New methods of tracking, and disease monitoring. These expected to result in an increased satisfying the ‘‘adequate provision’’ number of prescriptions for the requirement, such as scrolling the programs may allow the drug manufacturer’s product. The utility of approved product labeling following manufacturer to influence the course of reminder materials for consumers has television broadcasts, continue to be drug therapy beyond the initial not been resolved. Consumers are less explored. prescribing decision. Disclosure of the likely to associate the brand name of a Broadcast advertisements also are manufacturer’s sponsorship is not prescription drug with its clinical required to present information relating always clear. For example, some of function(s). Moreover, consumers to the major risks (i.e., side effects, these services may appear to be generally do not make prescribing warnings, precautions, and sponsored by the patient’s physician or decisions. Therefore, many question the contraindications) of the drug other health care provider. value of this marketing technique for (§ 202.1(e)(1)). This disclosure is Other manufacturer-sponsored consumers, which, by definition, fails to commonly referred to as the ‘‘major consumer services appear to be provide clinical information. statement.’’ The major statement must sponsored by unbiased third parties, such as disease-specific foundations. 6. Disclosure Requirements for Print be presented as an integral part of the This relationship may be utilized in Labeling and Advertising broadcast advertisement and be communicated in language understood many ways. For instance, the As described previously, the act by consumers. Nevertheless, the major foundation may disseminate requires that non-reminder labeling bear statement is a relatively fleeting manufacturer-prepared drug ‘‘adequate directions for use’’ of the disclosure and many have questioned information to consumers on behalf of product (21 U.S.C. 352(f)) and that non- the ability of the consumer to the manufacturer. Consumers may not reminder advertising include a ‘‘true comprehend and process the be aware of the true source of the statement of * * * other information in information. information, and consequently, they brief summary relating to side effects, may not evaluate this information as contraindications, and effectiveness’’ 8. Fair Balance critically as they would manufacturer- (21 U.S.C. 352(n)). This statement has As discussed earlier, the regulations disseminated information. At issue is become known as the ‘‘brief summary.’’ require that advertisements present a whether or not these services mislead These disclosure requirements are fair balance of benefit and risk consumers. generally satisfied by reprinting the full information. Claims of drug benefits, II. Scope of the Hearing package insert with labeling or the brief such as safety and efficacy, must be summary with advertising. However, balanced with relevant disclosures of In light of the many complex public the package insert is written in technical risks and limitations of efficacy. The health issues raised by direct-to- language intended for health care regulations also require that the risk consumer prescription drug promotion, professionals and is relatively information be presented with a FDA is soliciting broad public inaccessible to consumers. prominence and readability reasonably participation and comment concerning Consequently, the value of this comparable to claims about drug this area. FDA is particularly interested information for consumers is benefits (§ 202.1(e)(7)(viii)). In in exploring whether, and, if so, how, questionable. At issue is whether the consumer-directed promotion, FDA has the agency’s current regulatory same information could be presented in interpreted these requirements to mean approach should be modified. As direct- a format and language more easily that balancing information should to-consumer promotion evolves, FDA understood by consumers. appear in the body copy of the will continue to help ensure that promotional material in language consumers receive timely, 7. Disclosure Requirements for understood by consumers. Balancing understandable, and accurate Broadcast Advertising information is intended to provide a information about prescription drugs. Broadcast advertisements (radio, framework for the consumer to Examples of issues that are of interest television, or telephone understand and evaluate drug benefit to the agency include the following: communications systems) must contain claims, allowing them to form accurate 1. What is known about the effects of a brief summary, unless ‘‘adequate opinions about prescription drugs. direct-to-consumer promotion? What provision is made for dissemination’’ of These disclosures, often referred to as effects, if any, does direct-to-consumer the approved labeling in connection ‘‘critical messages,’’ also serve to promotion have on the public health? with the presentation (§ 202.1(e)(1)). facilitate and focus the physician- 2. Does direct-to-consumer promotion Advertisements targeted to health care patient interaction. oversimplify the safety and effectiveness professionals may meet this requirement Opponents of direct-to-consumer of prescription drugs? If so, what impact by providing the page number for the promotion argue that critical messages does such oversimplification have on advertised product in the Physicians’ cannot provide consumers with the the public health? Desk Reference (PDR), along with a toll- contextual knowledge required to assess 3. Can consumers understand and free telephone number by which the the risks associated with the use of a accurately assess claims regarding the professional may request a copy of the prescription drug. Accordingly, they efficacy and safety of prescription package insert. Most consumers do not would like to see direct-to-consumer drugs? What kind of additional have ready access to the PDR. Therefore, promotion halted. information, if any, should be required 42584 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices in the presentation of comparative drug III. Notice of Hearing Under 21 CFR representatives of the electronic media claims to ensure that consumers Part 15 may be permitted, subject to certain understand and may critically evaluate The Commissioner of Food and Drugs limitations, to videotape, film, or them? is announcing that the public hearing otherwise record FDA’s public 4. Reminder advertisements, by will be held in accordance with part 15 administrative proceedings, including definition, lack contextual and risk (21 CFR part 15). The presiding officer presentations by participants. The information. What role do such will be the Commissioner of Food and hearing will be transcribed as required by § 15.30(b). Orders for copies of the advertisements play in consumer Drugs or his designee. The presiding transcript can be placed at the meeting promotion? Are such advertisements officer will be accompanied by a panel or through the Dockets Management useful for consumers? of Public Health Service employees with Branch (address above). relevant expertise. 5. (a) Current regulations require Any handicapped person requiring Persons who wish to participate in the inclusion of a ‘‘brief summary’’ of special accommodations in order to part 15 hearing must file a written prescribing information in print attend the hearing should direct those notice of participation with the Dockets advertisements. Is this form of needs to the contact person listed above. disclosure effective for consumers? Is it Management Branch (address above) by To the extent that the conditions for September 15, 1995. To ensure timely informative? Should there be alternate the hearing, as described in this notice, handling, the outer envelope should be requirements for risk disclosure, and, if conflict with any provisions set out in clearly marked with docket number so, what should they be? (b) Current part 15, this notice acts as a waiver of 95N–0227 and the statement ‘‘Direct-to- regulations require that broadcast those provisions as specified in Consumer Hearing.’’ Groups should advertisements present a ‘‘brief § 15.30(h). submit two copies. The notice of summary’’ of prescribing information To permit time for all interested participation should contain the unless adequate provision is made for persons to submit data, information, or person’s name; address; telephone the dissemination of the approved views on this subject, the administrative number; affiliation, if any; brief product labeling. Also required is a record of the hearing will remain open summary of the presentation; and statement of the major risks of the following the hearing until December approximate amount of time requested 29, 1995. product. Are these disclosure for the presentation. The agency requirements effective and informative requests that interested persons and Dated: August 7, 1995. for consumers? Are there alternate types groups having similar interests William K. Hubbard, of risk disclosures that are more consolidate their comments and present Acting Deputy Commissioner for Policy. effective or informative? If so, what are them through a single representative. [FR Doc. 95–20314 Filed 8–15–95; 8:45 am] they? FDA will allocate the time available for BILLING CODE 4160±01±F 6. New technologies have spurred the the hearing among the persons who file growth of computer-based promotional notices of participation as described vehicles, such as electronic bulletin above. If time permits, FDA may allow Substance Abuse and Mental Health boards, kiosks in pharmacies, the interested persons attending the hearing Services Administration Internet, etc. These promotions are who did not submit a written notice of Center for Substance Abuse neither purely print nor broadcast. What participation in advance to make an oral Treatment; Meeting disclosure requirements, in general, presentation at the conclusion of the should be used for such consumer- hearing. Pursuant of Pub.L. 92–463, notice is directed prescription drug promotion? After reviewing the notices of hereby given of the meeting of the 7. ‘‘Infomercials’’ are program-length participation and accompanying Center for Substance Abuse Treatment television or radio programs that information, FDA will schedule each (CSAT) National Advisory Council in promote prescription drugs to appearance and notify each participant September 1995. consumers. What restrictions and/or by telephone of the time allotted to the The meeting of the CSAT National disclosures should be required of person and the approximate time the Advisory Council will include a infomercials promoting prescription person’s presentation is scheduled to discussion of the mission and programs drugs to consumers? begin. The hearing schedule will be of the Center, policy issues and available at the hearing. After the administrative, legislative, and program 8. To help ensure that advertisements hearing, the schedule will be placed on developments. The Council will also be will be in ‘‘fair balance,’’ FDA currently file in the Dockets Management Branch performing a review of grant requests disclosure of key risk and/or under docket number 95N–0227. applications, contract proposals and limitations of efficacy information, i.e., Under § 15.30(f), the hearing is procurement plans for Federal critical messages, in consumer-directed informal and the rules of evidence do assistance; therefore a portion of this prescription drug promotion. In general, not apply. The presiding officer and any meeting will be closed to the public as are such disclosures effective and panel members may question any determined by the Administrator, informative for this audience? What person during or at the conclusion of SAMHSA, in accordance with 5 U.S.C. kinds of information should be their presentation. No other person 552b(c)(3)(4) and (6) and 5 U.S.C. app. disclosed? attending the hearing may question a 2 10(d). Attendance by the public at the 9. Some manufacturer-supported person making a presentation or open portion of the meeting will be direct-to-consumer promotion appears interrupt the presentation of a limited to space available. Public to be sponsored by independent, third- participant. comments are welcome during the open party services, such as mailings from Public hearings under part 15 are session. Please communicate with the disease-specific foundations or disease subject to FDA’s guideline (21 CFR part Contact person listed below for management support services. What 10, subpart C) on the policy and guidance. disclosures should be required to inform procedures for electronic media A summary of the meeting and roster consumers of the source of the coverage of public administrative of council members may be obtained communication? proceedings. Under § 10.205, from: Ms. D. Winstead, Committee Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42585 Management Specialist, CSAT, has been submitted to the Office of number of hours heeded to prepare the Rockwall II Building, Suite 840, 5600 Management and Budget (OMN) for information submission including Fishers Lane, Rockville, Maryland review, as required by the Paperwork number of respondents, frequency of 20857, Telephone: (301) 443–8448. Reduction Act. The Department is response, and hours of response; (7) Substantive program information may soliciting public comments on the whether the proposal is new or an be obtained from the contact whose subject proposal. extension, reinstatement, or revision of name and telephone number is listed ADDRESSES: Interested persons are an information collection requirement; below. invited to submit comments regarding and (8) the names and telephone Committee Name: The Center for this proposal. Comments must be numbers of an agency official familiar Substance Abuse Treatment National received within thirty (30) days from the with the proposal and of the OMB Desk Advisory Council. date of this Notice. Comments should Officer for the Department. Meeting Dates: September 14 and 15, 1995. refer to the proposal by name and Authority: Section 3507 of the Paperwork Place: Chevy Chase Holiday Inn, 5520 should be sent to: Joseph F. Lackey, Jr., Wisconsin Avenue, Chase Room, Chevy Reduction Act, 44 U.S.C. 3507; Section 7(d) Chase, Maryland 20815. OMB Desk Officer, Office of of the Department of Housing and Urban Type: Closed: September 14, 8:30 a.m.– Management and Budget, New Development Act, 42 U.S.C. 3535(d). 10:30 a.m. Open: September 14, 10:30 a.m.– Executive Office Building, Washington, Dated: August 10, 1995. 3:30 p.m. Open: September 15, 8:45 a.m.– DC 20503. David S. Cristy, 2:15 p.m. FOR FURTHER INFORMATION CONTACT: Kay Director, Information Resources Management Contact: Marjorie Cashion, Rockwall II F. Weaver, Reports Management Officer, Policy and Management Division. Building, Suite 840, Telephone: (301) 443– Department of Housing and Urban 3821. Notice of Submission of Proposed Development, 451 7th Street, Information Collection to OMB Dated: August 10, 1995. Southwest, Washington, DC 20410, Jeri Lipov, telephone (202) 708–0050. This is not a Proposal: (1) Schedule of Subscribers Committee Management Officer, Substance toll-free number. Copies of the proposed and GNMA II Contractual Agreement Abuse and Mental Health Services forms and other available documents and (2) Schedule of Subscribers Administration. submitted to OMB may be obtained Addendum for Construction Loan [FR Doc. 95–20244 Filed 8–15–95; 8:45 am] from Ms. Weaver. Certification. BILLING CODE 4162±20±P SUPPLEMENTARY INFORMATION: The Office: Government National Department has submitted the proposal Mortgage Association. for the collection of information, as Description of the Need for the DEPARTMENT OF HOUSING AND described below, to OMB for review, as URBAN DEVELOPMENT Information and Its Proposed Use: The required by the Paperwork Reduction forms are used to provide GNMA with Office of Administration Act (44 U.S.C. Chapter 35). a listing of subscribers and other The Notice lists the following information needed to prepare [Docket No. FR±3917±N±17] information: (1) The title of the mortgage-backed securities. They are information collection proposal; (2) the also used to provide the contractual Notice of Submission of Proposed office of the agency to collect the Information Collection to OMB agreement between the issuer and information; (3) the description of the GNMA under the GNMA II program. need for the information and its AGENCY: Office of Administration, HUD. Form Number: HUD–11705 and 1735. ACTION: Notice. proposed use; (4) the agency form number, if applicable; (5) what members Respondents: Business or Other For- SUMMARY: The proposed information of the public will be affected by the Profit and the Federal Government. collection requirement described below proposal; (6) an estimate of the total Reporting Burden: Number of re- × Frequency of × Hours per Burden spondents response response = hours HUD±11705 ...... 900 34 .17 5,202 HUD±1735 ...... 80 2 .17 27 Total Estimated Burden Hours: 5,229. DEPARTMENT OF THE INTERIOR from the captive herd maintained by Mr. Status: Extension with changes. D.B. Pohl, ‘‘Tea Fountain’’, Republic of Fish and Wildlife Service South Africa, for enhancement of the Contact: Brenda Countee, HUD, (202) species. 708–2234; Joseph F. Lackey, Jr., OMB, Receipt of Applications for Permit (202) 395–7316. Applicant: Thompson & Morgan, Inc., The following applicants have Jackson, NJ, PRT–805326. The applicant Dated: August 10, 1995. applied for a permit to conduct certain requests a permit to import and sell in [FR Doc. 95–20292 Filed 8–15–95; 8:45 am] activities with endangered species. This interstate and foreign commerce notice is provided pursuant to Section BILLING CODE 4120±01±M artificially propagated seeds of Antioch 10(c) of the Endangered Species Act of dunes evening-primrose (Oenothera 1973, as amended (16 U.S.C. 1531, et deltoides howellii) from Thompson & seq.): Morgan Ltd., United Kingdom, to Applicant: William R. Hawkins, El enhance the propagation and survival of Cajon, CA, PRT–805154. The applicant requests a permit to the species. This notification covers import one sport-hunted bontebok activities conducted by the applicant for (Damaliscus pygargus dorcas) culled a five year period. 42586 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Applicant: Russel Underahl, North Bureau of Land Management —A statement of the part of parts being Oaks, MN, PRT–805548 protested and citing of pages, [UT±068±05±1020±00] The applicant requests a permit to paragraphs, maps etc., of the plan amendment. import one sport-hunted male bontebok Proposed Plan Amendment; Grand —A copy of all documents addressing (Damaliscus pygargus dorcas) culled Resource Management Plan from the captive herd maintained by the issue (s) submitted by the M.G. Wienand, Longwood, Bedford, AGENCY: Bureau of Land Management, protestor during the planning process or a reference to the date when the Republic of South Africa for the purpose Interior. protester discussed the issues (s) for of enhancement of the species. ACTION: Notice of Availability. the record. Applicant: Buffalo Zoological SUMMARY: This notice is to advise the —A concise statement to why the Gardens, Buffalo, NY, PRT–805551. public that the proposed plan protester believes the BLM State The applicant requests a permit to amendment and associated revised Director decision is incorrect. export the skins shed from three environmental assessment for the Grand Dated: August 8, 1995. captive-born Virgin Islands tree boas Resource Management Plan has been Ernest J. Eberhard, completed. The proposed amendment (Epicrates monensis granti) to Queen’s Acting State Director. University, Kingston, Ontario, Canada, involves the reallocation of forage on the Diamond and Cottonwood grazing [FR Doc. 95–20038 Filed 8–15–95; 8:45 am] for enhancement of the survival of the BILLING CODE 4310±DQ±P species through scientific research. allotments. DATES: Applicant: California Department of The protest period for this proposed plan amendment will Fish and Game, Sacramento, CA, PRT– Office of Surface Mining Reclamation commence with the date of publication 782423. and Enforcement of this notice. Protests must be received Notice is hereby given that the on or before September 15, 1995. Information Collection Submitted to applicant has requested and has been ADDRESSES: Protests must be addressed the Office of Management and Budget granted an extension of the permit, to the Director, Bureau of Land for Review Under the Paperwork PRT–782423, through August 2, 1996. Management (WO 480)), Resource Reduction Act The permit authorizes the take and Planning Team, P.O. Box 65775, release of up to 30 southern sea otters Washington, DC 20036 within 30 days The proposal for the collection of (Enhydra lutris nereis) from the area after the date of publication of this information listed below has been between Point Joe, Monterey County Notice of Availability. submitted to the Office of Management and Lighthouse Point, Santa Cruz and Budget for approval under the FOR FURTHER INFORMATION CONTACT: Brad provisions of the Paperwork Reduction County for scientific research purposes Palmer, Area Manager, Grand Resource under the Marine Mammal Protection Act (44 U.S.C. Chapter 35). Copies of the Area of the Moab District at 82 East proposed collection of information and Act and the U.S. Endangered Species Dogwood, Suite G, Moab, Utah 84532, related form may be obtained by Act. telephone (801) 259–6111. Copies of the contacting the Bureau’s clearance officer Written data or comments should be proposed amendment/environmental at the phone number listed below. submitted to the Director, U.S. Fish and assessment are available for review at Comments and suggestions on the Wildlife Service, Office of Management the Grand Resource Area Office. proposal should be made directly to the Authority, 4401 North Fairfax Drive, SUPPLEMENTARY INFORMATION: This bureau clearance officer and to the Room 420(c), Arlington, Virginia 22203 action is announced pursuant to section Office of Management and Budget, and must be received by the Director 202 (a) of the Federal Land Management Paperwork Reduction Project (1029– within 30 days of the date of this and Policy Act (1976) and 43 CFR part 0049), Washington, DC 20503, publication. 1610. As a result of a previous protest telephone 202–395–7340. received on two of the proposed Title: Special Permanent Program Documents and other information decisions of this proposed amendment, Performance Standards—Operations submitted with these applications are the subject environmental assessment in Alluvial Valley Floors available for review, subject to the has been revised regarding requested requirements of the Privacy Act and information on the Diamond and OMB approval number: 1029–0049 Freedom of Information Act, by any Cottonwood Allotments. All other non Abstract: This section requires the party who submits a written request for protested decisions in the Plan permittee to install, maintain and a copy of such documents to the Amendment have been implemented. operate a monitoring system in order following office within 30 days of the Therefore, only those decisions relative to provide specific protection for date of publication of this notice: U.S. to the Cottonwood and Diamond alluvial valley floors. This Fish and Wildlife Service, Office of Allotments may be protested. This information is needed to ensure that Management Authority, 4401 North proposed amendment is subject to the agricultural utility and production Fairfax Drive, Room 420(c), Arlington, protest by any party who has of the alluvial valley floor is maintained Virginia 22203. Phone: (703/358–2104); participated in the planning process. FAX: (703/358–2281). Protest must be made in accordance Bureau Form Number: None with the provisions of 43 CFR 1610.5– Frequency: Annually Dated: August 11, 1995. 2. Protests must be specific and contain Description of Respondents: Coal Caroline Anderson, the following information: Mining Operators Acting Chief, Branch of Permits, Office of —The name, mailing address, phone Estimated Completion Time: 100 hours Management Authority. number, and interest of the person Annual Responses: 10 [FR Doc. 95–20279 Filed 8–15–95; 8:45 am] filing the protest. Annual Burden Hours: 1,000 BILLING CODE 4310±55±P —A statement of the issue or issues Bureau Clearance Officer: John A. being protested. Trelease (202) 342–1475 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42587 Dated: August 2, 1995. (TCE), Attn: Patrick O’Brien, P.O. Box No. 6) granting a joint motion of Andrew F. DeVito, 25287, Denver, Colorado 80225–0287; complainant R.G. Barry Corporation and Acting Chief, Rules and Legislation Staff. (303) 969–2458. respondents Mervyn’s, Inc. and S. [FR Doc. 95–20216 Filed 8–15–95; 8:45 am] FOR FURTHER INFORMATION CONTACT: Jere Goldberg & Co., Inc., to terminate the BILLING CODE 4310±05±M Krakow, Trail Program Manager, Long investigation on the basis of a consent Distance Trails Program Office at (801) order agreement and a proposed consent 539–4094. order. No petitions for review of the ID National Park Service or agency comments were received. Dated: June 22, 1995. This action is taken under authority of California National Historic Trail/Pony Ronald E. Everhart, section 337 of the Tariff Act of 1930 (19 Express National Historic Trail General Acting Field Director, Intermountain Field U.S.C. 1337) and section 210.42 of the Management Plan/Environmental Area Commission’s Final Rules of Practice Impact Statement, California and Pony [FR Doc. 95–20194 Filed 8–15–95; 8:45 am] and Procedure (19 C.F.R. 210.42). Express National Historic Trails, Iowa, BILLING CODE 4310±70±P By order of the Commission. Nebraska, Missouri, Kansas, Colorado, Issued: August 9, 1995. Wyoming, Utah, Nevada, California, Donna R. Koehnke, Oregon INTERNATIONAL TRADE COMMISSION Secretary. AGENCY: National Park Service, [FR Doc. 95–20304 Filed 8–15–95; 8:45 am] Department of the Interior. [Investigation No. 337±TA±375] BILLING CODE 7020±02±P ACTION: Notice of intent to prepare an Certain Clog Style Articles of environmental impact statement for the Footwear; Notice of Commission California and Pony Express National Determination Not To Review an Initial INTERSTATE COMMERCE Historic Trails General Management Determination Granting a Joint Motion COMMISSION Plan/Environmental Impact Statements, To Terminate the Investigation on the [Docket No. AB±55 (Sub-No. 511X)] California and Pony Express National Basis of a Consent Order Historic Trails. CSX Transportation, Inc.Ð AGENCY: U.S. International Trade Abandonment ExemptionÐin Hamilton SUMMARY: Under the provisions of the Commission. National Environmental Policy Act, the County, IL ACTION: Notice. National Park Service is preparing an CSX Transportation, Inc. (CSXT) has environmental impact statement for the SUMMARY: Notice is hereby given that filed a notice of exemption under 49 California and Pony Express National the U.S. International Trade CFR 1152 Subpart F—Exempt Historic Trails General Management Commission has decided not to review Abandonments to abandon 2.64 miles of Plan/ Environmental Impact Statement an initial determination (ID) issued by rail line between milepost HS–377.77 at for California and Pony Express the presiding administrative law judge Thackeray and milepost HS–380.41 at National Historic Trails. (ALJ) in the above-captioned Wheeler Creek Mine, in Hamilton The effort will result in a investigation granting a motion to County, IL. comprehensive general management terminate the investigation as to CSXT has certified that: (1) no local plan that encompasses preservation of respondents Mervyn’s, Inc. and S. traffic has moved over the line for at natural and cultural resources, visitor Goldberg & Co., Inc., on the basis of a least 2 years; (2) there is no overhead use and interpretation, roads, and consent order and consent order traffic on the line; (3) no formal facilities. In cooperation with the U.S. agreement. As Mervyn’s and Goldberg complaint filed by a user of rail service Fish and Wildlife Service, U.S.D.A. are the only respondents in the on the line (or by a State or local Forest Service, Bureau of Land investigation, their termination government entity acting on behalf of Management, and the sovereign Native terminates the investigation. such user) regarding cessation of service American Tribes with lands adjacent to over the line either is pending with the ADDRESSES: Copies of the the trails, attention will also be given to Commission or with any U.S. District nonconfidential version of the ID and all resources adjacent to the trails that Court or has been decided in favor of other nonconfidential documents filed affect the integrity of the California and the complainant within the 2-year in connection with this investigation are Pony Express National Historic Trails. period; and (4) the requirements at 49 or will be available for inspection Alternatives to be considered include CFR 1105.7 (environmental reports), 49 during official business hours (8:45 a.m. no-action and a range of alternatives CFR 1105.8 (historic reports), 49 CFR to 5:15 p.m.) in the Office of the from which the preferred alternative 1105.11 (transmittal letter), 49 CFR Secretary, U.S. International Trade will be selected. 1105.12 (newspaper publication), and Commission, 500 E Street SW., Major issues include cooperative 49 CFR 1152.50(d)(1) (notice to Washington, DC 20436, telephone (202) agreements with land management governmental agencies) have been met. 205–2000. agencies and private land owners for As a condition to use of this visitor use and trail preservation; FOR FURTHER INFORMATION CONTACT: exemption, any employee affected by identification of historic sites and trail Greta Lichtenbaum, Esq., Office of the the abandonment shall be protected segments; development of a consistent General Counsel, U.S. International under Oregon Short Line R. Co.— management strategy for the trails, Trade Commission, telephone 202–205– Abandonment—Goshen, 360 I.C.C. 91 which can be easily implemented by 3092. Hearing-impaired individuals are (1979). To address whether this land owners and land management advised that information on this matter condition adequately protects affected agencies. can be obtained by contacting the employees, a petition for partial A scoping brochure has been prepared Commission’s TDD terminal on 202– revocation under 49 U.S.C. 10505(d) that details the issues identified to date. 205–1810. must be filed. Copies of that information can be SUPPLEMENTARY INFORMATION: On July Provided no formal expression of obtained from the Denver Service Center 12, 1995, the ALJ issued an ID (Order intent to file an offer of financial 42588 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices assistance (OFA) has been received, this DEPARTMENT OF LABOR Gould Shawmut in Marble Falls, Texas exemption will be effective on who were affected by increased imports September 15, 1995, unless stayed Office of the Secretary of fuseholders. pending reconsideration. Petitions to The amended notice applicable to stay that do not involve environmental President's Committee on the TA–W–29,639 is hereby issued as issues,1 formal expressions of intent to International Labor Organization; follows: Closed Meeting file an OFA under 49 CFR All workers of the fuseholder production 1152.27(c)(2),2 and trail use/rail banking In accordance with Section 10(a) of line of Gould Shawmut, a/k/a Gould requests under 49 CFR 1152.29 3 must the Federal Advisory Committee Act Electronics, Inc., Marble Falls, Texas who be filed by August 28, 1995. Petitions to (Pub. L. 92–463), announcement is became totally or partially separated from reopen or requests for public use hereby given of a meeting of the employment on or after October 1, 1993, are conditions under 49 CFR 1152.28 must President’s Committee on the ILO: eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974. be filed by September 5, 1995, with: Name: President’s Committee on the Signed at Washington, D.C. this 4th day of Office of the Secretary, Case Control International Labor Organization. August 1995. Branch, Interstate Commerce Date: Friday, September 8, 1995. Commission, Washington, DC 20423. Time: 10 am. Arlene O’Connor, A copy of any pleading filed with the Place: U.S. Department of Labor, Third and Acting Program Manager, Policy and Commission should be sent to Constitution Ave., NW., Room S–2508, Reemployment Services, Office of Trade applicant’s representative: Charles M. Washington, DC 20210. Adjustment Assistance. Purpose: The meeting will include a [FR Doc. 95–20262 Filed 8–15–95; 8:45 am] Rosenberger, 500 Water Street J150, review and discussion of current issues Jacksonville, FL 32202. relating to United States’ negotiating BILLING CODE 4510±30±M If the notice of exemption contains positions with member nations of the false or misleading information, the International Labor Organization. The exemption is void ab initio. meeting will concern matters the disclosure [TA±W±30,913 and TA±W±30,913A] CSXT filed an environmental report of which would seriously compromise the Government’s negotiating objectives and Heublein, Incorporated, Hartford, which addresses the effects of the bargaining positions. Accordingly, the abandonment, if any, on the Connecticut and Farmington, meeting will be closed to the public, Connecticut; Amended Certification environment and historic resources. The pursuant to Section 9(b) of the Government Commission’s Section of Environmental in the Sunshine Act, 5 U.S.C. 552b(c)(9)(B). Regarding Eligibility to Apply for Analysis (SEA) will issue an For Further Information Contract: Mr. Worker Adjustment Assistance Joaquin F. Otero, President’s Committee on environmental assessment (EA) by In accordance with Section 223 of the August 21, 1995. Interested persons may the International Labor Organization, U.S. Department of Labor, 200 Constitution Trade Act of 1974 (19 USC 2273) the obtain a copy of the EA by writing to Avenue, NW., Room S–2235, Washington, Department of Labor issued a Notice of SEA (Room 3219, Interstate Commerce DC 20210 Telephone (202) 219–6043. Certification Regarding Eligibility to Commission, Washington, DC 20423) or Signed at Washington, DC this 10th day of Apply for Worker Adjustment by calling Elaine Kaiser, Chief of SEA, August, 1995. Assistance on May 1, 1995, applicable at (202) 927–6248. Comments on Robert B. Reich, to workers of Heublein, Incorporated, environmental and historic preservation Secretary of Labor. located in Hartford, Connecticut. The matters must be filed within 15 days [FR Doc. 95–20260 Filed 8–15–95; 8:45 am] notice was published in the Federal after the EA becomes available to the BILLING CODE 4510±28±M Register on May 17, 1995 (60 FR 26459). public. At the request of the company, the Environmental, historic preservation, Department reviewed the certification public use, or trail use/rail banking Employment and Training for workers of the subject firm. New conditions will be imposed, where Administration information received from the company appropriate, in a subsequent decision. shows that Heublein has employees at [TA±W±29,639] Decided: August 9, 1995. various locations within Hartford, and By the Commission, David M. Konschnik, Gould Shawmut, Marble Falls, Texas; in Farmington, Connecticut. Director, Office of Proceedings. Amended Certification Regarding Further information shows that some Vernon A. Williams, Eligibility to Apply for Worker of the workers at these Heublein Secretary. Adjustment Assistance facilities are providing administrative and support services associated with the [FR Doc. 95–20273 Filed 8–15–95; 8:45 am] In accordance with Section 223 of the manufacture, sale, distribution and BILLING CODE 7035±01±P Trade Act of 1974 (19 USC 2273) the marketing of vodka and other distilled Department of Labor issued a Notice of spirits. 1 A stay will be issued routinely by the Certification Regarding Eligibility to The intent of the Department’s Commission in those proceedings where an Apply for Worker Adjustment informed decision on environmental issues certification is to include all workers of (whether raised by a party or by the Commission’s Assistance on May 26, 1994, applicable Heublein, Incorporated who are Section of Environmental Analysis in its to workers of the subject firm. The adversely affected by imports. independent investigation) cannot be made prior to notice was published in the Federal The amended notice applicable to the effective date of the notice of exemption. See Register on June 14, 1994 (59 FR 30618). Exemption of Out-of-Service Rail Lines, 5 I.C.C.2d TA–W–30,913 is hereby issued as 377 (1989). Any entity seeking a stay on The Department has been notified by follows: the company that Gould, Inc. has environmental concerns is encouraged to file its All workers of Heublein, Incorporated, request as soon as possible in order to permit the changed its corporate name to Gould Commission to review and act on the request prior located in Hartford (TA–W–30,913) and Electronics, Inc. Gould Shawmut is a Farmington (TA–W–30,913A), Connecticut to the effective date of this exemption. division name which includes plants in 2 See Exempt. of Rail Abandonment Offers of who became totally or partially separated Finan. Assist., 4 I.C.C.2d 164 (1987). other locations. from employment on or after March 25, 1994, 3 The Commission will accept a late-filed trail use The intent of the Department’s are eligible to apply for adjustment assistance request as long as it retains jurisdiction to do so. certification is to include all workers of under Section 223 of the Trade Act of 1974. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42589 Signed at Washington, D.C. this 4th day of TA–W–31,228; E–Systems, Inc., TA–W–31,069; Rainbow Fashion, Inc., August 1995. Greenville Div., Greenville, TX Pittston, PA Arlene O’Connor, TA–W–31,259; KGS Systems, Inc., A certification was issued covering all Acting Program Manager, Policy and Harlingen, TX workers separated on or after May 16, Reemployment Services, Office of Trade The workers’ firm does not produce 1994. Adjustment Assistance. an article as required for certification TA–W–31,136; DTH Enterprises, Inc., [FR Doc. 95–20261 Filed 8–15–95; 8:45 am] under Section 222 of the Trade Act of Roswell, NM BILLING CODE 4510±30±M 1974. A certification was issued covering all TA–W–31,091; Flexel, Inc., Tecumseh, workers separated on or after May 25, Determinations Regarding Eligibility to KS 1994. Apply for Worker Adjustment The investigation revealed that TA–W–31,213; NQ II Ltd, Mifflinburg, Assistance and NAFTA Transitional criterion (1) has not been met. A PA Adjustment Assistance significant number or proportion of the workers did not become totally or A certification was issued covering all In accordance with Section 223 of the partially separated as required for workers separated on or after June 22, Trade Act of 1974, as amended, the certification. 1994. Department of Labor herein presents TA–W–31,178 & A; Leader Sportswear TA–W–31,223; T & W Forge, Inc., summaries of determinations regarding Manufacturing 950 Wapakoneta Alliance, OH eligibility to apply for trade adjustment Ave., Sidney, OH and 208 South A certification was issued covering all assistance for workers (TA–W) issued Brooklyn Ave., Sidney, OH workers separated on or after June 23, during the period of July and August, 1995. 1995. The predominate reason for layoffs at TA–W–31,192; Salmon Intermountain, In order for an affirmative the Wapakoneta Avenue and South Inc., Salmon, ID determination to be made and a Brooklyn Avenue of Leader Sportswear certification of eligibility to apply for Manufacturing was due to a decision by A certification was issued covering all worker adjustment assistance to be the parent company, Neff Company to workers separated on or after June 22, issued, each of the group eligibility consolidate production in the Georgia 1994. requirements of Section 222 of the Act facility in April, 1995. TA–W–31,253; Crown Pacific Limited must be met. Affirmative Determinations for Worker Partnership, Colburn Unit, (1) that a significant number or Adjustment Assistance Sandpoint, ID proportion of the workers in the A certification was issued covering all workers’ firm, or an appropriate TA–W–31,144; Fruit of the Loom, Jamestown, KY workers separated on or after July 10, subdivision thereof, have become totally 1994. or partially separated, A certification was issued covering all (2) that sales or production, or both, workers separated on or after May 30, TA–W–31,153; Crown Pacific Limited of the firm or subdivision have 1994. Partnership, Bonners Ferry, ID decreased absolutely, and TA–W–31,199; Lee Manufacturing, A certification was issued covering all (3) that increases of imports of articles Pittston, PA workers separated on or after June 12, like or directly competitive with articles A certification was issued covering all 1994. produced by the firm or appropriate workers separated on or after June 20, TA–W–31,190; ITT Marlow Pumps, subdivision have contributed 1994. Midland Park, NJ importantly to the separations, or threat TA–W–31,220; Stride-rite Corp., Fulton, A certification was issued covering all thereof, and to the absolute decline in MO workers separated on or after June 1, sales or production. A certification was issued covering all 1994. Negative Determinations for Worker workers separated on or after June 29, TA–W–31,188; Robertshaw Controls Adjustment Assistance 1994. Co., El Paso, TX In each of the following cases the TA–W–31,257; Husky Enterprises, A certification was issued covering all investigation revealed that criterion (3) Jermyn, PA workers separated on or after June 12, has not been met. A survey of customers A certification was issued covering all 1994. indicated that increased imports did not workers separated on or after July 3, TA–W–31,230; Hayward Pool Products, contribute importantly to worker 1994. Inc., Elizabeth, NJ separations at the firm. TA–W–31,147; Summit Station Mfg., A certification was issued covering all TA–W–31,102; Rockwell Graphics Inc., Pine Grove, PA workers separated on or after July 6, Systems of Rockwell, Reading, PA 1994. TA–W–31,099; Traulsen & Co., Inc., A certification was issued covering all TA–W–31,265; Power Cords & Cable College Point, NY workers separated on or after June 6, 1994. Corp., College Point, NY In the following cases, the investigation revealed that the criteria TA–W–31,089 & TA–W–31,090; Flexel, A certification was issued covering all for eligibility have not been met for the Inc., Covington, IN and Atlanta, GA workers separated on or after July 12, reasons specified. A certification was issued covering all 1994. TA–W–31,077; Sunstrand Corp., workers separated on or after May 12, TA–W–31,096; American Lantern Co., Electric Power System Div., Lima, 1994. Newport, AR OH TA–W–31,131; Karen Fashions, Inc., A certification was issued covering all U.S. imports of parts for military Secaucus, NJ workers separated on or after May 12, aircraft declined absolutely in the A certification was issued covering all 1994. period April 1994 through March 1995 workers separated on or after May 31, TA–W–31,115; Louis Dreyfus Natural as compared to the year earlier. 1994. Gas Corp., Oklahoma City, OK 42590 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices A certification was issued covering all appropriate subdivision thereof, (including A certification was issued covering all workers separated on or after May 18, workers in any agricultural firm or workers separated on or after June 22, 1994. appropriate subdivision thereof) have 1994. become totally or partially separated from TA–W–31,255; Donnkenny Apparel, employment and either— NAFTA–TAA–00515; Stride-Rite Corp., Inc., Christiansburg Garment Co., (2) that sales or production, or both, of Stride-Rite Manufacturing of Christiansburg, VA such firm or subdivision have decreased Missouri, Fulton, MO A certification was issued covering all absolutely, A certification was issued covering all workers separated on or after July 13, (3) that imports from Mexico or Canada of workers separated on or after June 29, 1994. articles like or directly competitive with 1994. articles produced by such firm or subdivision TA–W–31,104; Mitchell Energy Corp., have increased, and that the increases in NAFTA–TAA–00495; Emerson Electric The Woodlands, TX & Operating in imports contributed importantly to such Co., Motor Div., Ava, MO the Following States: A; CO, B; LA, workers’ separations or threat of separation A certification was issued covering all C; NM, D; PA, E; TX and to the decline in sales or production of workers separated on or after June 17, A certification was issued covering all such firm or subdivision; or 1994. workers separated on or after May 26, (4) that there has been a shift in production by such workers’ firm or subdivision to NAFTA–TAA–00499; Tillotson Corp., 1994. Mexico or Canada of articles like or directly Tilly Balloon, Inc., Fall River, MA TA–W–31,105; TA–W–31,106, TA–W– competitive with articles which are produced A certification was issued covering all 31,107, TA–W–31,108, TA–W– by the firm or subdivision. workers separated on or after June 15, 31,109; Mitchell Gas Services, Inc., Negative Determination NAFTA–TAA 1994. Liquid Energy Corp., Southwestern NAFTA–TAA–00501; Wadesboro NAFTA–TAA–00492 & A; Trico Gas Pipeline, Inc., The Woodlands, Manufacturing Manufacturing Co., Industries, Inc., Bradford, PA & TX & Operating in the Following Inc., Wadesboro, NC States: LA, NM, PA, TX Huntington Park, CA A certification was issued covering all The investigation revealed that A certification was issued covering all workers separated on or after June 22, criteria (3) and (4) were not met. There workers separated on or after May 26, 1994. 1994. was no shift in production of subsurface NAFTA–TAA–00502; Gerhart Sales, El TA–W–31,110; TA–W–31,110A, oilwell pump parts & components to Paso, TX Mitchell Energy and Development Canada or Mexico during the period Corp, The Woodlands, TX & MND under investigation. A certification was issued covering all Service, Inc., The Woodlands, TX NAFTA–TAA–00488; Rielly Co., Inc., workers separated on or after June 19, 1994. A certification was issued covering all Valatie, NY workers separated on or after May 26, The investigation revealed that NAFTA–TAA–00531; Hayward Pool 1994. criteria (3) and (4) were not met. A Products, Inc., Elizabeth, NJ TA–W–31,111 & A,B; Brazos Gas survey revealed that although customers A certification was issued covering all Compressing Co., The Woodlands, have declined their purchases from the workers separated on or after July 6, TX, Bridgeport, TX and Meadville, subject firm they do not import apparel 1994. TX from Canada or Mexico. I hereby certify that the aforementioned determinations were A certification was issued covering all NAFTA–TAA–00497; General issued during the months of July and workers separated on or after May 26, Dynamics, Convair Div., San Diego, August, 1995. Copies of these 1994. CA determinations are available for TA–W–31,112; Mitchell Marketing Co., The investigation revealed that criteria (3) and (4) were not met. There inspection in Room C–4318, U.S. The Woodlands, TX Department of Labor, 200 Constitution A certification was issued covering all was no shift in production of the MD– 11 fuselage shipset from the workers’ Avenue, N.W., Washington, DC 20210 workers separated on or after May 26, during normal business hours or will be 1994. firm to Canada or Mexico during the relevant period. mailed to persons who write to the Also, pursuant to Title V of the North above address. American Free Trade Agreement NAFTA–TAA–00496; Commercial Dated: August 7, 1995. Implementation Act (P.L. 103–182) Carriers, Inc., Transport Support, concerning transitional adjustment Inc of The Ryder Automobile Russell Kile, assistance hereinafter called (NAFTA– Carrier Div., Newark, DE Acting Program Manager, Office of Trade TAA) and in accordance with Section The investigation revealed that the Adjustment Assistance. 250(a) Subchapter D, Chapter 2, Title II, workers of the subject firm do not [FR Doc. 95–20263 Filed 8–15–95; 8:45 am] of the Trade Act as amended, the produce an article within the meaning BILLING CODE 4510±30±M Department of Labor presents of Section 250(a) of the Trade Act, as summaries of determinations regarding amended. eligibility to apply for NAFTA–TAA Occupational Safety and Health Affirmative Determinations NAFTA– Administration issued during the month of July and TAA August, 1995. [Docket No. NRTL±3±93] In order for an affirmative NAFTA–TAA–00535; Belden Wire & determination to be made and a Cable Co., Cord Products Div., Factory Mutual Research Corporation certification of eligibility to apply for Bensenville, IL AGENCY: Occupational Safety and Health NAFTA–TAA the following group A certification was issued covering all Administration, Department of Labor. eligibility requirements of Section 250 workers separated on or after June 14, of the Trade Act must be met: 1994. ACTION: Notice of Renewal of Recognition as a Nationally Recognized NAFTA–TAA–00505; Salmon (1) that a significant number or proportion Testing Laboratory. of the workers in the workers’ firm, or an Intermountain, Inc., Salmon, ID Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42591 SUMMARY: This notice announces the technical practices, located in Norwood, components for an effective quality Agency’s final decision on the Factory Massachusetts, and West Gloucester, assurance program. Mutual Research Corporation for Rhode Island, (Exhibit 2B, dated April Monitoring the quality assurance renewal of its recognition as a 19, 1994, and Exhibit 2C, dated March program is carried out routinely. At Nationally Recognized Testing 9, 1995) and the OSHA staff least one audit annually of the Approval Laboratory (NRTL) under 29 CFR recommendation, were subsequently Division is carried out, and additional 1910.7. forwarded to the Assistant Secretary for audits may be required for specific EFFECTIVE DATE: This recognition will a preliminary finding on the problems or conditions. Programs exist become effective on August 16, 1995 application. A notice of FMRC’s for employee feedback, and for problem and will be valid for a period of five application for renewal together with a identification and correction. years from the date, until Asugust 16, positive preliminary finding was Follow-Up and Field Inspection 2000, unless terminated prior to that published in the Federal Register on Procedures date, in accordance with 29 CFR 1910.7. March 29, 1995 (60 FR 16167). FOR FURTHER INFORMATION CONTACT: Interested parties were invited to submit Section 1910.7(b)(2) requires that the NRTL Recognition Program, comments. NRTL provide certain follow-up Occupational Safety and Health There were no responses to the procedures, to the extent necessary, for Administration, U.S. Department of Federal Register notice of the FMRC the particular equipment or material to Labor, 200 Constitution Avenue, N.W., application and preliminary finding be listed, labeled, or accepted. These Room N3653, Washington, D.C. 20210. (Docket No. NRTL–3–93). include implementation of control The Occupational Safety and Health procedures for identifying the listed or SUPPLEMENTARY INFORMATION: Administration has evaluated the entire labeled equipment or materials, Notice of Final Decision record in relation to the regulations set inspecting the production run at factories to assure conformance with Notice is hereby given that the out in 29 CFR 1910.7 and makes the following findings: test standards, and conducting field Factory Mutual Research Corporation inspections to monitor and assure the (FMRC) which made application Capability proper use of the label. pursuant to 29 CFR 1910.7 for renewal Section 1910.7(b)(1) states that for FMRC’s follow-up program is detailed of its recognition as a Nationally in the Operations and Quality Recognized Testing Laboratory, has had each specified item of equipment or material to be listed, labeled or Assurance Manual and discusses the its recognition renewed as an NRTL for initial and subsequent factory follow-up the equipment or material listed below. accepted, the laboratory must have the capability (including proper testing procedures for the approval/listing The addresses of the laboratories process. covered by this application are: equipment and facilities, trained staff, written testing procedures, and Factory Mutual Research Corporation 1151 Boston-Providence Turnpike, has sections dealing with approval or Norwood, Massachusetts 02062, 743 calibration and quality control programs) to perform appropriate listing status and approval guide and Reynolds Road, West Glocester, listing procedures in its Operations and Rhode Island 02814 testing. The on-site review reports indicate Quality Assurance Manual. These Background that FMRC has facilities, personnel, and sections deal with requirements and testing equipment which are limitations for the use of FMRC’s When OSHA published its standard certification marks. for NRTLs at 29 CFR 1910.7, it appropriate for the areas of recognition temporarily recognized Factory Mutual it seeks. The laboratories have available Independence Research Corporation (FMRC) and all of the general test equipment to Section 1910.7(b)(3) requires that the Underwriters Laboratories Incorporated perform the testing required by the NRTL be completely independent of (UL). Both organizations had already standards. If any additional test employers subject to the tested been referenced by the Occupational equipment is necessary, it will be equipment requirements, and of my Safety and Health Administration purchased or leased as required. manufacturers or vendors of equipment (OSHA) as acceptable organizations for The two FMRC facilities have or materials being tested for these testing or certifying certain workplace adequate equipment calibration purposes. equipment and materials. Appendix A procedures. There is a Test Equipment OSHA believes, based upon an of section 1907 stated, in part, that Coordinator who is responsible for the examination of the application, that the Factory Mutual Research Corporation accuracy of test equipment as well as for Factory Mutual Research Corporation is was recognized temporarily as a reference measurement standards. All independent of employers subject to the nationally recognized testing laboratory electrical measuring instruments are tested equipment requirements and of by the Assistant Secretary for a five-year calibrated at least once a year. any manufacturers or vendors of period from June 13, 1988 through June FMRC utilizes an alpha-numeric equipment or materials being tested for 13, 1993. At the end of this five-year system for tracking jobs in-house. The these purposes, within the meaning of period FMRC was required to apply for Operations and Quality Assurance 29 CFR 1910.7(b)(3). renewal of that OSHA recognition Manual addresses record keeping utilizing certain specified procedures. requirements, including retention times. Creditable Reports/Complaint Handling FMRC applied for renewal of its Test procedures are also listed in this Section 1910.7(b)(4) provides that an recognition as an NRTL within the Manual. All test standards are stored on- OSHA recognized NRTL must maintain specified time frame (application dated site. effective procedures for producing October 8, 1992) and retained temporary The Operations and Quality creditable findings and reports that are recognition pending OSHA’s final Assurance manual documents the objective and without bias, as well as for decision in this renewal process. The procedures for the control of quality of handling complaints and disputes under final on-site review report, consisting of operations. It includes methods for a fair and reasonable system. on-site evaluations of FMRC testing evaluating and correcting quality system FMRC’s application as well as the on- facilities, including administrative and problems and includes all necessary site review report indicate that FMRC 42592 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices does maintain effective procedures for procedures and specific criteria as and a sample product is sent to FMRC producing creditable findings and detailed in 60 FR 12980, March 9, 1995, for its review. reports that are objective. pertaining to the types of programs and The program allows for unannounced The Operations and Quality procedures that NRTLs may engage in on-site visits to the manufacturer’s Assurance Manual describes in detail under the OSHA/NRTL program. See facility to verify compliance with the the various aspects of procedures for Exhibit 2C, an addendum to the original program. An up-to-date listing is testing and for all written reports, as ‘‘On-Site Review Report (Survey)’’, maintained of the manufacturing well as record keeping requirements dated March 10, 1995, (Exhibit 2B), laboratories that are qualified under this including retention times. which reviews the following programs program. With regard to the handling of on the basis of their conformance to the International Electrotechnical complaints or contested results, if programs described in 60 FR 12980, Commission (IEC) CB Scheme—The clients, FMRC personnel, users, or March 9, 1995, ‘‘Nationally Recognized IEC–CB Scheme is a certification others, file a complaint or disagree with Testing Laboratories; Clarification of the program for gaining product approval a decision relating to the test standard, Types of Programs and Procedures’’. recognition on an international level. engineering, use, or inspection, they can Basic Program—This program is one Products tested by any National present and discuss their views with in which FMRC performs all of the Certification Body (NCB) that various administrative levels of FMRC necessary product testing and participates in the CB Scheme will be personnel, up to and including the Chief evaluation in-house prior to issuing a accepted for approval without the need Operating Officer in an effort to resolve certification. for retesting in other member (of the CB any disagreement. Witnessed Test Data Program—This Scheme) countries. Test Standards program is utilized when characteristics Eligibility in the CB Scheme requires Section 1910.7 requires that an NRTL such as the size, complexity, or that members be recognized by their use ‘‘appropriate test standards’’, which uniqueness of a product require testing own governments as an accredited are defined, in part, to include any at the manufacturer’s or other outside national organization having the standard that is currently designated as laboratory’s facilities, or when a authority to issue a listing or place a an American National Standards manufacturer is entering the Laboratory mark on products that meet specific Institute (ANSI) safety designated Qualification Program. The tests are in national standards. product standard or an American accordance with the appropriate FMRC is accredited by the IEC for Society for Testing and Materials recognized standard(s) and are testing and evaluating electrical (ASTM) test standard used for witnessed by an FMRC technical equipment for measurement,processing evaluation of products or materials. As representative. The specific information equipment including electrical business to the non-ANSI, FMRC and UL test required by the FMRC Operations and equipment. standards for which FMRC has applied Quality Assurance Manual to ensure Interlaboratory Agreements—FMRC to test products to, OSHA examined the equivalency with tests conducted at tests products for, and accepts test data status of the Factory Mutual Research FMRC is recorded in the Project Data from, internationally recognized Corporations standards and Record (test notebook). laboratories which have interlaboratory Underwriters Laboratories Inc. FMRC Laboratory Qualification agreements with FMRC. The laboratory Standards for Safety with particular Program—Since 1979, manufacturers of generating the test data conducts these attention to the method of their electrical utilization equipment (process tests in accordance with the nationally development, revision and control and test and measuring recognized standards of the laboratory implementation, and determined that instrumentation for use in ordinary certifying the product. Regularly both groups of standards are appropriate ‘‘non-hazardous’’ locations) meeting scheduled audits are conducted at each test standards under the criteria specific criteria, have been allowed to laboratory to ensure the competence of described in 29 CFR 1910.7(c) (1), (2), submit test data to FMRC to be used as the laboratory. The audits include a and (3). That is, these standards specify a part of the approval process. The data review of personnel, test equipment, test the safety requirements for specific submitted by the manufacturer may be procedures, documentation control, and equipment or classes of equipment and used in lieu of tests conducted by FMRC quality of operation. are recognized in the United States as or, at its discretion, FMRC may conduct FMRC asserts that it may accept safety standards providing adequate comparative tests to ensure accurateness components which have been tested at levels of safety; they are compatible and of manufacturers’ supplied data. This other laboratories after review of the test remain current with periodic revisions includes a review of the product report and any additional evaluation of applicable national codes and submitted for approval. necessary. The evaluation by the installation standards; and they are The qualification procedures include applicant includes an assurance that the developed by a standards developing on-site assessments and an evaluation other laboratory’s performance meets organization under a method providing for usage of proper standards, client the level that FMRC would provide had for input and consideration of views of personnel, testing facilities and it performed the service. verification testing. Part of the program industry groups, experts, users, Final Decision and Order consumers, governmental authorities, includes periodic review visits. and others having broad experience in A specific department of the client is Based upon a preponderance of the the safety fields involved. qualified to generate the necessary test evidence resulting from an examination and evaluation information that a of the complete application, the Programs and Procedures product meets the appropriate supporting documentation, and the As discussed in the Federal Register standards. Test equipment, calibration OSHA staff finding including the on-site notice (60 FR 16167), FMRC administers program, test personnel, test procedures, report, OSHA finds that the Factory several operational programs and design origination and change, and the Mutual Research Corporation has met procedures. The following programs marking and documentation submittal the requirements of 29 CFR 1910.7 to have been examined and found to be are specified in the Laboratory have its recognition renewed by OSHA acceptable to OSHA on the basis of the Qualification Report. The information as a Nationally Recognized Testing Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42593 Laboratory to test and certify certain ANSI/ISA S12.12—Electrical Equipment ANSI/UL 698—Industrial Control equipment or materials. for Use in Class I, Division 2, Equipment for Use in Hazardous Pursuant to the authority in 29 CFR Hazardous (Classified) Locations (Classified) Locations 1910.7, the Factory Mutual Research ANSI/ISA S12.13.1—Performance ANSI/UL 711—Fire Extinguishers, Corporation’s recognition as a Requirements for Combustible Gas Rating and Fire Testing of Nationally Recognized Testing Detectors ANSI/UL 753—Alarms Accessories for Laboratory is hereby renewed subject to ANSI/ISA S12.15—Hydrogen Sulfide Automatic Water-Supply Control the limitations and conditions listed Detection Instruments Valves below: ANSI/ISA S82.01—Electrical and ANSI/UL 781—Portable Electric Electronic Test, Measuring Lighting Units for Use in Hazardous Limitations Equipment (Classified) Locations This recognition is limited to ANSI/ISA S82.02—Electrical and ANSI/UL 823—Electric Heaters for Use equipment or materials which, under 29 Electronic Test and Measuring in Hazardous (Classified) Locations CFR Part 1910, require testing, listing, Equipment ANSI/UL 827—Central-Stations for labeling, approval, acceptance, or ANSI/ISA S82.03—Electrical and Watchmen, Fire-Alarm, and certification, by a Nationally Recognized Electronic Process Measuring and Supervisory Services Testing Laboratory. This recognition is Control ANSI/UL 844—Electric Lighting limited to the use of the following test ANSI/NEMA ICS 2—Industrial Control Fixtures for Use in Hazardous standards for the testing and Devices, Controllers and (Classified) Locations certification of equipment or materials Assemblies ANSI/UL 863—Electric Time-Indicating included within the scope of these ANSI/NEMA 250—Enclosures for and -Recording Appliances standards: Electrical Equipment ANSI/UL 864—Control Units for Fire- • FMRC has stated that all the ANSI/NFPA 11—Low Expansion Foam Protective Signaling Systems standards in these categories are used to and Combined Agent Systems ANSI/UL 877—Circuit Breakers and test equipment or materials which may ANSI/NFPA 11A—Medium- and High- Circuit-Breaker Exclosure for Use in be used in environments under OSHA’s Expansion Foam Systems Hazardous (Classified) Locations jurisdiction. These standards are all ANSI/NFPA 12—Carbon Dioxide ANSI/UL 886—Electrical Outlet Boxes considered appropriate test standards Extinguishing Systems and Fittings for Use in Hazardous ANSI/NFPA 12A—Halon 1301 Fire under 29 CFR 1910.7(c): (Classified) Locations Extinguishing Agent Systems ANSI/UL 894—Switches for Use in FMRC 1110—Indicator Posts ANSI/NFPA 13—Installation of FMRC 1221—Backflow Preventers Hazardous (Classified) Locations Sprinkler Systems ANSI/UL 913—Intrinsically Safe FMRC 1321—Controllers for Electric ANSI/NFPA 16—Deluge Foam-Water Apparatus and Associated Motor Driven Fire Pumps Sprinkler and Spray Systems Apparatus for Use in Class I, II, and FMRC 1333—Diesel Engine Fire Dump ANSI/NFPA 17—Dry Chemical III, Division I, Hazardous Drivers Extinguishing Systems FMRC 1635—Plastic Pipe and Fittings ANSI/NFPA 20—Centrifugal Fire (Classified) Locations for Automatic Sprinkler Systems Pumps ANSI/UL 1002—Electrically Operated FMRC 3600—Electrical Equipment for ANSI/NFPA 72—Installation, Valve for Use in Hazardous Use in Hazardous (Classified) Maintenance, and Use of Protective (Classified) Locations Locations, General Requirements Signaling Systems ANSI/UL 1058—Halogen Agent FMRC 3610—Intrinsically Safe ANSI/UL 8—Foam Fire Extinguishers Extinguishing System Units Apparatus and Associated ANSI/UL 38—Manually Actuated ANSI/UL 1093—Halogenated Agent Fire Apparatus for Use in Class I, II and Signaling Boxes for Use With Fire- Extinguishers III, Division 1 Hazardous Protective Signaling Systems ANSI/UL 1203—Explosion-Proof and (Classified) Locations ANSI/UL 154—Carbon-Dioxide Fire Dust-Ignition-Proof Electrical FMRC 3611—Electrical Equipment for Extinguishers Equipment for Use in Hazardous Use in Class I, Division 2; Class II, ANSI/UL 162—Foam Equipment and (Classified) Locations Division 2; and Class III, Division 1 Liquid Concentrates UL 1206—Electrical Commercial and 2 Hazardous Locations ANSI/UL 299—Dry Chemical Fire Clothes-Washington Equipment FMRC 3615—Explosionproof Electrical Extinguishers ANSI/UL 1207—Sewage Pumps for Use Equipment, General Requirements ANSI/UL 346—Waterflow Indicators for in Hazardous (Classified) Locations FMRC 3620—Purged and Pressurized Fire Protective Signaling Systems UL 1236—Electric Battery Chargers Electrical Equipment for Hazardous ANSI/UL 347—High-Voltage Industrial UL 1240—Electric Commercial Clothes- (Classified) Locations Control Equipment Drying Equipment FMRC 3810—Electrical and Electronic ANSI/UL 508—Electric Industrial ANSI/UL 1254—Pre-Engineered Dry Test, Measuring, and Process Control Equipment Chemical Extinguishing System Control Equipment ANSI/UL 558—Industrial Trucks, Units FMRC 6051—Safety Containers and Internal Combustion Engine- ANSI/UL 1262—Laboratory Equipment Filing, Supply and Disposal Powered ANSI/UL 1555—Electric Coin-Operated Containers ANSI/UL 583—Electric-Battery-Powered Clothes-Washing Equipment FMRC 6310—Combustible Gas Detectors Industrial Trucks ANSI/UL 1556—Electric Coin-Operated FMRC 7812—Industrial Trucks—LP-Gas ANSI/UL 626—21⁄2 Gallon Stored- Clothes-Drying Equipment FMRC 7816—Industrial Trucks—LP-Gas Pressure, Water-Type Fire Conditions Dual Fuel Extinguishers FMRC 7820—Industrial Trucks— UL 664—Commercial (Class IV) Electric The Factory Mutual Research Electric Dry-Cleaning Machines Corporation shall also abide by the ANSI Z8.1—Commercial Laundry and ANSI/UL 674—Electric Motors and following conditions of its recognition, Drycleaning Equipment and Generators for Use in Hazardous in addition to those already required by Operations (Classified) Locations 29 CFR 1910.7: 42594 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices • The Occupational Safety and Health EFFECTIVE DATE: This recognition will On January 12, 1994, ACIL (formerly, Administration shall be allowed access become effective on August 16, 1995 the American Council of Independent to FMRC’s facilities and records for and will be valid for a period of five Laboratories, Inc.) requested an purposes of ascertaining continuing years from that date, until August 16, extension of time in which to submit compliance with the terms of its 2000, unless terminated prior to that comments on the application (Ex. 4–2). recognition and to investigate as OSHA date, in accordance with 29 CFR 1910.7. The ACIL claimed that its preliminary deems necessary; FOR FURTHER INFORMATION CONTACT: investigation had uncovered • If FMRC has reason to doubt the NRTL Recognition Program, ‘‘substantial deficiencies’’ in the efficacy of any test standard it is using Occupational Safety and Health application and that more time was under this program, it shall promptly Administration, U.S. Department of necessary to submit pertinent inform the organization that developed Labor, 200 Constitution Avenue, N.W., documentation related to the instant the test standard of this fact and provide Room N3653, Washington, D.C. 20210 . application. ACIL raised the issue of that organization with appropriate whether the applicant is completely relevant information upon which its SUPPLEMENTARY INFORMATION: independent from the parent concerns are based;′ Notice of Final Decision organization. According to the ACIL, the • resolution of the questions raised would FMRC shall not engage in or permit Notice is hereby given that TUV others to engage in any require, among other things, the study Rheinland of North America, Inc. and analysis of relevant German laws misrepresentation of the scope or (TUV), which made application for conditions of its recognition. As part of and requested additional time until recognition pursuant to 29 CFR 1910.7 March 18, 1994, to file its comments on this condition, FMRC agrees that it will for recognition as a Nationally allow no representation that it is either TUV’s application. (See Ex. 4–2). Recognized Testing Laboratory, has The applicant responded to ACIL’s a recognized or accredited Nationally been recognized as a Nationally Recognized Testing Laboratory (NRTL) comments on February 8, 1994, refuting Recognized Testing Laboratory for the ACIL’s statement that TUV Rheinland of without clearly indicating the specific equipment or material listed below. equipment or material to which this North America, Inc. may not be able to The address of the laboratory covered operate independently of TU¨ V recognition is tied, or that its by this recognition is: TUV Rheinland of recognition is limited to certain Rheinland of Cologne. (See Ex. 5). North America, Inc., 12 Commerce After a careful review of all products; Road, Newtown, Connecticut 06470. • FMRC shall inform OSHA as soon comments, the request for an extension as possible, in writing, of any change of Background of time for comment was accepted by ownership, facilities, or key personnel, OSHA, and the comment period was TUV Rheinland of North America, actually extended until April 4, 1994, including details; Inc. is a privately held Product Safety (59 FR 10432). (See Ex. 6). • FMRC shall continue to meet the and Quality Assurance Testing firm Two comments were received in requirements for recognition in all areas with offices throughout the United response to 59 FR 10432, the Federal where it has been recognized; and States and Canada. TUV Rheinland of • Register notice of extension of the FMRC shall always cooperate with North America, Inc. is wholly owned by comment period. OSHA to assure with the spirit as well TU¨ V Rheinland e. V. of Cologne, One comment, dated March 3, 1994, as the letter of its recognition and 29 Germany. The only facility for which was from MET Laboratories, Inc. (MET), CFR 1910.7. TUV has requested recognition is its and discussed TUV/NA’s application for Effective Date: This recognition will North American Headquarters located in a registered certification mark and the become effective on August 16, 1995 Newtown, Connecticut (see Exhibit 2. status of TUV as a U.S. corporation. (See and will be valid for a period of five C., p 2 of cover letter, and Attachments Ex. 7–2). years from that date, until August 16, 2, 3, and 4). TUV Rheinland of North The other comment was from ACIL, 2000, unless terminated prior to that America, Inc. is a U.S. corporation and was dated March 4, 1994. The major date, in accordance with 29 CFR 1910.7. incorporated in the state of Delaware in issues raised pertained to the status of Signed at Washington, D.C. this 10th day 1983. (See Ex. 2. E., Att. 5). TUV as ‘‘foreign based’’; the improper of August, 1995. On November 19, 1993, the use of a certification mark; and TUV Joseph A. Dear, Occupational Safety and Health Rheinland as an association consisting, Assistant Secretary. Administration published a notice of in part, of manufacturers. (See Ex. 7–1). [FR Doc. 95–20259 Filed 8–15–95; 8:45 am] application for recognition as a After a thorough review of the BILLING CODE 4510±26±M nationally recognized testing laboratory comments and TUV’s response, dated of TUV Rheinland of North America, July 28, 1994 (Ex. 8), by both OSHA and Inc. in the Federal Register, pursuant to the Office of the Solicitor of the U.S. [Docket No. NRTL±3±92] 29 CFR 1910.7 (58 FR 61101). The Department of Labor, the determination TUV Rheinland of North America, Inc. notice included a preliminary finding was made that the applicant is that TUV could meet the requirements independent in the sense that it is not AGENCY: Occupational Safety and Health for recognition detailed in 29 CFR a foreign entity or foreign based. While Administration, Department of Labor. 1910.7 and it invited public comment TUV Rheinland of North America, Inc., ACTION: Notice of Recognition as a on the application by January 18, 1994. which is incorporated in the United ¨ Nationally Recognized Testing On January 6, 1994, MET States, is a subsidiary of TUV Rheinland Laboratory. Laboratories, Inc. (MET) submitted e. V., which is based in Cologne, comments in response to the Germany, it is no different from other SUMMARY: This notice announces the preliminary finding (58 FR 61101) NRTLs which are incorporated in the Agency’s final decision on the opposing TUV’s recognition as a NRTL U.S. and owned by foreign entities, and application of TUV Rheinland of North primarily based upon OSHA’s not which are not considered as foreign America as a Nationally Recognized having referenced a determination of based. Further, the decision whether or Testing Laboratory (NRTL) under 29 TUV/NA’s status as either a foreign not to certify a product under the NRTL CFR 1910.7. entity or foreign based. (See Ex. 4–1). program is made solely by TUV Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42595 Rheinland of North America, Inc. If a Creditable Reports/Complaint Handling standard that is currently designated as formal interpretation of any portion of a Section 1910.7(b)(4) provides that an an American National Standards standard used to certify a product in OSHA recognized NRTL must maintain Institute (ANSI) safety designated conjunction with the Nationally effective procedures for producing product standard or an American Recognized Testing Laboratory (NRTL) creditable findings and reports that are Society for Testing and Materials program is necessary, it will be objective and without bias. TUV (ASTM) test standard used for determined by means of internal staff Rheinland of North America, Inc. meets evaluation of products or materials. meetings among senior engineers of these criteria. The standard that TUV has requested TUV Rheinland of North America, Inc. TUV’s application as well as the on- is an ANSI/UL standard and, therefore, In the event that an interpretation issue site review report indicate that the meets the requirements of section remains after such a meeting, it will be applicant does maintain effective 1910.7(c). referred to the appropriate Technical procedures for producing creditable Final Decision and Order Advisory Group (TAG) which, for the findings and reports that are objective. ANSI/UL 1950 test standard, is the U.S. The laboratory maintains a written Based upon a preponderance of TAG Technical Committee (TC) 74 of procedure for identifying product evidence resulting from an examination the International Electrotechnical samples submitted for testing to ensure of the complete application, the Commission (IEC). (See Ex. 9). that there is no confusion regarding the supporting documentation, the With regard to its application to the identity of the samples or the results of comments and rebuttal from TUV, and the OSHA staff finding including the U.S. Patent and Trademark Office for a the measurement. These procedures on-site report, OSHA finds that TUV certified registration mark, TUV include the receipt, retention, and disposal of products submitted for Rheinland of North America, Inc. has Rheinland of North America, Inc. has testing. met the requirements of 29 CFR 1910.7 filed an application for a certification TUV also has a procedure for to be recognized by OSHA as a mark registration which, in addition to handling complaints from any Nationally Recognized Testing a design, will also contain the name of interested parties as well as clients. Laboratory to test and certify certain the organization, i.e., ‘‘ TUV Rheinland equipment or materials. of North America, Inc.’’. (See Ex’s. 8 and Type of Testing Pursuant to the authority in 29 CFR 10). The standard contemplates that 1910.7, TUV Rheinland of North The Occupational Safety and Health testing done by NRTLs fall into one of America, Inc., is hereby recognized as a Administration has evaluated the entire two categories: Testing to determine Nationally Recognized Testing record in relation to the regulations set conformance with appropriate test Laboratory subject to the limitations and out in 29 CFR 1910.7 and makes the standards, or experimental testing conditions listed below: following findings: where there might not be one specific test standard covering the new product Limitations Capability or material. TUV has applied for This recognition is limited to recognition in the first category. Section 1910.7(b)(1) states that for equipment or materials which, under 29 each specified item of equipment or Follow-Up Procedures CFR Part 1910, require testing, listing, material to be listed, labeled or Section 1910.7(b)(2) requires that the labeling, approval, acceptance, or accepted, the laboratory must have the NRTL provide certain follow-up certification, by a Nationally Recognized capability (including proper testing procedures, to the extent necessary, for Testing Laboratory. This recognition is equipment and facilities, trained staff, the particular equipment or material to limited to the use of the following test written testing procedures, and be listed, labeled, or accepted. These standard for the testing and certification calibration and quality control include implementation of control of equipment or materials included programs) to perform appropriate within the scope of this standard: procedures for identifying the listed or • testing. labeled equipment or materials, TUV has stated that the standard is The on-site review report indicates inspecting the production run at used to test and certify equipment or that TUV does have testing equipment factories to assure conformance with materials which may be used in and facilities appropriate for the areas of test standards, and conducting field environments under OSHA’s recognition it seeks. The laboratory has inspections to monitor and assure the jurisdiction. This standard is considered available all the general test equipment proper use of the label. an appropriate test standard under 29 required to perform the testing required TUV has a written procedure making CFR 1910.7(c): by the standards. its clients subject to four unannounced ANSI/UL 1950—Information on-site follow-up inspections annually. Technology Equipment Including TUV’s laboratory has adequate floor This formal inspection procedure Electrical Business Equipment space for testing and evaluation and an includes standardized inspection forms. adequate number of technical and Conditions Listed products are also subject to field professional personnel to accomplish audits. TUV reserves the right to TUV Rheinland of North America, the services required for the present conduct field audits on any certified or Inc. shall also abide by the following workload in the areas of recognition it listed product by purchasing the conditions of its recognition, in addition seeks. Environmental conditions in the product from the manufacturer, to those already required by 29 CFR laboratory are adequately controlled for distributor, or retailer. The audit 1910.7: the type of testing performing in the procedure is the same that for a follow- • The Occupational Safety and Health laboratory. up inspection. Administration shall be allowed access OSHA has determined that TUV has to TUV’s facilities and records for appropriate written test procedures, and Test Standards purposes of ascertaining continuing calibration and quality control programs Section 1910.7 requires that an NRTL compliance with the terms of its to enable it to adequately perform use ‘‘appropriate test standards’’, which recognition and to investigate as OSHA appropriate testing. are defined, in part, to include any deems necessary; 42596 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices • Because of the interval between the be held at the Old Post Office, 1100 NUCLEAR REGULATORY on-site assessment and this recognition, Pennsylvania Avenue, N.W., COMMISSION those procedures authorized by the Washington, D.C. 20506. ‘‘Nationally Recognized Testing Advisory Committee on Reactor FOR FURTHER INFORMATION CONTACT: Laboratories; Clarification of the Types Safeguards, Subcommittee Meeting on of Programs and Procedures,’’ 60 FR David C. Fisher, Advisory Committee Planning and Procedures; Notice of 12980, dated March, 9, 1995, must be Management Officer, National Meeting applied for in accordance with the Endowment for the Humanities, requirements specified therein; Washington, D.C. 20506; telephone The ACRS Subcommittee on Planning • If TUV has reason to doubt the (202) 606–8322. Hearing-impaired and Procedures will hold a meeting on efficacy of any test standard it is using individuals are advised that information September 6, 1995, Room T–2B1, 11545 under this program, it shall promptly on this matter may be obtained by Rockville Pike, Rockville, Maryland. inform the organization that developed contacting the Endowment’s TDD The entire meeting will be open to the test standard of this fact and provide terminal on (202) 606–8282. public attendance, with the exception of that organization with appropriate a portion that may be closed pursuant SUPPLEMENTARY INFORMATION: The relevant information upon which its to 5 U.S.C. 552b(c) (2) and (6) to discuss proposed meetings are for the purpose organizational and personnel matters concerns are based; of panel review, discussion, evaluation • TUV shall not engage in or permit that relate solely to internal personnel and recommendation on applications others to engage in any rules and practices of ACRS, and for financial assistance under the misrepresentation of the scope or matters the release of which would National Foundation on the Arts the conditions of its recognition. As part of constitute a clearly unwarranted Humanities Act of 1965, as amended, this condition, TUV agrees that it will invasion of personal privacy. including discussion of information allow no representation that it is either The agenda for the subject meeting given in confidence to the agency by the a recognized or accredited Nationally shall be as follows: grant applicants. Because the proposed Recognized Testing Laboratory (NRTL) meetings will consider information that without clearly indicating the specific Wednesday, September 6, 1995–1:00 is likely to disclose: (1) trade secrets and equipment or material to which this p.m. Until the Conclusion of Business commercial or financial information recognition is tied, or that its obtained from a person and privileged The Subcommittee will discuss recognition is limited to certain or confidential; or (2) information of a proposed ACRS activities and related products; matters. The purpose of this meeting is • TUV shall inform OSHA as soon as personal nature the disclosure of which would constitute a clearly unwarranted to gather information, analyze relevant possible, in writing, of any change of issues and facts, and to formulate ownership, facilities, or key personnel, invasion of personal privacy, pursuant to authority granted me by the proposed positions and actions, as including details; appropriate, for deliberation by the full • Chairman’s Delegation of Authority to TUV shall continue to meet the Committee. requirements for recognition in all areas Close Advisory Committee meetings, dated July 19, 1993, I have determined Oral statements may be presented by where it has been recognized; and members of the public with the • TUV shall continue to cooperate that these meetings will be closed to the concurrence of the Subcommittee with OSHA to assure compliance with public pursuant to subsections (c) (4), Chairman; written statements will be the spirit as well as the letter of its and (6) of section 552b of Title 5, United accepted and made available to the recognition and 29 CFR 1910.7. States Code. Effective Date: This recognition will Committee. Electronic recordings will 1. DATE: September 14–16, 1995. be permitted only during those portions become effective on August 16, 1995 TIME: 9 a.m. to 5:30 p.m. of the meeting that are open to the and will be valid for a period of five ROOM: 430. years from that date, until August 16, PROGRAM: This meeting will review public, and questions may be asked only 2,000, unless terminated prior to that applications submitted to Special Projects for by members of the Subcommittee, its date, in accordance with 29 CFR 1910.7. the Special Competitive deadline of July 28, consultants, and staff. Persons desiring 1995, submitted to the Division of Public to make oral statements should notify Signed at Washington, D.C. this 10 day of Programs, for the projects beginning after the cognizant ACRS staff person named August, 1995. January 1, 1996 below five days prior to the meeting, if Joseph A. Dear, 2. DATE: September 15, 1995. possible, so that appropriate Assistant Secretary. TIME: 8:30 a.m. to 5 p.m. arrangements can be made. [FR Doc. 95–20258 Filed 8–15–95; 8:45 am] ROOM: 315. Further information regarding topics BILLING CODE 4510±26±M PROGRAM: This meeting will review to be discussed, the scheduling of applications for projects in Interpretive Research Conference Projects, submitted to sessions open to the public, whether the the Division of Research Programs, for meeting has been cancelled or NATIONAL FOUNDATION ON THE projects beginning after January 1, 1996. rescheduled, the Chairman’s ruling on ARTS AND THE HUMANITIES 3. DATE: September 25–26, 1995. requests for the opportunity to present TIME: 9 a.m. to 5:30 p.m. oral statements, and the time allotted Meetings of Humanities Panel ROOM: 315. therefor can be obtained by contacting AGENCY: National Endowment for the PROGRAM: This meeting will review the cognizant ACRS staff person, Dr. Humanities. proposals submitted to the September 15 John T. Larkins (telephone: 301/415– deadline in the Higher Education Humanities ACTION: Notice of meetings. 7360) between 7:30 a.m. and 4:15 p.m. Focus Grants Program, for projects beginning (EDT). Persons planning to attend this after April 1996. SUMMARY: Pursuant to the provisions of meeting are urged to contact the above the Federal Advisory Committee Act David C. Fisher, Jr., named individual one or two working (Public Law 92–463, as amended), Advisory Committee, Management Officer. days prior to the meeting to be advised notice is hereby given that the following [FR Doc. 95–20280 Filed 8–15–95; 8:45 am] of any changes in schedule, etc., that meetings of the Humanities Panel will BILLING CODE 7536±01±M may have occurred. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42597 Dated: August 10, 1995. publication of this notice will be is filed by the above date, the Sam Duraiswamy, considered in making any final Commission or an Atomic Safety and Chief, Nuclear Reactors Branch. determination. Licensing Board, designated by the [FR Doc. 95–20236 Filed 8–15–95; 8:45 am] Normally, the Commission will not Commission or by the Chairman of the issue the amendment until the BILLING CODE 7590±01±M Atomic Safety and Licensing Board expiration of the 30-day notice period. Panel, will rule on the request and/or However, should circumstances change petition; and the Secretary or the Biweekly Notice during the notice period such that designated Atomic Safety and Licensing failure to act in a timely way would Board will issue a notice of a hearing or Applications and Amendments to result, for example, in derating or an appropriate order. Facility Operating LicensesInvolving shutdown of the facility, the As required by 10 CFR 2.714, a No Significant Hazards Considerations Commission may issue the license petition for leave to intervene shall set I. Background amendment before the expiration of the forth with particularity the interest of 30-day notice period, provided that its the petitioner in the proceeding, and Pursuant to Public Law 97-415, the final determination is that the how that interest may be affected by the U.S. Nuclear Regulatory Commission amendment involves no significant results of the proceeding. The petition (the Commission or NRC staff) is hazards consideration. The final should specifically explain the reasons publishing this regular biweekly notice. determination will consider all public why intervention should be permitted Public Law 97-415 revised section 189 and State comments received before with particular reference to the of the Atomic Energy Act of 1954, as action is taken. Should the Commission following factors: (1) the nature of the amended (the Act), to require the take this action, it will publish in the petitioner’s right under the Act to be Commission to publish notice of any Federal Register a notice of issuance made a party to the proceeding; (2) the amendments issued, or proposed to be and provide for opportunity for a nature and extent of the petitioner’s issued, under a new provision of section hearing after issuance. The Commission property, financial, or other interest in 189 of the Act. This provision grants the expects that the need to take this action the proceeding; and (3) the possible Commission the authority to issue and will occur very infrequently. effect of any order which may be make immediately effective any Written comments may be submitted entered in the proceeding on the amendment to an operating license by mail to the Rules Review and petitioner’s interest. The petition should upon a determination by the Directives Branch, Division of Freedom also identify the specific aspect(s) of the Commission that such amendment of Information and Publications subject matter of the proceeding as to involves no significant hazards Services, Office of Administration, U.S. which petitioner wishes to intervene. consideration, notwithstanding the Nuclear Regulatory Commission, Any person who has filed a petition for pendency before the Commission of a Washington, DC 20555, and should cite leave to intervene or who has been request for a hearing from any person. the publication date and page number of admitted as a party may amend the This biweekly notice includes all this Federal Register notice. Written petition without requesting leave of the notices of amendments issued, or comments may also be delivered to Board up to 15 days prior to the first proposed to be issued from July 21, Room 6D22, Two White Flint North, prehearing conference scheduled in the 1995, through August 4, 1995. The last 11545 Rockville Pike, Rockville, proceeding, but such an amended biweekly notice was published on Maryland from 7:30 a.m. to 4:15 p.m. petition must satisfy the specificity Wednesday, August 2, 1995 (60 FR Federal workdays. Copies of written requirements described above. 39430). comments received may be examined at Not later than 15 days prior to the first the NRC Public Document Room, the prehearing conference scheduled in the Notice Of Consideration Of Issuance Of Gelman Building, 2120 L Street, NW., proceeding, a petitioner shall file a Amendments To Facility Operating Washington, DC. The filing of requests supplement to the petition to intervene Licenses, Proposed No Significant for a hearing and petitions for leave to which must include a list of the Hazards Consideration Determination, intervene is discussed below. contentions which are sought to be And Opportunity For A Hearing By September 15, 1995, the licensee litigated in the matter. Each contention The Commission has made a may file a request for a hearing with must consist of a specific statement of proposed determination that the respect to issuance of the amendment to the issue of law or fact to be raised or following amendment requests involve the subject facility operating license and controverted. In addition, the petitioner no significant hazards consideration. any person whose interest may be shall provide a brief explanation of the Under the Commission’s regulations in affected by this proceeding and who bases of the contention and a concise 10 CFR 50.92, this means that operation wishes to participate as a party in the statement of the alleged facts or expert of the facility in accordance with the proceeding must file a written request opinion which support the contention proposed amendment would not (1) for a hearing and a petition for leave to and on which the petitioner intends to involve a significant increase in the intervene. Requests for a hearing and a rely in proving the contention at the probability or consequences of an petition for leave to intervene shall be hearing. The petitioner must also accident previously evaluated; or (2) filed in accordance with the provide references to those specific create the possibility of a new or Commission’s ‘‘Rules of Practice for sources and documents of which the different kind of accident from any Domestic Licensing Proceedings’’ in 10 petitioner is aware and on which the accident previously evaluated; or (3) CFR Part 2. Interested persons should petitioner intends to rely to establish involve a significant reduction in a consult a current copy of 10 CFR 2.714 those facts or expert opinion. Petitioner margin of safety. The basis for this which is available at the Commission’s must provide sufficient information to proposed determination for each Public Document Room, the Gelman show that a genuine dispute exists with amendment request is shown below. Building, 2120 L Street, NW., the applicant on a material issue of law The Commission is seeking public Washington, DC and at the local public or fact. Contentions shall be limited to comments on this proposed document room for the particular matters within the scope of the determination. Any comments received facility involved. If a request for a amendment under consideration. The within 30 days after the date of hearing or petition for leave to intervene contention must be one which, if 42598 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices proven, would entitle the petitioner to the petition and/or request should be to the TSs by accomplishing the relief. A petitioner who fails to file such granted based upon a balancing of following: (1) relocating existing a supplement which satisfies these factors specified in 10 CFR requirements to licensee controlled requirements with respect to at least one 2.714(a)(1)(i)-(v) and 2.714(d). documents consistent with the policy contention will not be permitted to For further details with respect to this statement; (2) eliminating requirements participate as a party. action, see the application for which duplicate regulations; (3) Those permitted to intervene become amendment which is available for relocating similar requirements within parties to the proceeding, subject to any public inspection at the Commission’s the same section; (4) editorial changes; limitations in the order granting leave to Public Document Room, the Gelman and (5) adding requirements consistent intervene, and have the opportunity to Building, 2120 L Street, NW., with NUREG-1432. participate fully in the conduct of the Washington, DC, and at the local public In addition, the licensee proposes hearing, including the opportunity to document room for the particular dual rolls for the Shift Technical present evidence and cross-examine facility involved. Advisor (STA) and the establishment of witnesses. a TS Bases Control Program. Allowing If a hearing is requested, the Baltimore Gas and Electric Company, Docket Nos. 50-317 and 50-318, Calvert the STA to perform dual rolls is not Commission will make a final permitted by the current TSs, but the determination on the issue of no Cliffs Nuclear Power Plant, Unit Nos. 1 and 2, Calvert County, Maryland current NRC guidance allows the STA to significant hazards consideration. The perform a dual roll. The proposed new final determination will serve to decide Date of amendments request: March TS Bases Control Program will define when the hearing is held. 15, 1995, as supplemented on June 29, the appropriate methods and reviews If the final determination is that the 1995. required to implement a TS Bases Description of amendments request: amendment request involves no change which is also consistent with the The proposed amendments would significant hazards consideration, the current NRC guidance. Two other revise the Calvert Cliffs Nuclear Power Commission may issue the amendment proposed changes, not specifically Plant, Units Nos. 1 and 2, Technical and make it immediately effective, covered by the above groupings, include Specifications (TSs) Section 6, notwithstanding the request for a a reduction in reporting requirements ‘‘Administrative Controls,’’ to be hearing. Any hearing held would take and utilizing a more effective option for consistent with the guidance provided place after issuance of the amendment. estimating doses. If the final determination is that the in NUREG-1432, ‘‘Standard Technical Basis for proposed no significant amendment request involves a Specifications, Combustion Engineering hazards consideration determination: significant hazards consideration, any Plants.’’ The proposed changes will As required by 10 CFR 50.91(a), the hearing held would take place before relocate several requirements to other licensee has provided its analysis of the the issuance of any amendment. documents and programs consistent issue of no significant hazards A request for a hearing or a petition with NUREG-1432 and other NRC consideration, which is presented for leave to intervene must be filed with guidance addressing the administrative below: the Secretary of the Commission, U.S. section of the TSs such as the ‘‘Final 1. Would not involve a significant increase Nuclear Regulatory Commission, Policy Statement on Technical in the probability or consequences of an Washington, DC 20555, Attention: Specification Improvements for Nuclear accident previously evaluated. Docketing and Services Branch, or may Power Reactors,’’ published in the Relocating existing requirements to be delivered to the Commission’s Public Federal Register on July 22, 1993 (58 FR Baltimore Gas and Electric Company (BGE)- Document Room, the Gelman Building, 39132). controlled documents, eliminating 2120 L Street, NW., Washington DC, by The Commission indicated that requirements which duplicate regulations, the above date. Where petitions are filed compliance with the Final Policy locating similar requirements within the during the last 10 days of the notice Statement satisfies Section 182a of the same sections and making necessary editorial period, it is requested that the petitioner Act. In particular, the Commission corrections to incorporate the proposed changes provide Technical Specifications promptly so inform the Commission by indicated that certain items could be which are easier to use. Because existing a toll-free telephone call to Western relocated from the TSs to licensee- requirements are relocated to established Union at 1-(800) 248-5100 (in Missouri controlled documents, consistent with BGE programs where changes to those 1-(800) 342-6700). The Western Union the standard enunciated in Portland programs are controlled by regulatory operator should be given Datagram General Electric Co. (Trojan Nuclear requirements, there is no reduction in Identification Number N1023 and the Plant), ALAB-531, 9 NRC 263, 273 commitment and adequate control is still following message addressed to (Project (1979). In that case, the Atomic Safety maintained. Likewise, the elimination of Director): petitioner’s name and and Licensing Appeal Board indicated requirements which duplicate regulations telephone number, date petition was that ‘‘technical specifications are to be enhances the usability of the Technical Specifications without reducing mailed, plant name, and publication reserved for those matters as to which commitments. Locating similar requirements date and page number of this Federal the imposition of rigid conditions or within the same sections and making Register notice. A copy of the petition limitations upon reactor operation is necessary editorial corrections to incorporate should also be sent to the Office of the deemed necessary to obviate the the proposed changes neither add nor delete General Counsel, U.S. Nuclear possibility of an abnormal situation or requirements, but merely clarify and improve Regulatory Commission, Washington, event giving rise to an immediate threat the readability and understanding of the DC 20555, and to the attorney for the to the public health and safety.’’ The Technical Specifications. Since the licensee. policy statement encouraged licensees requirements remain the same, these changes Nontimely filings of petitions for to adopt the applicable improved STSs only affect the method of presentation and leave to intervene, amended petitions, would not affect possible initiating events for and provided some guidance for the accidents previously evaluated or any system supplemental petitions and/or requests conversion from the present plant- functional requirement. Therefore, the for a hearing will not be entertained specific TSs to the improved Standard proposed changes would not involve a absent a determination by the TSs. significant increase in the probability or Commission, the presiding officer or the The proposed changes will provide consequences of an accident previously Atomic Safety and Licensing Board that significant human factors improvement evaluated. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42599 Since the Shift Technical Adviser (STA) is requirement to submit the Startup Report and The NRC staff has reviewed the not considered an initiator to any previously the Special Report dealing with iodine licensee’s analysis and, based on this evaluated accident nor considered in the activity levels, would not create the review, it appears that the three accident’s response, the use of a dual role possibility of a new or different type of standards of 50.92(c) are satisfied. STA would not increase the probability or accident from any accident previously consequences of any previously evaluated evaluated. Therefore, the NRC staff proposes to accident. Since the operation or configuration of the determine that the amendments request The Technical Specification Bases Control plant is not changed by the type of personal involves no significant hazards Program provides controls which ensure dosimeter, this change would not create the consideration. appropriate reviews of changes to the Bases. possibility of a new or different type of Local Public Document Room Because NRC approval is still needed for accident from any accident previously location: Calvert County Library, Prince changes to the Bases which affect the evaluated. Frederick, Maryland 20678. Technical Specifications, the proposed Therefore, the proposed changes would not Attorney for licensee: Jay E. Silbert, Program would not affect the probability or create the possibility of a new or different Esquire, Shaw, Pittman, Potts and type of accident from any accident consequences of a previously evaluated Trowbridge, 2300 N Street, NW., accident. previously evaluated. Eliminating the requirement for submitting 3. Would not involve a significant Washington, DC 20037. two reports which place unwarranted reduction in a margin of safety. NRC Project Director: Ledyard B. administrative burden on both Baltimore Gas Relocating existing requirements to BGE- Marsh and Electric Company and the NRC has no controlled documents, eliminating requirements which duplicate regulations, Commonwealth Edison Company, affect on the probability or consequences of Docket Nos. 50-237 and 50-249, an accident previously evaluated. Therefore, locating similar requirements within the the proposed changes would not involve a same sections and making necessary editorial Dresden Nuclear Power Station, Units 2 significant increase in the probability or corrections to incorporate the proposed and 3, Grundy County, Illinois Docket consequences of an accident previously changes would not affect the Updated Final Nos. 50-254 and 50-265, Quad Cities evaluated. Safety Analysis Report design bases, accident Nuclear Power Station, Units 1 and 2, Replacing the film badge with the analysis assumptions or any margin of safety Rock Island County, Illinois described in the Technical Specification electronic personal dosimeter provides a Date of application for amendment more effective, efficient, state-of-the art Bases. In addition, these proposed changes option for estimating dose and would not do not affect effluent release limits, requests: September 17, 1993, as impact accidents previously evaluated. monitoring equipment or practices. supplemented July 28, 1995 Therefore, these proposed changes would not Therefore, the proposed change would not Description of amendment requests: involve a significant reduction in a margin of involve a significant increase in the As a result of findings by a Diagnostic safety. probability or consequences of an accident Evaluation Team inspection performed The use of an STA should provide an previously evaluated. additional margin of safety in the accident by the NRC staff at the Dresden Nuclear 2. Would not create the possibility of a new response function of licensed operators Power Station in 1987, Commonwealth or different type of accident from any beyond that considered in the accident Edison Company (ComEd, the licensee) accident previously evaluated. analysis. Since the STA is required to have made a decision that both the Dresden As discussed previously, relocating the same training and educational Nuclear Power Station and sister site existing requirements to BGE-controlled qualifications in either the individual or dual Quad Cities Nuclear Power Station documents, eliminating requirements which role, the use of a dual role STA should have duplicate regulations, locating similar needed attention focused on the existing minimal impact. Consequently, the proposed custom Technical Specifications (TS) requirements within the same sections and change would not involve a significant making necessary editorial corrections to reduction in a margin of safety. The used. incorporate the proposed changes will not Technical Specification Bases Control The licensee made the decision to affect any plant system or structure, nor will Program is an administrative change initiate a Technical Specification it affect any system functional or operability controlling how Technical Specification Upgrade Program (TSUP) for both requirements. Consequently, no new failure basis information is reviewed and Dresden and Quad Cities. The licensee modes are introduced as a result of the incorporated. Therefore, this change would evaluated the current TS for both proposed changes. Therefore, these types of not involve a significant reduction in a Dresden and Quad Cities against the changes would not create the possibility of a margin of safety. new or different type of accident from any Standard Technical Specifications (STS) The addition of new programs which contained in NUREG-0123, ‘‘Standard accident previously evaluated. incorporate existing Technical Specification Because the STA does not perform requirements and commitments will have no Technical Specifications General equipment design or equipment effect on the design or operation of the plant Electric Plants BWR/4.’’ The licensee’s manipulation, the use of a dual role STA and would not result in a significant evaluation identified numerous would not create the possibility of a new or reduction in the margin of safety. potential improvements such as different type of accident from any accident Activities described in the Startup Report clarifying requirements, changing TS to previously evaluated. Since the Technical will continue to be performed and corrective make them more understandable and to Specification Bases Control Program action taken when required. Similarly, iodine represents an administrative function eliminate interpretation, and deleting activity levels will continue to be monitored requirements that are no longer performed under existing regulatory controls, and actions taken, including the issuance of it too would not create the possibility of a a Licensee Event Report when conditions considered current with industry new or different type of accident from any warrant. Considering the above, elimination practice. As a result of the evaluation, previously evaluated. of the two reporting requirements would ComEd has elected to upgrade both the The addition of new programs which have no impact on the margin of safety. Dresden and Quad Cities TS to the STS incorporate existing Technical Specification Plant operating parameters are not affected contained in NUREG-0123. requirements and commitments will have no by the type of personnel monitoring device The TSUP for Dresden and Quad effect on the design or operation of the plant used and as a consequence, would not Cities is not a complete adoption of the and would not create the possibility of a new impact a margin of safety. Since the STS. The TSUP focuses on (1) or different type of accident from any replacement dosimeter provides a more integrating additional information such previously evaluated. effective mechanism for estimating dose, A reporting function such as report there is no degradation in personal safety as equipment operability requirements submittals would not change the levels. Consequently, the proposed change during shutdown conditions, (2) configuration or operation of the plant. would not involve a significant reduction in clarifying requirements such as limiting Consequently, the elimination of the a margin of safety. conditions for operation and action 42600 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices statements utilizing STS terminology, availability of all affected systems and the current safety analysis, and some minor (3) deleting superseded requirements therefore, reduce the consequences of any curtailments of the current requirements and modifications to the TS based on accident previously evaluated as the which are based on generic guidance or the licensee’s responses to Generic probability of the systems outlined within previously approved provisions for other Section 3/4.5 of the proposed Technical Letters (GL), and (4) relocating specific stations. Some of the latter individual items Specifications performing their intended may introduce minor reductions in the items to more appropriate TS locations. function is increased by the additional The September 17, 1993, and July 28, margin of safety when compared to the surveillances. current requirements. However, other 1995, applications proposed to upgrade Create the possibility of a new or different individual changes are the adoption of new only Section 3/4.5 (Emergency Core kind of accident from any previously requirements which will provide significant evaluated because: Cooling Systems) of the Dresden and enhancement of the reliability of the Quad Cities TS. In general, the proposed amendment represents the conversion of current equipment assumed to operate in the safety Basis for proposed no significant analysis, or provide enhanced assurance that hazards considerationdetermination: As requirements to a more generic format, the addition of requirements which are based on specified parameters remain with their required by 10 CFR 50.91(a), the the current safety analysis, and some minor acceptance limits. These enhancements licensee has provided its analysis of the curtailments of the current requirements compensate for the individual minor issue of no significant hazards which are based on generic guidance or reductions, such that taken together, the consideration, which is presented previously approved provisions for other proposed changes will not significantly below: stations. These changes do not involve reduce the margin of safety. The proposed changes do not involve a revisions to the design of the station. Some The proposed amendment to Technical significant increase in the probability or of the changes may involve revision in the Specification Section 3/4.5 implements consequences of an accident previously operation of the station; however, these present requirements, or the intent of present evaluated because: provide additional restrictions which are in requirements in accordance with the In general, the proposed amendment accordance with the current safety analysis, guidelines set forth in the STS. Any represents the conversion of current or are to provide for additional testing or deviations from STS requirements do not requirements to a more generic format, or the surveillances which will not introduce new significantly reduce the margin of safety for addition of requirements which are based on failure mechanisms beyond those already Dresden or Quad Cities Stations. The the current safety analysis. Implementation considered in the current safety analyses. proposed changes are intended to improve of these changes will provide increased The proposed amendment for Dresden and readability, usability, and the understanding reliability of equipment assumed to operate Quad Cities Station’s Technical Specification of technical specification requirements while in the current safety analysis, or provide Section 3/4.5 is based on STS guidelines or continued assurance that specified later operating BWR plants’ NRC accepted maintaining acceptable levels of safe parameters remain within their acceptance changes. The proposed amendment has been operation. The proposed changes have been limits, and as such, will not significantly reviewed for acceptability at the Dresden and evaluated and found to be acceptable for use increase the probability or consequences of a Quad Cities Nuclear Power Stations at Dresden or Quad Cities based on system previously evaluated accident. considering similarity of system or design, safety analysis requirements and Some of the proposed changes represent component design versus the STS or later operational performance. Since the proposed minor curtailments of the current operating BWRs. Any deviations from STS changes are based on NRC accepted requirements which are based on generic requirements do not create the possibility of provisions at other operating plants that are guidance or previously approved provisions a new or different kind of accident applicable at Dresden or Quad Cities and for other stations. The proposed amendment previously evaluated for Dresden or Quad maintain necessary levels of system or for Dresden and Quad Cities Station’s Cities Stations. No new modes of operation component reliability, the proposed changes Technical Specification Section 3/4.5 are are introduced by the proposed changes. do not involve a significant reduction in the based on STS guidelines or later operating Surveillance requirements are changed to margin of safety. BWR plants’ NRC accepted changes. Any reflect improvements in technique, frequency The proposed amendment for Dresden and deviations from STS requirements do not of performance or operating experience at Quad Cities Stations will not reduce the significantly increase the probability or later plants. Proposed changes to action availability of systems associated with the consequences of any previously evaluated statements in many places add requirements Emergency Core Cooling Systems when accidents for Dresden or Quad Cities that are not in the present technical required to mitigate accident conditions; Stations. The proposed amendment is specifications. The proposed changes therefore, the proposed changes do not consistent with the current safety analyses maintain at least the present level of involve a significant reduction in the margin and has been previously determined to operability. Therefore, the proposed changes of safety. represent sufficient requirements for the do not create the possibility of a new or assurance and reliability of equipment different kind of accident from any The NRC staff has reviewed the assumed to operate in the safety analysis, or previously evaluated. licensee’s analysis and, based on this provide continued assurance that specified The associated systems that make up the review, it appears that the three parameters remain within their acceptance Emergency Core Cooling Systems are not standards of 10 CFR 50.92(c) are limits. As such, these changes will not assumed in any safety analysis to initiate any satisfied. Therefore, the NRC staff significantly increase the probability or accident sequence for Dresden or Quad Cities proposes to determine that the consequences of a previously evaluated Stations. In addition, the proposed accident. surveillance requirements for affected amendment requests involve no The associated systems that make up the systems associated with the Emergency Core significant hazards consideration. Emergency Core Cooling Systems are not Cooling Systems are generally more Local Public Document Room assumed in any safety analysis to initiate any prescriptive than the current requirements location: for Dresden, Morris Public accident sequence for Dresden or Quad Cities specified within the Technical Library, 604 Liberty Street, Morris, Stations; therefore, the probability of any Specifications; therefore, the proposed Illinois 60450; for Quad Cities, Dixon accident previously evaluated is not changes do not create the possibility of a new increased by the proposed amendment. In or different kind of accident from any Public Library, 221 Hennepin Avenue, addition, the proposed surveillance previously evaluated. Dixon, Illinois 61021 requirements for the proposed amendments Involve a significant reduction in the Attorney for licensee: Michael I. to these systems are generally more margin of safety because: Miller, Esquire; Sidley and Austin, One prescriptive than the current requirements In general, the proposed amendment First National Plaza, Chicago, Illinois specified within the Technical represents the conversion of current Specifications. The additional surveillance requirements to a more generic format, the 60690 requirements improve the reliability and addition of requirements which are based on NRC Project Director: Robert A. Capra Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42601 Duke Power Company, et al., Docket Since the increase in fuel enrichment NRC Project Director: Herbert N. Nos. 50-413 and 50-414, Catawba will allow for extended fuel cycles, it Berkow Nuclear Station, Units 1 and 2, York could be postulated that there may be a Duke Power Company, Docket Nos. 50- County, South Carolina decrease in fuel movement and the 269, 50-270 and 50-287, Oconee probability of an accident may likewise Date of amendment request: June 17, Nuclear Station, Units 1, 2 and 3, be decreased. There is also no increase 1993, as supplemented July 5, 1995 Oconee County, South Carolina Description of amendment request: in the consequences of a fuel drop The initial proposed amendment accident in the Spent Fuel Pool since Date of amendment request: July 26, request dated June 17, 1993, was the fission product inventory of 1995 previously noticed in the Federal individual fuel assemblies will not Description of amendment request: Register on July 21, 1993 (58 FR 39048). change significantly as a result of The proposed amendments would The proposed amendment would revise increased initial enrichment. In provide a one-time extension of the Technical Specification 5.3.1, ‘‘Fuel addition, no change to safety-related allowable outage time from 72 hours to Assemblies’’ to provide flexibility in the systems is being made. 7 days. This extension is necessary to repair of fuel assemblies containing Therefore, the consequences of a fuel implement a modification to the damaged and leaking fuel rods by rupture accident remain unchanged. In degraded grid protection system and the external grid trouble protection system. reconstituting the assemblies in addition, it has been shown that keff is accordance with the guidance in less than or equal to 0.95, under all Basis for proposed no significant Generic Letter (GL) 90-02, Supplement conditions. Therefore, the consequences hazards considerationdetermination: As 1, ‘‘Alternative Requirements For Fuel of a criticality accident in the Spent required by 10 CFR 50.91(a), the Assemblies In The Design Features Fuel Pool remain unchanged as well. licensee has provided its analysis of the Section Of Technical Specifications,’’ 2. The proposed changes do not create the issue of no significant hazards issued on July 31, 1992. The application possibility of a new or different kind of consideration, which is presented is also generally consistent with the accident from any accident previously below: evaluated. format and content of the improved Duke Power Company (Duke) has made Standard Technical Specifications for The proposed changes do not create the determination that this amendment Westinghouse plants provided in the possibility of a new or different kind request involves a No Significant NUREG-1431. of accident since fuel handling Hazards Consideration by applying the Additional information was submitted accidents (fuel drop and misplacement) standards established by NRC on July 5, 1995, that added TS changes are not new or different kinds of regulations in 10 CFR 50.92. This to increase the fuel enrichment limit accidents. Fuel handling accidents are ensures that operation of the facility in from 4.0 to 5.0 weight percent U-235 already discussed in the FSAR for fuel accordance with the proposed that were not previously included the with enrichments up to 4.0 weight % amendment would not:(1) Involve a initial June 17, 1993, amendment and additional analyses have been significant increase in the probability application. This additional information performed for fuel with enrichment up or consequences of an accident is being noticed to provide for public to 5.00 weight %. previously evaluated: comment and opportunity for hearing. 3. Basis for proposed no significant The proposed changes do not involve Each accident analysis addressed within hazards considerationdetermination: As a significant reduction in the margin of the Oconee Final Safety Analysis Report required by 10 CFR 50.91(a), the (FSAR) has been examined with respect to safety. the change proposed within this amendment licensee provided its analysis of the The proposed change does not request. The design basis of the auxiliary issue of no significant hazards involve a significant reduction in the electrical systems is to supply the required consideration (58 FR 39048). The NRC margin of safety since, in all cases, a engineered safeguards (ES) loads of one unit staff’s analysis of the July 5, 1995, spent fuel pool keff less than or equal to and the safe shutdown loads of the other two supplement against the standards of 10 0.95 is being maintained. Criticality units. The systems are arranged so that no CFR 50.92(c) is presented below. analyses have also been performed that single failure will jeopardize plant safety. 1. The proposed changes do not involve a show that the new fuel storage vault The probability of any Design Basis Accident (DBA) is not significantly increased significant increase in the probability or will remain subcritical under a variety consequences of an accident previously by this change. In addition, the consequences evaluated. of moderation conditions, from fully of the accidents are within the bounds of the There is no increase in the probability flooded to optimum moderation. As FSAR analyses. The reliability of the or consequences of an accident in the discussed above, the Spent Fuel Pool emergency power system is not significantly new fuel vault since the only accident will remain sufficiently subcritical affected by a one time extension of allowable that would be affected by this change during any fuel misplacement accident. outage time for the overhead power path. The Based on this analysis, it appears that underground power path is adequate to would be a criticality accident and it assure operability of the Oconee ES loads. has been shown that the worst-case keff the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff Finally, the enhancement of the Degraded under optimum moderation conditions [Grid] Protection System will eliminate a continues to be less than or equal to proposes to determine that the concern which was expressed by the EDSFI 0.98. supplemental amendment submittal audit team. There is no increase in the probability involves no significant hazards (2) Create the possibility of a new or of a fuel drop accident in the Spent Fuel consideration. different kind of accident from any kind of Storage Pool since the mass of an Local Public Document Room accident previously evaluated: assembly will not be significantly location:: York County Library, 138 East Inoperability of the yellow bus is affected by the increase in fuel Black Street, Rock Hill, South Carolina functionally equivalent to inoperability of the 29730 Keowee Main Step-up Transformer in that it enrichment. The likelihood of other renders the overhead emergency power path accidents, previously evaluated and Attorney for licensee: Mr. Albert Carr, inoperable. The Keowee Main Step-up described in Section 9.1.2 of the Final Duke Power Company, 422 South Transformer is allowed to be inoperable for Safety Analysis Report (FSAR), is also Church Street, Charlotte, North Carolina a period not to exceed 28 days. This not affected by the proposed changes. 28242 Technical Specification requirement for the 42602 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Keowee Main Step-up Transformer has been 1. Does the change involve a significant proposed change does not involve a reviewed and approved by the NRC. increase in the probability or consequences significant increase in the probability or Therefore, operation of ONS [Oconee Nuclear of an accident previously evaluated? consequences of an accident previously Station] in accordance with this Technical The proposed amendment would modify evaluated. Specification amendment will not create any the method used to prevent an inadvertent 2. Does the change create the possibility of boron dilution event during hot shutdown, failure modes not bounded by previously a new or different kind of accident from any evaluated accidents. Consequently, this cold shutdown and during refueling. An accident previously evaluated? change will not create the possibility of a uncontrolled boron dilution transient cannot The proposed changes do not create the new or different kind of accident from any occur during this mode of operation. kind of accident previously evaluated. Inadvertent boron dilution is prevented by possibility of a new or different kind of (3) Involve a significant reduction in a administrative controls which isolate the accident. No new systems, structures or margin of safety: primary grade water system isolation valves components are being proposed. Acceptable The design basis of auxiliary electrical from the Chemical and Volume Control alternative administrative controls are being systems is to supply the required ES loads of System, except during planned boron proposed to address inadvertent boron one Unit and safe shutdown loads of the dilution or makeup activities. Thus dilution and the startup of inactive reactor other two units. The underground power unborated water can not be injected into the coolant loops. path is adequate to ensure operability of the reactor coolant system, making an unplanned The primary source of unborated water ES loads during the outage of the yellow bus. boron dilution at these conditions highly will be isolated from injecting by the The reliability of the emergency power improbable, since the source of unborated charging pumps into the reactor coolant water to the charging pumps is isolated. This system is not significantly affected by a one system during hot shutdown, cold shutdown, time extension of allowable outage time for precludes the primary means for an inadvertent boron dilution event in this and refueling, except for planned boron the overhead power path. Therefore, there dilution events and makeup activities. The will be no significant reduction in any mode of operation. proposed administrative controls prevent the margin of safety. The primary grade water system isolation The NRC staff has reviewed the valves may be opened when directed by the possible accident previously evaluated, i.e., an inadvertent boron dilution event. licensee’s analysis and, based on this control room during this mode of operation A currently installed interlock to review, it appears that the three only for a planned boron dilution or makeup activity. The primary grade water system recirculate reactor coolant in an isolated loop standards of 10 CFR 50.92(c) are isolation valves will be verified to be locked, is proposed to be deleted. In its place, each satisfied. Therefore, the NRC staff sealed or otherwise secured in the closed reactor coolant isolated loop will be drained proposes to determine that the position after the planned boron dilution or and refilled with water supplied from the amendment request involves no makeup activity is completed. During RWST just before the loop is returned to significant hazards consideration. planned boron dilution events, operator service. This administrative control will Local Public Document Room attention will be focused on the boron prevent any inadvertent reactivity transient location: Oconee County Library, 501 dilution process and any inappropriate when returning the loop to service. Thus, the blender operation will be readily identified. West South Broad Street, Walhalla, proposed administrative controls will The operator has prompt and definite South Carolina 29691 prevent the type of accident previously Attorney for licensee: J. Michael indication of any boron dilution from the audible count rate instrumentation supplied evaluated. McGarry, III, Winston and Strawn, 1200 by the source range nuclear instrumentation. 3. Does the change involve a significant 17th Street, NW., Washington, DC 20036 High count rate is alarmed in the reactor reduction in a margin of safety? NRC Project Director: Herbert N. containment and the control room. In The proposed changes will continue to Berkow addition a high source range flux level is ensure that adequate protection is provided alarmed in the control room. The count rate against an inadvertent boron dilution and the Duquesne Light Company, et al., Docket increase is proportional to the subcritical adverse effects from the startup of an isolated Nos. 50-334 and 50-412 Beaver Valley multiplication factor. reactor coolant loop. General Design Criteria Power Station, Unit Nos. 1 and 2, The proposed amendment would also 10 requirements will not be exceeded with Shippingport, Pennsylvania modify the method used to prevent an respect to demonstrating specified acceptable Date of amendment request: July 10, adverse reactor transient during startup of an fuel design limits. The required indications isolated reactor coolant loop. Procedures 1995 and functions are still maintained in require that the isolated loop water boron accordance with current technical Description of amendment request: concentration be verified prior to opening specification requirements and the shutdown The proposed amendment would loop isolation valves. Procedures also require modify the technical specifications to an isolated loop to be drained and refilled margin is unaffected. Therefore, the proposed minimize the potential for boron from water supplied from the Refueling change will not involve a significant deletion of the reactor coolant system Water Storage Tank (RWST) or Reactor reduction in the margin of safety. (RCS) during startup of an isolated loop. Coolant System (RCS) prior to opening either The NRC staff has reviewed the The changes would permit RCS loop the hot or cold leg isolation valves. Using licensee’s analysis and, based on this isolation only during Modes 5 and 6. water from the RWST or RCS ensures 1) that review, it appears that the three RCS loop isolation valves would be the boron concentration of the isolated loop standards of 10 CFR 50.92(c) are is sufficient to prevent a dilution of the active required open with power removed reactor coolant loops and reducing the satisfied. Therefore, the NRC staff from each isolation valve operator shutdown margin to below those values used proposes to determine that the during Modes 1, 2, 3, and 4. Primary in safety analyses when the isolated loop is amendment request involves no grade water would be isolated from the returned to service, and 2) that no single significant hazards consideration. RCS during Modes 4, 5, and 6, except failure could cause an isolated loop to be Local Public Document Room during planned boron dilution or filled with unborated water. location: B. Library, 663 Franklin makeup activities. Thus procedures and interlocks prevent inadvertent opening of loop isolation valves Avenue, Aliquippa, Pennsylvania Basis for proposed no significant 15001. hazards considerationdetermination: As and require that the startup of an isolated loop be performed in a controlled manner Attorney for licensee: Jay E. Silberg, required by 10 CFR 50.91(a), the that virtually eliminates any sudden positive licensee has provided its analysis of the Esquire, Shaw, Pittman, Potts & reactivity addition from boron dilution. Thus Trowbridge, 2300 N Street, NW., issue of no significant hazards the core cannot be adversely affected by the consideration, which is presented startup of an isolated loop and fuel design Washington, DC 20037. below: limits are not exceeded. Therefore, the NRC Project Director: John F. Stolz Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42603 Duquesne Light Company, et al., Docket accordance with the proposed amendment generator test frequency and permitting No. 50-334, Beaver Valley Power would not involve a significant reduction in additional test evolutions are intended to Station, Unit 1, Shippingport, a margin of safety. minimize diesel wear and mechanical stress. Pennsylvania The NRC staff has reviewed the By eliminating excessive testing, which can licensee’s analysis and, based on this lead to premature diesel failures and Date of amendment request: July 11, review, it appears that the three minimizing diesel wear and mechanical 1995 standards of 10 CFR 50.92(c) are stress, the diesel generator reliability is Description of amendment request: satisfied. Therefore, the NRC staff increased. The consequences of an accident previously evaluated is also not increased The proposed amendment would revise proposes to determine that the the required area of the Reactor Coolant because the addition of the parameters for amendment request involves no generator voltage, frequency, and diesel System (RCS) overpressure protection significant hazards consideration. system vent from 3.14 square inches to starting time to the surveillance requirement Local Public Document Room will provide additional assurance that the 2.07 square inches. This vent is location: B. F. Jones Memorial Library, diesel generators are performing as assumed provided to relieve a potential RCS 663 Franklin Avenue, Aliquippa, in the safety analysis. This proposed change overpressure condition if the power- Pennsylvania 15001. does not affect the availability or reliability operated relief valves (PORVs) are not Attorney for licensee: Jay E. Silberg, of the offsite circuits. operable. The proposed vent area is Esquire, Shaw, Pittman, Potts & Therefore, this change will not increase the equal to the relief area of a PORV. A Trowbridge, 2300 N Street, NW., probability or consequences of an accident single PORV is capable of providing previously evaluated due to the continued Washington, DC 20037. availability and reliability of the A.C. sufficient relief capacity to mitigate NRC Project Director: John F. Stolz potential low temperature electrical power sources. Duquesne Light Company, et al., Docket 2. Does the change create the possibility of overpressurization events. a new or different kind of accident from any Basis for proposed no significant Nos. 50-334 and 50-412, Beaver Valley Power Station, Unit Nos. 1 and 2, accident previously evaluated? hazards considerationdetermination: As The proposed changes do not alter the required by 10 CFR 50.91(a), the Shippingport, Pennsylvania method of operating the plant. The changes licensee has provided its analysis of the Date of amendment request: July 20, do not introduce any new failure modes and issue of no significant hazards 1995 are intended to increase the diesel generator consideration, which is presented Description of amendment request: reliability and provide additional assurance below: The proposed amendment would revise that the diesels are performing as assumed in 1. Does the change involve a significant Technical Specification (TS) 3/4.8.1.1 to the safety analysis. The revision to the increase in the probability or consequences various action statements and surveillance incorporate guidance provided in NRC requirements provide assurance that the of an accident previously evaluated? Generic Letter (GL) 84-15, ‘‘Proposed The proposed change is considered to be diesel generators will be able to power their editorial since it replaces the 3.14 square Staff Actions to Improve and Maintain respective safety systems if required. The inch vent size stated in overpressure Diesel Generator Reliability,’’ and GL proposed changes do not impact the protection system (OPPS) Specifications 93-05, ‘‘Line-Item Technical performance of any safety system. 3.4.9.3, 3.1.2.1.b, and 3.1.2.3 and Bases 3/ Specification Improvements To Reduce Therefore, this proposed change does not 4.1.2 and 3/4.4.9 with a 2.07 square inch vent Surveillance Requirements For Testing create the possibility of a new or different size. This ensures the vent size stated in the During Power Operation,’’ which kind of accident from any accident technical specifications is consistent with the includes (1) revised requirements for previously evaluated. 3. Does the change involve a significant actual size of an installed PORV. These testing the operable emergency diesel changes maintain consistency with the reduction in a margin of safety? analyses assumptions and the operation of generators (EDGs) for various The margin of safety is not reduced the OPPS in accordance with applicable combinations of inoperable offsite because the A.C. electrical power sources analyses and the UFSAR [Updated Final circuits and EDGs and (2) revised will continue to provide sufficient capacity, Safety Analyses Report]. Therefore, we have surveillance requirements for the EDGs. capability, redundancy, and reliability to concluded that these changes do not involve The revised surveillance requirements ensure availability of necessary power to a significant increase in the probability or include specifying generator voltage, engineered safety feature (ESF) systems. The consequences of an accident previously frequency limits, and diesel starting ESF systems will continue to function, as evaluated in the UFSAR. time. In addition, several editorial assumed in the safety analyses, to ensure that 2. Does the change create the possibility of the fuel, reactor coolant system and a new or different kind of accident from any changes would be made to TS 3/4.8.1.1 containment design limits are not exceeded. accident previously evaluated? which would be consistent with the The elimination of excessive testing on the The proposed changes do not involve any guidance provided in the NRC’s diesel generators are permitting additional physical changes to the OPPS or their Improved Standard Technical test evolutions, which result in less diesel setpoints. These changes do not change any Specifications (NUREG-1431). wear and mechanical stress, are intended to function previously provided by the OPPS. Basis for proposed no significant increase diesel reliability. The increased These changes do not affect any failure hazards considerationdetermination: As reliability of the diesels adds to the ability of modes defined for any plant system or required by 10 CFR 50.91(a), the the A.C. electrical power source to provide component important to safety nor has any licensee has provided its analysis of the power to ESF systems. The proposed new limiting single failure been identified as additions to the surveillance requirements a result of these changes. Therefore, these issue of no significant hazards will provide additional assurance of the changes will not create the possibility of a consideration, which is presented ability of the A.C. electrical power sources to new or different kind of accident from any below: provide power to ESF systems. accident previously evaluated in the UFSAR. 1. Does the change involve a significant Therefore, this proposed change does not 3. Does the change involve a significant increase in the probability or consequences involve a significant reduction in a margin of reduction in a margin of safety? of an accident previously evaluated? safety. The proposed changes will not affect the The probability of occurrence of a The NRC staff has reviewed the previously evaluated accident is not operation of or the reliability of the OPPS. licensee’s analysis and, based on this These changes do not affect the manner in increased because the allowable outage times which the plant is operated or involve a for the offsite circuits and diesel generators review, it appears that the three change to equipment or features that affect remain unchanged. The consequences of an standards of 10 CFR 50.92(c) are the operational characteristics of the plant. accident previously evaluated is not satisfied. Therefore, the NRC staff Therefore, operation of the plant in increased because reducing the diesel proposes to determine that the 42604 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices amendment request involves no statement to close the block valve to isolate mitigate the effects of a SGTR accident. This significant hazards consideration. a PORV and maintain power to the block is consistent with the intent of the ISTS and Local Public Document Room valve does not significantly increase the does not affect the UFSAR, therefore, Location: B. F. Jones Memorial Library, probability of a small break loss of coolant operation of the plant in accordance with the accident. No PORV function has been deleted 663 Franklin Avenue, Aliquippa, proposed amendment would not involve a and the PORV and block valve continue to significant reduction in a margin of safety. Pennsylvania 15001. be capable of being manually closed at any The NRC staff has reviewed the Attorney for licensee: Jay E. Silberg, time. As a result of the change to action ‘‘a,’’ licensee’s analysis and, based on this Esquire, Shaw, Pittman, Potts & an exception to the stroking requirements is review, it appears that the three Trowbridge, 2300 N Street, NW., no longer required, therefore, reference to standards of 10 CFR 50.92(c) are Washington, DC 20037. action ‘‘a’’ in Surveillance Requirement satisfied. Therefore, the NRC staff NRC Project Director: John F. Stolz 4.4.11.2 has been deleted. Closing the block valve for a PORV that is not capable of being proposes to determine that the Duquesne Light Company, et al., Docket manually cycled and removing power to the amendment request involves no No. 50-412, Beaver Valley block valve assures that the valve will not be significant hazards consideration. PowerStation, Unit 2, Shippingport, inadvertently opened when the condition of Local Public Document Room Pennsylvania the PORV is uncertain. Location: B. F. Jones Memorial Library, The changes remain consistent with the Date of amendment request: July 24, 663 Franklin Avenue, Aliquippa, analysis assumptions regarding the operation Pennsylvania 1500l. 1995 of the PORVs and block valves and provides Description of amendment request: increased assurance of their availability in Attorney for licensee: Jay E. Silberg, The proposed amendment would revise mitigating the consequences of a steam Esquire, Shaw, Pittman, Potts & Technical Specification (TS) 3/4.4.11, generator tube rupture (SGTR) accident. The Trowbridge, 2300 N Street, NW., ‘‘Relief Valves,’’ and associated Bases to requirements of GL 90-06 are substantially Washington, DC 20037. make Unit 2 TS 3/4.4.11 consistent with addressed in the ISTS which have been NRC Project Director: John F. Stolz Unit 1 TS 3/4.4.11, which was revised incorporated here except for specific design differences. Minor editorial changes Entergy Operations, Inc., Docket No. by Unit 1 License Amendment No. 187 involving capitalization have been 50-368, Arkansas Nuclear One, Unit issued on May 15, 1995. The proposed incorporated to maintain the format and No. 2, Pope County, Arkansas amendment would also generally reflect content and do not affect any of the Date of amendment request: April 4, the guidance provided in NRC Generic requirements, the accident analyses, or the 1995 Letter 90-06 and in the NRC’s Improved operation of the plant. Therefore, we have Description of amendment request: Standard Technical Specifications concluded that these changes do not involve The proposed amendment revises the (NUREG-1431). a significant increase in the probability or minimum water level that is required to Basis for proposed no significant consequences of an accident previously be maintained over irradiated fuel hazards considerationdetermination: As evaluated in the UFSAR [Updated Final Safety Analysis Report]. assemblies during latching and required by 10 CFR 50.91(a), the 2. Does the change create the possibility of unlatching of control element licensee has provided its analysis of the a new or different kind of accident from any assemblies. issue of no significant hazards accident previously evaluated? Basis for proposed no significant consideration, which is presented The proposed changes to the action hazards considerationdetermination: As below: statements for the PORVs and the associated 1. Does the change involve a significant block valves will improve the availability of required by 10 CFR 50.91(a), the increase in the probability or consequences these valves for normal operation and for licensee has provided its analysis of the of an accident previously evaluated? mitigation of a SGTR accident. The proposed issue of no significant hazards Implementation of these changes will changes do not involve any physical changes consideration, which is presented increase the availability of the power- to the PORVs or their setpoints. These below: operated relief valves (PORVs) and their changes do not delete any design basis Criterion 1 - Does Not Involve a Significant associated block valves. The increased accident function previously provided by the Increase in the Probability or Consequences availability is obtained through maintaining PORV vent path nor has the probability of of an Accident Previously Evaluated. power to the block valves which are closed inadvertent opening been increased. The fuel handling accident analysis to control PORV seat leakage. Maintaining Accordingly, no new limiting single failure assumes that a fuel assembly is dropped power to the block valve provides the has been identified as a result of these during fuel handling. During the latching and flexibility of reopening the valves to control changes. Therefore, these changes will not unlatching of the CEAs, the upper guide reactor coolant system pressure. The create the possibility of a new or different structure is in place and the CEDM extension proposed change modifies Specification kind of accident from any accident shaft assemblies are disconnected from their 3.4.11 actions, a surveillance requirement, previously evaluated in the UFSAR. CEA for subsequent removal with the vessel and Bases to generally reflect the 3. Does the change involve a significant upper guide structure. The dropping of a requirements of Generic Letter (GL) 90-06, reduction in a margin of safety? CEA from the maximum height of six inches and the guidance provided in NUREG-1431, The proposed changes have been will not damage that particular fuel assembly ‘‘Improved Standard Technical incorporated to provide the capability to or any surrounding fuel assemblies since this Specifications’’ (ISTS) and is consistent with manually stroke the vent path using the block movement is confined to within the upper the changes the NRC approved for Unit No. valve to control the pressure surge as a PORV guide structure and the guide tubes of the 1. A revised stress analysis has been opens. The resultant downstream piping associated fuel assembly during this activity. completed that takes credit for the speed at forces were found acceptable, therefore, This less than six inches of movement does which the block valve opens when manually power can be maintained to the block valve not have the potential to result in a fuel reducing reactor coolant system pressure. when the block valve has been closed to handling accident; therefore, an increase in The block valve relatively slow opening isolate a PORV because of excessive seat the probability of this accident does not speed reduces the peak pressure surge and leakage. This will allow operation of the occur. The requirement to have at least 23 results in acceptable downstream piping PORVs in a manner similar to the guidance feet of water over the top of the irradiated stress values. The PORV downstream piping provided in GL 90-06 to improve PORV fuel assemblies during fuel and CEA has been evaluated assuming manual vent availability. These changes will improve the movement ensures that, should a fuel path operation with cold loop seal slug flow operator use of an isolated PORV since it is handling accident occur, the resulting offsite and it has been determined that the piping now analyzed to be manually cycled with the dose consequences are mitigated. The six supports can accept these design transient block valve closed and power maintained so inch movement of the CEA during CEA loads. The proposed change to the action the operator can use the PORV if required to decoupling does not constitute fuel or CEA Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42605 movement which would result in a fuel license NPF-29 (November 1, 1984 to review, it appears that the three handling accident. As such, Technical November 1, 2024). standards of 10 CFR 50.92(c) are Specifications are unchanged with respect to Basis for proposed no significant satisfied. Therefore, the NRC staff the mitigating requirements for a fuel hazards considerationdetermination: As proposes to determine that the handling accident. required by 10 CFR 50.91(a), the Therefore, this change does not involve a amendment request involves no significant increase in the probability or licensee has provided its analysis of the significant hazards consideration. consequences of any accident previously issue of no significant hazards Local Public Document Room evaluated. consideration, which is presented Location: Judge George W. Armstrong Criterion 2 - Does Not Create the Possibility below: Library, 220 S. Commerce Street, of a New or Different Kind of Accident from a. No significant increase in the probability Natchez, Mississippi 39120 any Previously Evaluated. or consequences of an accident previously Attorney for licensee: Nicholas S. The proposed change does not change the evaluated results from this change. Reynolds, Esquire, Winston and Strawn, design, configuration, or method of operation The proposed change does not affect the 1400 L Street, N.W., 12th Floor, of the plant; therefore, it does not create the design or operation of any plant system. The Washington, DC 20005-3502 possibility of a new or different kind of effect of 40 years of full power operations has previously been evaluated and documented NRC Project Director: William D. accident. Because no new equipment is being Beckner introduced, and no equipment is being in the Updated Final Safety Analysis Report operated in a manner inconsistent with its (UFSAR). The design life of structures, Philadelphia Electric Company, Docket design, the possibility of equipment systems and components is controlled by Nos. 50-352 and 50-353, Limerick malfunction is not increased. The proposed existing plant problems [sic., programs] and processes that are not affected by this change. Generating Station, Units 1 and 2, change adds an exception to the applicability Montgomery County, Pennsylvania section and is bounded by the existing fuel The proposed change will simply allow handling accident analysis. Grand Gulf to achieve its original planned 40 Date of amendment request: June 20, Therefore, this change does not create the years of service. Equipment associated with 1995 possibility of a new or different kind of initiating event frequencies or accident Description of amendment request: accident from any previously evaluated. mitigation must continue to meet all The proposed Technical Specifications Criterion 3 - Does Not Involve a Significant applicable maintenance and operability requirements regardless of license duration (TS) changes would remove the Reduction in the Margin of Safety. surveillance interval text for the 10 CFR There is no reduction in margin of safety (It is also interesting to note that the license in that 23 feet of water is still maintained duration limitation of 40 years, as contained Part 50, Appendix J, Type A test over the irradiated fuel assemblies anytime in 10 CFR 50.51 is not a limitation resulting (Integrated Leak Rate Test or ILRT), and there is a potential for a fuel handling from concerns over plant aging effects. ‘‘In Drywell-to-Suppression Chamber accident. Adding the exception of the fact, the limit was a compromise between the (bypass) leakage test specified in TS latching and unlatching of the CEAs to the efforts of the Justice Department and electric Surveillance Requirements (SR) applicability section does not involve a cooperatives, who championed a 20-year 4.6.1.2.a, 4.6.1.2.b, and 4.6.2.1.e. change in the accident analysis for fuel limit on the basis of antitrust concerns, and Basis for proposed no significant the view of the utility industries that a longer handling which remains bounding. hazards considerationdetermination: As Therefore, this change does not involve a period was necessary to ensure full amortization of a nuclear power plant.’’ (56 required by 10 CFR 50.91(a), the significant reduction in the margin of safety. licensee has provided its analysis of the The NRC staff has reviewed the FR 64961, December 13, 1991)). Therefore, the probability or consequences of previously issue of no significant hazards licensee’s analysis and, based on this analyzed accidents are not significantly consideration, which is presented review, it appears that the three increased. below: standards of 10 CFR 50.92(c) are b. The change would not create the 1. The proposed TS changes do not involve satisfied. Therefore, the NRC staff possibility of a new or different kind of a significant increase in the probability or proposes to determine that the accident from any previously analyzed. consequences of an accident previously amendment request involves no The proposed change will not add any evaluated. significant hazards consideration. plant equipment or introduce any new modes The primary containment and the Local Public Document Room of plant operation. The change will only suppression chamber are not considered to amend the operating license to allow 40 years Location: Tomlinson Library, Arkansas be accident initiators, they are accident of full power operations. The proposed mitigators. There are no physical or Tech University, Russellville, AR 72801 change does not affect the current operational changes to the containment or Attorney for licensee: Nicholas S. maintenance or surveillance practices, which suppression structure, system or components Reynolds, Esquire, Winston and Strawn, are designed to maintain and monitor the being made as a result of the proposed 1400 L Street, N.W., Washington, D.C. current service life of plant structures, changes. These changes will not impose 20005-3502 systems and components in accordance with different requirements and adequate control NRC Project Director: William D. regulatory requirements. Therefore, the of information will be maintained. These TS Beckner proposed change does not create the changes will not alter assumptions made in possibility of new equipment failure modes the safety analysis and licensing basis. Entergy Operations, Inc., et al., Docket or a new or different kind of accident from Therefore, the proposed TS changes to No. 50-416, Grand Gulf Nuclear any accident previously evaluated. eliminate the details of the test intervals will Station, Unit 1, Claiborne County, c. The change would not involve a not increase the probability or consequences Mississippi significant reduction in a margin of safety. of an accident previously evaluated. The proposed change does not involve a 2. The proposed TS changes do not create Date of amendment request: July 21, significant reduction in a margin of safety the possibility of a new or different kind of 1995 since it only provides for 40 years of full accident from any accident previously Description of amendment request: power operations for which the plant is evaluated. The proposed change requests that the designed. Current Technical Specification The proposed changes remove the specific surveillance requirements (e.g. associated current expiration date for license NPF- surveillance test interval text from TS and with 10 CFR 50 Appendix H) and other address the interval by direct reference to the 29 be changed to reflect the issuance regulatory requirements remain in place and applicable regulation. The proposed TS date of the new license granted Grand will ensure continued compliance with changes do not make any physical or Gulf on November 1, 1984. The change applicable safety margins. operational changes to existing plant systems consists of extending the expiration date The NRC staff has reviewed the or components. Furthermore, the primary to 40 years from the date of issuance of licensee’s analysis and, based on this containment and suppression chamber act as 42606 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices accident mitigators not initiators. Therefore, change would not affect the reporting Specifications (TS) would change TS the possibility of a new or different kind of relationship, authority, or responsibility Table 3.3.1-2, ‘‘Reactor Protection accident than from any accident previously of the position. System Response Times’’, TS Table evaluated is not introduced. Basis for proposed no significant 3.3.2-3, ‘‘Isolation System 3. The proposed TS changes do not involve hazards considerationdetermination: As a significant reduction in a margin of safety. Instrumentation Response Time’’, TS LGS [Limerick Generating Station] TS required by 10 CFR 50.91(a), the Table 3.3.3-3, ‘‘Emergency Core Cooling Bases 3/4 6.1.2 state that surveillance testing licensee has provided its analysis of the System Response Times’’, and is consistent with 10 CFR 50, Appendix J and issue of no significant hazards associated Bases. The proposed changes does not specify a SR test interval. TS Bases consideration, which is presented to the above-referenced TS Tables 3/4 6.2, describing the bypass test does not below: would eliminate the requirement to specify a SR test interval. However, the NRC Operation of the Indian Point 3 Nuclear perform response time testing for certain Safety Evaluation related to amendment Nos. Power Plant in accordance with the proposed classes of equipment. 68 (Unit 1) and 31 (Unit 2) concluded that amendment would not involve a significant Basis for proposed no significant hazards consideration as defined in 10 CFR it is acceptable for the drywell-to- hazards considerationdetermination: As suppression chamber test frequency to 50.92, since it would not: coincide with the 10 CFR 50, Appendix J, 1. Involve a significant increase in the required by 10 CFR 50.91(a), the Type A test, since individual vacuum breaker probability or consequences of an accident licensee has provided its analysis of the leakage tests are an acceptable alternative to previously evaluated. issue of no significant hazards an integrated suppression pool bypass test The proposed changes are administrative consideration, which is presented during outages for which a Type A in nature and do not involve plant equipment below: containment integrated leak rate test is not or operating parameters. There is no change 1. Will not involve a significant increase in conducted. The alternative bypass test to any accident analysis assumptions or other the probability or consequences of an requirement, TS SR 4.6.2.1.f, is not affected conditions which could affect previously accident previously evaluated. by these changes. evaluated accidents. The proposed changes The purpose of the proposed Technical The Type A test, and bypass SR test will not decrease the organization’s ability to Specification change is to eliminate response intervals are adequately presented in the test respond to a design basis accident. time testing requirements for selected implementing procedures, and TS will 2. Create the possibility of a new or instrumentation in the Reactor Protection directly reference 10 CFR 50, Appendix J, for different kind of accident from those System, Isolation System, and Emergency the appropriate test interval. previously evaluated. Core Cooling System. However, because of Therefore, the proposed TS changes do not Since the proposed changes are the continued application of other existing involve a significant reduction in a margin of administrative in nature and do not involve Technical Specification requirements such as safety. hardware design, modifications or operation, channel calibrations, channel checks, The NRC staff has reviewed the the possibility of new or different accidents channel functional tests, and logic system licensee’s analysis and, based on this is not created. functional tests, the response time of these 3. Involve a significant reduction in the review, it appears that the three systems will be maintained within the margin of safety. acceptance limits assumed in plant safety standards of 10 CFR 50.92(c) are The proposed title change for the Resident analyses and required for successful satisfied. Therefore, the NRC staff Manager is an administrative change and mitigation of an initiating event. The proposes to determine that the does not affect the responsibilities, authority, proposed Technical Specification changes do amendment request involves no or reporting relationships for this not affect the capability of the associated significant hazards consideration. management position. Replacing the title systems to perform their intended function Local Public Document Room specific list of PORC members with a within their required response time. Location: Pottstown Public Library, 500 statement of membership requirements for The BWR Owners’ Group has completed an High Street, Pottstown, Pennsylvania the committee does not reduce the evaluation (NEDO-32291, ‘‘System Analyses effectiveness of the committee to advise the for the Elimination of Selected Response 19464. Resident Manager (Site Executive Officer) on Attorney for licensee: J. W. Durham, Time Testing Requirements’’) which matters regarding nuclear safety. demonstrates that response time testing is Sr., Esquire, Sr. V. P. and General The NRC staff has reviewed the redundant to the other Technical Counsel, Philadelphia Electric licensee’s analysis and, based on this Specification requirements listed in the Company, 2301 Market Street, review, it appears that the three preceding paragraph. These other tests are Philadelphia, Pennsylvania 19101 standards of 50.92(c) are satisfied. sufficient to identify failure modes or NRC Project Director: John F. Stolz Therefore, the NRC staff proposes to degradation in instruments response time and ensure operation of the associated Power Authority of The State of New determine that the amendment request involves no significant hazards systems within acceptance limits. There are York, Docket No. 50-286, Indian no known failure modes that can be detected PointNuclear Generating Unit No. 3, consideration. by response time testing that cannot be Westchester County, New York Local Public Document Room detected by the other Technical Specification Location: White Plains Public Library, tests. Hope Creek Generating Station is Date of amendment request: July 21, 100 Martine Avenue, White Plains, New 1995 specifically bounded by the assumptions and York 10601. justifications in General Electric Company Description of amendment request: Attorney for licensee: Mr. Charles M. Licensing Topical Report, NEDO-32291, The proposed amendment would Pratt, 10 Columbus Circle, New York, ‘‘System Analyses for Elimination of Selected change Technical Specifications Section New York 10019. Response Time Testing Requirements.’’ 6.0 (Administrative Controls) to replace NRC Project Director: Ledyard B. 2. Will not create the possibility of a new the title-specific list of members on the Marsh or different kind of accident from any Plant Operating Review Committee accident previously evaluated. (PORC) with a more general statement of Public Service Electric & Gas Company, As discussed above, the proposed membership requirements. The scope of Docket No. 50-354, Hope Creek Technical Specification changes do not affect disciplines represented on the PORC Generating Station, Salem County, New the capability of the associated systems to Jersey perform their intended function within the would also be expanded to include acceptance limits assumed in plant safety nuclear licensing and quality assurance. Date of amendment request: March analyses and required for successful The proposed amendment would also 30, 1995 mitigation of an initiating event. The change the title ‘‘Resident Manager’’ to Description of amendment request: proposed elimination of response time ‘‘Site Executive Officer.’’ This title The proposed change to the Technical testing would not result in any new Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42607 equipment, operating modes, or plant The proposed change involves no 1. Will not involve a significant increase in configurations. hardware changes, no changes to the the probability or consequences of an 3. Will not involve a significant reduction operation of any systems or components, and accident previously evaluated. in a margin of safety. no changes to existing structures. Increasing The proposed change involves no The current Technical Specification the interval between channel functional tests hardware changes and no changes to existing response times are based on the maximum for the radiation monitoring instrumentation structures. Increasing the annual operational allowable values assumed in the plant safety represent changes that do not affect plant limit of the drywell and suppression chamber analyses. These analyses conservatively safety and do not alter existing accident purge system will not increase the establish the margin of safety. As described analyses. probability of a loss-of-coolant accident. above, the proposed Technical Specification 2. Will not create the possibility of a new While increased usage of the purge system changes do not affect the capability of the or different kind of accident from any will result in a slight increase in the associated systems to perform their intended previously evaluated. possibility that these valves will be open functions within the allowed response time The proposed change is procedural in during a LOCA, it will not alter or impact used as the basis for the plant safety analyses. nature concerning the channel functional test previous LOCA analyses. Plant and system response to an initiating frequency for the radiation monitoring 2. Will not create the possibility of a new event will remain in compliance within the instrumentation not already on a quarterly or different kind of accident from any assumptions of the safety analyses, and surveillance. The channel functional test previously evaluated. therefore the margin of safety is not affected. methodology for these instruments remains The proposed change will not result in an Although not explicitly evaluated, the unchanged. The proposed changes, while unanalyzed condition. While the increase in proposed Technical Specification changes slightly increasing the possibility of an purge system operation will slightly increase will provide an improvement to plant safety undetected instrument error, will not create the possibility of the containment vent and and operation by: a new or unevaluated accident or operating purge valves being open at the onset of a a) Reducing the time safety systems are condition. LOCA event, the valves have been unavailable 3. Will not involve a significant reduction established as capable of isolating the b) Reducing safety system actuations in a margin of safety. c) Reducing shutdown risk containment within five seconds. This is well d) Limiting radiation exposure to plant The proposed change is in accordance with within the bounds of existing LOCA analyses personnel recommendations provided by the NRC which assume an open duration of 175 e) Eliminating the diversion of key regarding the improvement of Technical seconds. Therefore, this change will not personnel to conduct unnecessary testing. Specifications. These changes will result in require a new or different accident analysis. The NRC staff has reviewed the perpetuation of current safety margins while 3. Will not involve a significant reduction licensee’s analysis and, based on this reducing regulatory burden and decreasing in a margin of safety. equipment degradation. The proposed change will not alter existing review, it appears that the three The NRC staff has reviewed the systems, equipment, components, or standards of 10 CFR 50.92(c) are structures. The method of operating the satisfied. Therefore, the NRC staff licensee’s analysis and, based on this review, it appears that the three drywell and suppression chamber purge proposes to determine that the system will not be altered by the increased amendment request involves no standards of 10 CFR 50.92(c) are annual usage. While there is a slight increase significant hazards consideration. satisfied. Therefore, the NRC staff in the possibility of purge operations at the Local Public Document Room proposes to determine that the onset of a LOCA, any resulting release would Location: Pennsville Public Library, 190 amendment request involves no be insignificant and bounded by existing S. Broadway, Pennsville, New Jersey significant hazards consideration. LOCA analyses. Operation of the drywell and 08070 Local Public Document Room suppression chamber purge system based on Attorney for licensee: M. J. Location: Pennsville Public Library, 190 these proposed changes will remain within Wetterhahn, Esquire, Winston and S. Broadway, Pennsville, New Jersey the guidance provided in the NRC’s Branch 08070 Technical Position CSB 6-4. Strawn, 1400 L Street, NW., The NRC staff has reviewed the Washington, DC 20005-3502 Attorney for licensee: M. J. licensee’s analysis and, based on this NRC Project Director: John F. Stolz Wetterhahn, Esquire, Winston and review, it appears that the three Public Service Electric & Gas Company, Strawn, 1400 L Street, NW., standards of 10 CFR 50.92(c) are Docket No. 50-354, Hope Creek Washington, DC 20005-3502 satisfied. Therefore, the NRC staff Generating Station, Salem County, New NRC Project Director: John F. Stolz proposes to determine that the Jersey Public Service Electric & Gas Company, amendment request involves no Date of amendment request: April 18, Docket No. 50-354, Hope Creek significant hazards consideration. 1995 Generating Station, Salem County, New Local Public Document Room Description of amendment request: Jersey Location: Pennsville Public Library, 190 The proposed changes to the Technical S. Broadway, Pennsville, New Jersey Date of amendment request: May 4, 08070 Specifications (TS) would change TS 1995 Table 4.3.7.1-1 ‘‘Radiation Monitoring Attorney for licensee: M. J. Description of amendment request: Instrumentation Surveillance Wetterhahn, Esquire, Winston and The proposed change to the Technical Requirements.’’ This change would Strawn, 1400 L Street, NW., Specifications (TS) would change TS 3/ increase the channel functional test Washington, DC 20005-3502 4.6.1.8, ‘‘Drywell and Suppression interval from monthly to quarterly for NRC Project Director: John F. Stolz Chamber Purge System’’, to increase the each instrument. annual operational limit for the drywell Saxton Nuclear Experimental Basis for proposed no significant Corporation (SNEC), Docket No. 50-146, hazards considerationdetermination: As and suppression chamber purge system from 120 to 500 hours. Saxton Nuclear Experimental Facility required by 10 CFR 50.91(a), the (SNEF), Bedford County, Pennsylvania licensee has provided its analysis of the Basis for proposed no significant issue of no significant hazards hazards considerationdetermination: As Date of amendment request: June 2, consideration, which is presented required by 10 CFR 50.91(a), the 1995, as supplemented on June 23, below: licensee has provided its analysis of the 1995. 1. Will not involve a significant increase in issue of no significant hazards Description of amendment request: the probability or consequences of an consideration, which is presented The proposed changes to the technical accident previously evaluated. below: specifications are administrative in 42608 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices nature. The proposed amendment (PORVs) to follow the guidance of already been considered. The worst case would revise the organization structure Generic Letter (GL) 90-06, Generic Issue failure, either not opening or not closing, has associated with the SNEF to allow 70, and the improved Westinghouse been evaluated and is bounded by other more General Public Utilities Nuclear Standardized Technical Specifications limiting accidents. 3. The margin of safety has not been Corporation resources to be applied to (NUREG-1431, Rev. 1). significantly reduced. SNEC activities within their normal Basis for proposed no significant The currently approved TS permits all organizational structure; eliminating the hazards considerationdetermination: As three PORVs and/or their block valves to be need to identify and compartmentalize required by 10 CFR 50.91(a), the inoperable as long as precautions are taken a portion of the organization as specific licensee has provided its analysis of the to assure that RCS would not leak-by, to SNEC. The proposed amendment issue of no significant hazards assuming single failures and spurious would also revise the description and consideration, which is presented operation. The proposed TSCR would require drawing of the SNEF site to reflect below: a minimum of two PORVs and block valves multiple gates in the SNEF fence. 1. The probability or consequences of an to be operable, or at least capable of being Basis for proposed no significant accident previously evaluated is not manually cycled, in Modes 1, 2, and 3. This significantly increased. is in fact an increase in margin and provides hazards considerationDetermination: As for greater reliability with the added benefit required by 10 CFR 50.91(a), the There is no increase in the probability of an accident because the physical that the probability of challenges to the licensee has provided its analysis of the characteristics of the PORVs and their block pressurizer code safety valves will be issue of no significant hazards valves remain unchanged. No changes to any lessened. consideration, which is presented hardware or software that affects these The NRC staff has reviewed the below: The proposed changes do not components is planned. licensee’s analysis and, based on this involve a significant hazards The PORVs are pressure relieving devices review, it appears that the three considerations because the changes and only two failure modes need to be standards of 10 CFR 50.92(c) are would not: considered. The first is that one or more satisfied. Therefore, the NRC staff 1. Involve a significant increase in the PORVs or block valves fail to open when proposes to determine that the required. This is not probability or consequences of an accident amendment request involves no previously evaluated. a significant concern and is not a credible cause of any accident. The second mode is significant hazards consideration. The administrative changes will not impact Local Public Document Room the physical condition of the containment failing to close which includes vessel as it relates to the risk of fire, flood or depressurization of the RCS [reactor coolant Location: Fairfield County Library, 300 radiological hazard. system] and a reactor trip on low pressurizer Washington Street, Winnsboro, SC 2. Create the possibility of a new or pressure or overtemperature [delta]T. The 29180 different kind of accident from any consequences for the more limiting Attorney for licensee: Randolph R. previously analyzed. Pressurizer Safety Valve Accidental Mahan, South Carolina Electric & Gas In its present condition, the only accidents Depressurization event has been analyzed Company, Post Office Box 764, applicable to the site are those addressed with acceptable results. Columbia, South Carolina 29218 above. There is no increase in the consequences of an accident as a result of this change, NRC Project Director: Frederick J. 3. Involve a significant reduction in a Hebdon margin of safety. because only one PORV is required to The proposed administrative changes mitigate the consequences of a design basis South Carolina Electric & Gas Company would have no effect on any margins of Steam Generator Tube Rupture. There is (SCE&G), South Carolina Public Service sufficient redundancy to ensure one PORV is safety for any evaluated accidents. Authority, Docket No. 50-395, Virgil C. The NRC staff has reviewed the available to perform this function even if one Summer Nuclear Station, Unit No. 1, analysis of the licensee and, based on PORV is inoperable or incapable of being Fairfield County, South Carolina this review, it appears that the three manually cycled. The validation of the standards of 50.92(c) are satisfied. Emergency Operating Procedures on the Date of amendment request: July 28, VCSNS [Virgil C. Summer Nuclear Station] Therefore, the NRC staff proposes to 1995 simulator demonstrated that one pressurizer Description of amendment request: determine that the amendment request PORV has sufficient capacity to depressurize involves no significant hazards the RCS in a time frame which will not cause The proposed amendment would revise consideration. the offsite doses presented in the FSAR the Technical Specifications (TS) to Local Public Document Room [Final Safety Analysis Report] to be exclude the requirement to perform the Location: Saxton Community Library, exceeded. slave relay test of the 36-inch 911 Church Street, Saxton, The PORVs are utilized to depressurize the containment purge supply and exhaust Pennsylvania 16678Attorney for the RCS and equalize the pressure between the valves on a quarterly basis while the Licensee: Ernest L. Blake, Jr., Esquire, primary and secondary systems. This stops plant is in Modes 1, 2, 3, or 4. the intrusion of RCS water into the secondary Shaw, Pittman, Potts, and Trowbridge, Basis for proposed no significant which can be released into the atmosphere. hazards considerationdetermination: As 2300 N Street, N.W., Washington, D.C. By the time the PORVs are called upon, the 20037 affected steam generator (SG) has been required by 10 CFR 50.91(a), the NRC Project Director: Seymour H. identified and steps have been taken to licensee has provided its analysis of the Weiss isolate the faulted SG. This acts to minimize issue of no significant hazards the radiological impact on the health and consideration, which is presented South Carolina Electric & Gas safety of the public. In all cases, the dose below: Company, South Carolina Public results are within 10 CFR 100 limits. 1. Does the change involve a significant Service Authority, Docket No. 50-395, 2. The possibility of an accident or a increase in the probability or consequences Virgil C. Summer Nuclear Station, Unit malfunction of a different type than any of an accident previously evaluated? No. 1, Fairfield County, South Carolina previously evaluated is not created. No, the probability or consequences of an The proposed TSCR [TS Change Request] accident previously evaluated would not be Date of amendment request: June 30, does not involve any physical changes to the increased since no credit is taken for the 1995 plant or decrease the number of PORVs and valves in FSAR [Final Safety Analysis Description of amendment request: block valves that must be capable of Report] Chapter 15. The proposed amendment would revise performing their intended function. These The only credible accident discussed in the Technical Specifications (TS) for the components are used to mitigate the effects FSAR Chapter 15 that applies to these valves pressurizer power operated relief valves of postulated events and their failure has is a fuel handling accident inside Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42609 containment (15.4.5.1). The analysis assumes Attorney for licensee: Randolph R. consequences of an accident previously the escaped gases are released Mahan, South Carolina Electric & Gas evaluated. instantaneously to the environment via the Company, Post Office Box 764, Group B Changes: This proposed change is Reactor Columbia, South Carolina 29218 associated with implementation of the ARTS/ Building purge system. The analysis does NRC Project Director: Frederick J. MELLL analysis. The proposed change will not take credit for these valves nor for permit expansion of the current allowable filtration or holdup time during release. The Hebdon power/flow operating region and will apply result of the analysis is acceptable and offsite Tennessee Valley Authority, Docket a new methodology for assuring that fuel doses are within the limits of 10 CFR 100. Nos. 50-259, 50-260 and 50-296, Browns thermal and mechanical design limits are satisfied. Reference 3 evaluates operation in TS 3.6.1.7 requires that these valves be Ferry Nuclear Plant, Units 1, 2 and 3, sealed shut during Modes 1, 2, 3, and 4. the MELLL region with assumed When sealed shut, these valves will not open Limestone County, Alabama implementation of the ARTS changes. The via any signal. Date of amendment request: June 2, conclusion of reference 3 is that for all events With these valves already in a shut 1995 (TS 353) and parameters considered there is adequate position, neither the probability nor the Description of amendment request: design margin for operation in the MELLL consequences of an accident are increased. The proposed amendment supports region. Because operation in the MELLL 2. Does the change create the possibility of region maintains adequate design margin, the replacement of the existing power range proposed change does not significantly a new or different kind of accident from any neutron monitoring equipment and previously evaluated? increase the probability of an accident No, the 36’’ [inch] containment purge implements ARTS/MELLL [average previously evaluated. exhaust and supply valves will not be placed power range monitor and rod block In support of operation in the MELLL in a condition different from that evaluated monitor technical specifications/ region, the proposed change modifies flow- previously. maximum extended load line limit] biased APRM scram and rod block setpoints The only credible accident discussed in analysis improvements. and implements new RBM power-biased FSAR Chapter 15 that applies to these valves Basis for proposed no significant setpoints. This potentially changes the way is a fuel handling accident inside hazards considerationdetermination: As in which the APRM and RBM systems containment (15.4.5.1). The analysis assumes perform their mitigation functions. However, required by 10 CFR 50.91(a), the no credit for the flow-biased APRM scram or the escaped gases are released licensee has provided its analysis of the instantaneously to the environment via the rod block is taken in mitigation of any design Reactor Building purge system. The analysis issue of no significant hazards basis event; thus, changing the APRM does not take credit for these valves nor for consideration, which is presented setpoints does not impact the consequences filtration or holdup time during release. The below: of any accident previously evaluated. The result of the analysis is acceptable and offsite 1. The proposed amendment does not proposed changes to the RBM system doses are within the limits of 10 CFR 100. involve a significant increase in the potentially impact mitigation of the RWE. Additionally, TS 3.6.1.7. requires that probability or consequences of an accident However, per discussion in reference 3, the these valves be sealed shut during Modes 1, previously evaluated. proposed RBM changes will assure that the 2, 3, and 4. When sealed shut, these valves Group A Changes: This proposed TS RWE is not a limiting event; thus, the will not open via any signal. change is associated with the NUMAC PRNM consequences of the RWE are not increased. 3. Does the change involve a significant [nuclear measurement analysis and control The proposed change does not increase the reduction in the margin of safety? power range neutron monitor] retrofit design. consequences of an accident previously TS 4.3.2.1. requires that this slave relay test The proposed TS change involves evaluated. be performed quarterly. This surveillance is modification of the LCOs [limiting condition 2. The proposed amendment does not accomplished for the 36’’ [inch] containment for operations] and SRs [surveillance create the possibility of a new or different purge exhaust and supply valves by cycling requirements] for equipment designed to kind of accident from any accident the respective K615 relay. This will not mitigate events which result in power previously evaluated. provide assurance that the valve will perform increase transients. For the APRM [average The proposed changes (Group A and Group its safety function since the valve is sealed power range monitor] system mitigative B) involve modification and replacement of closed. The proposed change will exclude action is to block control rod withdrawal or the existing power range neutron monitoring the requirement to perform the K615 relay initiate a reactor scram which terminates the equipment, modification of the setpoints and test (auto actuation logic and actuation relays power increase when setpoints are exceeded. operational requirements for the APRM and - slave relay test) on a quarterly basis while For the RBM [rod-block monitor] system RBM systems, implementation of a new the plant is in Modes 1, 2, 3,or 4. mitigative action is to block continuous methodology for administering compliance TS 3.6.1.7. requires that these valves be control rod withdrawal prior to exceeding the with fuel thermal limits, and operation in an sealed shut during Modes 1, 2, 3, and 4. MCPR [minimum critical power ratio] safety extended power/flow domain. These When sealed shut, these valves will not open limit during a postulated Rod Withdrawal proposed changes do not modify the basic via any signal. Since this relay would not be Error [RWE]. The worst case failure of either functional requirements of the affected needed to supply a signal to place these the APRM or the RBM systems is failure to equipment, create any new system interfaces valves in the closed position, the margin of initiate mitigative action (failure to scram or or interactions, nor create any new system safety is not affected. block rod withdrawal). Failure to initiate failure modes or sequence of events that Based on the preceding analysis, SCE&G mitigative action will not increase the could lead to an accident. The worst case has determined that this change does no probability of an accident. Thus, the failure of the affected equipment is failure to involve a significant hazards consideration. proposed change does not increase the perform a mitigation action, and failure of probability of an accident previously this mitigative equipment does not create the The NRC staff has reviewed the evaluated. possibility of a new or different kind of licensee’s analysis and, based on this For the APRM and the RBM systems, the accident. The proposed change does not review, it appears that the three NUMAC PRNM design, together with revised create the possibility of a new or different standards of 10 CFR 50.92(c) are operability requirements (LCOs) and revised kind of accident from any accident satisfied. Therefore, the NRC staff testing requirements (SRs), results in previously evaluated. proposes to determine that the equipment which continues to perform the 3. The proposed amendment does not amendment request involves no same mitigation functions under identical involve a significant reduction in a margin of significant hazards consideration. conditions with reliability equal to or greater safety. than the equipment which it replaces. Group A Changes: This proposed TS Local Public Document Room Because there is no change in mitigation change is associated with the NUMAC PRNM Location: Fairfield County Library, 300 functions and because reliability of the retrofit design. The NUMAC PRNM change Washington Street, Winnsboro, SC functions is maintained, the proposed change does not impact reactor operating parameters 29180 does not involve an increase in the nor the functional requirements of the power 42610 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices range neutron monitoring system. The required by 10 CFR 50.91(a), the proposes to determine that the replacement equipment continues to provide licensee has provided its analysis of the amendment request involves no information, enforce control rod blocks and issue of no significant hazards significant hazards consideration. initiate reactor scrams under appropriate consideration, which is presented Local Public Document Room specified conditions. The proposed change Location: Athens Public Library, South does not revise any safety margin below: requirements. The replacement APRM/RBM 1. The proposed amendment does not Street, Athens, Alabama 35611 equipment has improved channel trip involve a significant increase in the Attorney for licensee: General accuracy compared to the current system and probability or consequences of an accident Counsel, Tennessee Valley Authority, meets or exceeds system requirements previously evaluated. 400 West Summit Hill Drive, ET llH, previously assumed in setpoint analysis. The proposed change to TS 3.5.C.3 clarifies Knoxville, Tennessee 37902 Thus, the ability of the new equipment to the operability requirements of the standby NRC Project Director: Frederick J. coolant supply capability. It does not change enforce compliance with margins of safety Hebdon equals or exceeds the ability of the or degrade the nuclear safety characteristics equipment which it replaces. The proposed of the RHRSW and RHR systems and will not Tennessee Valley Authority, Docket change does not involve a reduction in a affect the intent of the TS. The operation of Nos. 50-259, 50-260 and 50-296, Browns margin of safety. the standby coolant supply capability is not Ferry Nuclear Plant, Units 1, 2 and 3, a precursor to any design basis accident or Group B Changes: This proposed change is Limestone County, Alabama associated with implementation of transient analyzed in the BFN FSAR. The recommendations presented in the ARTS/ proposed changes to instrument numbers are Date of amendment request: June 16, administrative changes for the upgraded MELLL analysis. Operation in the MELLL 1995 (TS 360) drywell temperature and pressure region does not affect the ability of the plant Description of amendment request: instrumentation. The proposed changes do safety-related trips or equipment to perform The proposed change will revise the not affect the design basis or the safety their functions, nor does it cause any functions of the Primary Containment BFN Units 1, 2, and 3 Technical significant increase in offsite radiation doses system, since the function and Specifications (TS) to permit the resulting from any analyzed event. Analyses instrumentation range is not changed. Traversing In-Core Probe (TIP) system to documented in reference 3 demonstrate that Therefore, the probability of occurrence or be considered operable with less than for operation in the MELLL region adequate the consequences of an accident or five TIP machines operable. The margin to design limits is maintained. malfunction of equipment important to safety Implementation of the ARTS improvements proposed amendment will allow the previously evaluated in the safety analysis provides flow- and power-dependent thermal utilization of substitute data in lieu of report has not been increased. limits which maintain existing margins of data from inaccessible TIP measurement 2. The proposed amendment does not safety in normal operation, anticipated locations. The substitute data will be create the possibility of a new or different operational occurrences and accident events. kind of accident from any accident derived from either symmetric TIP Implementation of power-biased RBM previously evaluated. measurement locations (under certain setpoints improves the margin of safety in a The possibility for an accident or core conditions) or from normalized TIP postulated RWE by assuring that the RWE is malfunction of a different type than any data as calculated by the on-line core not a limiting event. The proposed change evaluated previously in the safety analysis monitoring system. does not involve a significant reduction in a report is not created by this change. The Basis for proposed no significant margin of safety. change to TS 3.5.C.3 adds the indication of The NRC staff has reviewed the hazards considerationdetermination: As associated valves of the function involved required by 10 CFR 50.91(a), the licensee’s analysis and, based on this and a clarification of operability for the review, it appears that the three licensee has provided its analysis of the standby coolant supply connection to be issue of no significant hazards standards of 10 CFR 50.92(c) are commensurate with the RHR cross-connect satisfied. Therefore, the NRC staff capability. The proposed changes to consideration, which is presented proposes to determine that the instrument numbers are administrative below: changes effected by the upgrade of 1. The proposed amendment does not amendment request involves no involve a significant increase in the significant hazards consideration. instrumentation. There are no automatic actions affected or compromised by these probability or consequences of an accident Local Public Document Room previously evaluated. Location: Athens Public Library, South changes. 3. The proposed amendment does not The TIP system is not used to prevent, or Street, Athens, Alabama 35611 involve a significant reduction in a margin of mitigate the consequences of any previously Attorney for licensee: General safety. analyzed accident or transient; nor are any Counsel, Tennessee Valley Authority, The proposed change to TS 3.5.C.3 does assumptions made in any accident analysis 400 West Summit Hill Drive, ET llH, not affect any acceptable limit of operation or relative to the operation of the TIP system. Knoxville, Tennessee 37902 analysis assumption in the TS or Bases. The The primary containment isolation function NRC Project Director: Frederick J. changes affect neither setpoints, calibration (TIP withdrawal) is not affected. The Hebdon intervals, nor functional test intervals. The proposed TS change does not alter the fundamental process involved in calibrating change does not affect any acceptable limit neutron instrumentation (LPRMs) [local Tennessee Valley Authority, Docket of operation or analysis assumption found in power range monitors], but requires that only Nos. 50-259, 50-260 and 50-296, Browns the TS or their bases. The proposed the equipment associated with the TIP Ferry Nuclear Plant, Units 1, 2 and 3, administrative changes to the instrument channels necessary for recalibrating LPRMs numbers do not affect the setpoint, Limestone County, Alabama and for core monitoring functions be calibration interval or function of the operable. Collection and storage of TIP data Date of amendment request: June 8, instrumentation. These changes do not affect without using all TIP channels is acceptable 1995 (TS 361) any limiting conditions of operation or because TIP machine normalization factors Description of amendment request: analysis assumption in the TSs or their bases. are ultimately derived from the most recent The proposed amendment clarifies the Therefore, the change does not reduce the full core TIP set, which intercalibrates the definition of operability for the RHRSW margin of safety as defined in the basis for TIP machines in a common core location. any TS. system standby coolant supply Additionally, the use of symmetric capability and revises the instrument The NRC staff has reviewed the detectors and analytical values as substitute numbers for several instruments that licensee’s analysis and, based on this data for inaccessible TIP channels does not have been upgraded. review, it appears that the three compromise the ability of the process Basis for proposed no significant standards of 10 CFR 50.92(c) are computer to accurately represent the spatial hazards considerationdetermination: As satisfied. Therefore, the NRC staff neutron flux distribution of the reactor core. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42611 The core monitoring methodology is changes would clarify that the main This is an alternative, NRC approved method presently based on symmetry of rod patterns steam line isolation valves leakage is for assessing the MSIV leakage contribution and fuel loading. This is not changed but accounted for separately from the and determining the radiological extended to use a higher order of symmetry integrated primary containment leak consequences. (octant symmetry) which exists with ‘‘type In accordance with the SRP, the safety A’’ sequence rod patterns. Therefore, this rate or combined local leak rate results. analysis for a design basis LOCA includes the change does not increase the probability or Also, two references would be deleted, maximum main steam line leak rate consequences of an accident previously the test duration for use of Bechtel separately from the maximum containment evaluated. Corporation Topical Report BN-TOP-1 leak rate. Within Appendix J it is implied 2. The proposed amendment does not would be clarified, and the requirement that Type A tests are intended to measure the create the possibility of a new or different to perform the third integrated leak rate primary containment overall integrated leak kind of accident from any accident in each 10-year service period in rate, but this vas before the SRP Section was developed which allows the MSIV previously evaluated. conjunction with the 10-year plant The proposed change does not involve the contribution to be accounted for separately in installation of any new equipment, or the inservice inspection would be deleted. the safety analysis. Therefore, the MSIV leak modification of any equipment designed to Exemptions to 10 CFR Part 50 Appendix rate should not be included in the prevent or mitigate the consequences of J, ‘‘Primary Reactor Containment measurement of the ILRT. Including the accidents or transients. Therefore, the Leakage Testing for Water-Cooled Power MSIV leakage in the combined local leak rate proposed amendment does not create the Reactors,’’ are also being requested in limit is also not necessary since a specific possibility of a new or different kind of conjunction with the proposed TS Type C MSIV leak rate has been specified in TS 3.6.1.2. accident from any accident previously changes. evaluated. In summary, there is no change in the Basis for proposed no significant probability or consequences of any accident 3. The proposed amendment does not hazards considerationdetermination: As involve a significant reduction in a margin of since the addition of the references and safety. required by 10 CFR 50.91(a), the footnotes to clarify the TS LCO and Actions The total core TIP reading uncertainties licensee has provided its analysis of the do not change the design of the plant, nor the operational characteristics of any plant will remain within the assumptions of the issue of no significant hazards system, nor the procedures by which the licensing basis. Therefore, the margin of consideration which is presented below: Operators run the plant. These changes only safety to the MCPR [minimum critical power Part A - Formalize the Approval for cite formal Appendix J exemptions which are ratio] safety limits is not reduced. The ability Excluding the Main Steam Line Isolation requested to document the approval Valve Leakages from Inclusion in i) the of the process computer to accurately previously received. A formal request for Overall Integrated Primary Containment Leak represent the spatial neutron flux exemption to the applicable paragraphs of 10 Rate and ii) the Combined Local Leak Rate, distribution for the reactor core is not CFR 50 Appendix J is also being submitted and Clarify that the Main Steam Lines are compromised. Additionally, the computer’s in a separate letter in conjunction with this Not Required to be Vented and Drained for ability to accurately predict the LHGR [linear proposed TS change. heat generation rate], APLHGR [average Type A Testing 2. The proposed changes do not create the planar linear heat generation rate], MCPR and 1. The proposed changes do not involve a possibility of a new or different kind of its ability to provide for LPRM calibration is significant increase in the probability or accident from any accident previously not compromised. Therefore, the proposed consequences of an accident previously evaluated. changes do not involve a significant evaluated. The proposed changes do not create the reduction in a margin of safety. Since Appendix J was originally possibility of a new or different kind of The NRC staff has reviewed the envisioned, alternative means of meeting the accident from any accident previously licensee’s analysis and, based on this intent of these requirements have been evaluated. There are no design changes being review, it appears that the three developed which provide an equivalent level made that would create a new type of standards of 10 CFR 50.92(c) are of protection of the public health and safety. accident or malfunction, and the method and However, since some of these alternatives satisfied. Therefore, the NRC staff manner of plant operation remains deviate from the specific wording of unchanged. The only change being made is proposes to determine that the Appendix J, exemptions are appropriate for amendment request involves no an exemption to 10 CFR 50 Appendix J these alternatives. Implicit in the FSAR which will be cited in the TS to document significant hazards consideration. treatment of the main steam line leakage, as the implicit and explicit approvals of the Local Public Document Room well as the TS requirements for main steam PNPP design and testing methods for main Location: Athens Public Library, South line leakage, are several deviations from the steam line isolation valves. The requirements Street, Athens, Alabama 35611 specific requirements of Appendix J. and bases for which the formal exemption is Attorney for licensee: General Although PNPP’s methods and practices for sought are currently presented and Counsel, Tennessee Valley Authority, Appendix J testing have been previously implemented in the licensing basis and the 400 West Summit Hill Drive, ET llH, described in correspondence to the NRC, a TS for PNPP. The objective of the regulation Knoxville, Tennessee 37902 formal exemption was not recognized to be is being met and will continue to be met. The NRC Project Director: Frederick J. needed at that time in that the NRC’s exemption to 10 CFR 50 Appendix J is being approval was perceived to be received by the Hebdon submitted in a separate letter in conjunction issuance of the PNPP TS. Exemption to four with this proposed TS change. The Cleveland Electric Illuminating separate paragraphs of 10 CFR 50 Appendix 3. The proposed changes do not involve a Company, Centerior Service Company, J will document the approvals previously significant reduction in a margin of safety. Duquesne Light Company, Ohio Edison received and incorporated into the TS for These changes do not involve a significant main steam line isolation valve testing during Company, Pennsylvania Power reduction in the margin of safety because the initial licensing of the PNPP. This TS they are administrative in nature. The Company, Toledo Edison Company, change adds references to footnotes within proposed change will only cite the NRC Docket No. 50-440, Perry Nuclear the TS LCO 3.6.3.1 to clarify which exemption that grants the deviation from Power Plant, Unit No. 1, Lake County, conditions represent exemptions to Appendix J. The proposed changes do not Ohio Appendix J. These exemptions are described affect any USAR design bases or accident in the Bases. Date of amendment request: October assumptions. Therefore, the proposed PNPP utilized the criteria described in the changes do not reduce the margin of safety 21, 1994 Standard Review Plan (SRP), Section 15.6.5, as defined in the bases for any Technical Description of amendment request: Appendix D, ‘‘Radiological Consequences of Specification. The proposed amendment would revise a Design Basis Loss-of-Coolant Accident: Part B - Revise Surveillance Requirement Technical Specification (TS) 3/4.6.1.2, Leakage from Main Steam Isolation Valve 4.6.1.2 to Eliminate Unnecessary References ‘‘Primary Containment Leakage.’’ The Leakage Control System (Rev. 1 - July 1981).’’ and ClarifY the Use of BN-TOP-1 42612 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 1. The proposed changes do not involve a they are administrative in nature and either because they are administrative in nature and significant increase in the probability or eliminate a redundant requirement or clarify remove an unnecessary tie between consequences of an accident previously the applicability and acceptability of an requirements. The proposed change does not evaluated. alternative, NRC approved, leak rate testing affect any USAR design bases, accident Surveillance Requirement 4.6.1.2 is provision within the TS. The proposed assumptions. or Technical Specification proposed to be revised to eliminate the direct changes do not affect any USAR design bases Bases. Therefore, the proposed change does reference to the ANSI Standards N45.4 and or accident assumptions. Therefore, the not reduce the margin of safety as defined in N56.8 within the text, because these same proposed changes do not reduce the margin the bases for any TS. Standards are listed within Appendix J. It is of safety as defined in the Bases for any Based upon the above considerations, it unnecessary to repeat the references to the Technical Specification. has been concluded that the proposed Standards within the Technical Part C - Decouple Performance of the Third changes do not involve significant hazards Specifications because the PNPP is still Type A Test from the Shutdown for the 10- considerations. required to be in compliance with the Year Plant Inservice Inspection The NRC staff has reviewed the regulations. No additional benefits are gained 1. The proposed change does not involve licensee’s analysis and, based on this and licensee flexibility to upgrade to later a significant increase in the probability or review, it appears that the three versions of the Standards is reduced since a consequences of an accident previously Technical Specification change is necessary evaluated. standards of 10 CFR 50.92(c) are to change the version of the Standard to The proposed change revises Surveillance satisfied. Therefore, the NRC staff which PNPP is committed. This change Requirement 4.6.1.2.a by removing the proposes to determine that the removes a redundant requirement to list second sentence requiring that the third test amendment request involves no these Standards in the Technical of each containment Integrated Leak Rate significant hazards consideration. Specifications. Therefore, this change cannot Test (ILRT) set be conducted during the Local Public Document Room involve a significant increase in the shutdown for the 10-year plant inservice Location: Perry Public Library, 3753 probability or consequences of an accident inspection. A request for an exemption to 10 Main Street, Perry, Ohio 44081 because the regulation is still required to be CFR 50 Appendix J, Paragraph III.D.l(a) is Attorney for licensee: Jay Silberg, Esq., met. also being submitted in conjunction with this Shaw, Pittman, Potts & Trowbridge, A reference to Topical Report BN-TOP-1 proposed change. Note that this change is continues to be retained within Surveillance also included in the proposed Appendix J 2300 N Street, NW., Washington, DC Requirement 4.6.1.2, and the use of the report rule changes currently under consideration 20037 is clarified to be for test durations less than and has been approved for several other NRC Project Director: Gail H. Marcus 24 hours. This reference is retained within plants. The deletion of this requirement from The Cleveland Electric Illuminating the TS since a reference to BN-TOP-1, though the Technical Specifications does not impact Company, Centerior Service Company, not specifically included within Appendix J, plant safety because the 10 CFR 50 Appendix is allowed by Section 7.6 of ANSI N45.4-1972 J requirement that three Type A containment Duquesne Light Company, Ohio Edison and has been approved for PNPP use by the ILRT tests to be performed over a 10 year Company, Pennsylvania Power NRC. The TS Bases are also proposed to be period is not affected. This change only Company, Toledo Edison Company, revised to include a statement that the use of removes an unnecessary connection between Docket No. 50-440, Perry Nuclear BN-TOP-1 is in accordance with Appendix J. the two regulations. Power Plant, Unit No. 1, Lake County, These changes result in no changes to plant The proposed change results in no changes Ohio systems and have no effect on accident to plant systems. The proposed change has conditions or assumptions. These proposed no effect on accident conditions or Date of amendment request: June 9 changes do not affect possible initiating assumptions. The proposed change does not and 30, 1995 events for accidents previously evaluated, or affect possible initiating events for accidents Description of amendment request: any system functional requirements. Hence, previously evaluated, or any system The licensee has requested a one-time these changes are purely administrative in functional requirements. Hence, the extension of the performance intervals that they are designed to eliminate a proposed change removes an unnecessary tie for certain Technical Specification redundant requirement and clarify the between regulations and does not affect plant Surveillance Requirements (SRs). applicability and acceptability of an operation in any way. Affected SRs include valve testing, and alternative leak rate testing provision within In summary, there is no change in the undervoltage instrumentation testing. the TS. These changes do not affect plant probability or consequences of any accident Basis for proposed no significant operation in any way. Therefore, the since the revision of the existing Surveillance proposed changes do not affect the Requirement to reflect the removal of an hazards considerationdetermination: As probability or consequences of any accident unnecessary tie between regulations does not required by 10 CFR 50.91(a), the previously evaluated. change the design of the plant, nor the licensee has provided its analysis of the 2. The proposed changes do not create the operational characteristics of any plant issue of no significant hazards possibility of a new or different kind of system, nor the procedures by which the consideration which is presented below: accident from any accident previously Operators run the plant. 1. The proposed change does not involve evaluated. 2. The propose change does not create the a significant increase in the probability or There are no design changes being made possibility of a new or different kind of consequences of an accident previously that would create a new type of accident or accident from any accident previously evaluated. malfunction, and the method and manner of evaluated. The proposed TS change requests one-time plant operation remains unchanged. These The proposed change removes an only extensions of the surveillance intervals changes eliminate a redundant requirement unnecessary tie between regulations. The related to: a) ASME Section XI valve leak and clarify the applicability and acceptability objective of the regulation continues to be rate, stroke and timing, and position of alternative leak rate testing provisions met. There are no design changes being made indication testing; b) Accident Monitoring within the TS. Since the alternative leak rate that would create a new type of accident or Instrumentation related to valve position testing provisions have been approved by the malfunction, and the method and manner of indication testing; c) Division 1, 2, and 3 NRC, the objective of the regulation plant operation remains unchanged. Degraded Voltage and Undervoltage continues to be met. Therefore, the proposed Therefore, the proposed change does not instrumentation LSFT; and, d) leak rate changes do not create the possibility of a new create the possibility of a new or different testing for hydrostatically tested containment or different kind of accident from any kind of accident from any accident isolation valves. accident previously evaluated. previously evaluated. Based on the discussion in the License 3. The proposed changes do not involve a 3. The proposed change does not involve Amendment Request which shows: significant reduction in a margin of safety. a significant reduction in a margin of safety. i) The extension of the interval for ASME These changes do not involve a significant The proposed change does not involve a Section XI stroke and timing, leak rate reduction in the margin of safety because significant reduction in the margin of safety measurement and position indication testing Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42613 requirements are acceptable based on results necessitate a physical alteration to the plant individual notices either because time of past testing which indicates a margin to TS (no new or different type of equipment will did not allow the Commission to wait limits will be maintained; be installed). In that the requested extension for this biweekly notice or because the ii) The extension of the interval for durations are small as compared to the action involved exigent circumstances. Position Indication Calibration as specified overall interval allowed by TS and past in Table 4.3.7.5-1, Item 17 is acceptable testing results provide confidence of no effect They are repeated here because the based on the testing results from the past two on equipment availability by extending the biweekly notice lists all amendments refueling outages that indicate no failures surveillance interval, the change does not issued or proposed to be issued have occurred: create the possibility of a new or different involving no significant hazards iii) LSFT interval extension for the kind of accident from any accident consideration. Division 1, 2, and 3 Degraded Voltage and previously evaluated. For details, see the individual notice Undervoltage instrumentation is acceptable 3. The proposed change will not involve a in the Federal Register on the day and based on the NRC Safety Evaluation Report significant reduction in the margin of safety. page cited. This notice does not extend (Peach Bottom Atomic Power Plant, Units 2 The proposed TS change requests a one- the notice period of the original notice. and 3, dated August 2, 1993) which time extension of the surveillance intervals supported extension of the interval for LSFT for ASME Section XI valve testing, Tennessee Valley Authority, Docket from 18 to 24 months. This was based on the instrumentation calibration, instrument Nos. 50-327 and 50-328, Sequoyah small probability of relay or contact failure channel LSFT, and containment isolation Nuclear Plant, Units 1 and 2, Hamilton relative to mechanical component failure valve hydrostatic leak rate testing. The County, Tennessee probability and, therefore, the increase in proposed changes do not necessitate a LSFT interval represented no significant physical alteration to the plant (no new or Date of application for amendments: change in the overall safety system different type of equipment will be installed). July 19, 1995 unavailability; and, In that the requested extension durations are Description of amendments request: iv) The extension of the interval for small as compared to the overall interval Amend the Sequoyah Nuclear Plant, hydrostatic leak testing of containment allowed by TS, NRC and industry evaluations Units 1 and 2 Technical Specification to isolation valves is acceptable based on the support extension of LSFT, and past testing consistently low past leak rate data which is incorporate new requirements results provide confidence of no effect on associated with steam generator tube a small percentage of the TS limits. equipment availability by extending the Therefore, from the above it is shown that surveillance interval, the change does not inspections and repair. the proposed changes will not significantly involve a significant reduction in the margin Date of publication of individual increase the probability of an accident of safety. notice in the Federal Register: August 1, previously evaluated. The proposed TS change requests a one- 1995 (60 FR 39198) The proposed TS change requests one-time time extension of the surveillance intervals Expiration date of individual notice: only extensions of the surveillance intervals for the division 1, 2, and 3 Undervoltage and August 31, 1995 related to TS SR 4.3.3.1, Table 4.3.3.1-1, Degraded Voltage instrumentation Local Public Document Room Items D.1 and D.2, Division 1, 2, and 3 calibration. The proposed changes do not Location: Chattanooga-Hamilton County Degraded Voltage and Undervoltage necessitate a physical alteration to the plant Library, 1101 Broad Street, Chattanooga, instrumentation calibration. [...] extension of (no new or different type of equipment will Tennessee 37402. the interval for this instrumentation is be installed). In that the requested extension acceptable based on the testing results from durations are small as compared to the Notice Of Issuance Of Amendments To the past two refueling outages. No failures overall interval allowed by TS and past Facility Operating Licenses have occurred which would negate the testing results provide confidence of no effect assurance that the instrumentation would on equipment availability by extending the During the period since publication of function as required for the requested surveillance interval, the change does not the last biweekly notice, the extended period. Accordingly, the proposed involve a significant reduction in the margin Commission has issued the following change will not significantly increase the of safety. amendments. The Commission has probability or consequences of an accident The NRC staff has reviewed the determined for each of these previously evaluated. licensee’s analysis and, based on this amendments that the application 2. The proposed change would not create complies with the standards and the possibility of a new or review, it appears that the three different kind of accident from any standards of 10 CFR 50.92(c) are requirements of the Atomic Energy Act accident previously evaluated. satisfied. Therefore, the NRC staff of 1954, as amended (the Act), and the The proposed TS change requests one-time proposes to determine that the Commission’s rules and regulations. extensions of the surveillance intervals for amendment request involves no The Commission has made appropriate ASME Section XI valve testing, significant hazards consideration. findings as required by the Act and the instrumentation calibration, instrument Local Public Document Room Commission’s rules and regulations in channel LSFT, containment isolation valve Location: Perry Public Library, 3753 10 CFR Chapter I, which are set forth in hydrostatic leak rate testing. The proposed Main Street, Perry, Ohio 44081 the license amendment. changes do not necessitate a physical Attorney for licensee: Jay Silberg, Esq., Notice of Consideration of Issuance of alteration to the plant (no new or different Amendment to Facility Operating type of equipment will be installed). In that Shaw, Pittman, Potts & Trowbridge, the requested extension durations are small 2300 N Street, NW., Washington, DC License, Proposed No Significant as compared to the overall interval allowed 20037 Hazards Consideration Determination, by TS, NRC and industry evaluations support NRC Project Director: Gail H. Marcus and Opportunity for A Hearing in extension of LSFT, and past testing results connection with these actions was provide confidence of no effect on equipment Previously Published Notices Of published in the Federal Register as availability by extending the surveillance Consideration Of Issuance Of indicated. interval, the change does not create the Amendments To Facility Operating Unless otherwise indicated, the possibility of a new or different kind of Licenses, Proposed No Significant Commission has determined that these accident from any accident previously Hazards Consideration Determination, amendments satisfy the criteria for evaluated. And Opportunity For A Hearing The proposed TS change requests one-time categorical exclusion in accordance extensions of the surveillance intervals for The following notices were previously with 10 CFR 51.22. Therefore, pursuant the Division 1, 2, and 3 Undervoltage and published as separate individual to 10 CFR 51.22(b), no environmental Degraded Voltage instrumentation notices. The notice content was the impact statement or environmental calibration. The proposed changes do not same as above. They were published as assessment need be prepared for these 42614 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices amendments. If the Commission has East McDowell Road, Phoenix, Arizona Local Public Document Room prepared an environmental assessment 85004. Location: Cameron Village Regional under the special circumstances Library, 1930 Clark Avenue, Raleigh, Carolina Power & Light Company, et provision in 10 CFR 51.12(b) and has North Carolina 27605. al., Docket No. 50-400, Shearon Harris made a determination based on that Nuclear Power Plant, Unit 1, Wake and Commonwealth Edison Company, assessment, it is so indicated. For further details with respect to the Chatham Counties, North Carolina Docket Nos. STN 50-456 and STN 50- action see (1) the applications for Date of application for amendment: 457, Braidwood Station, Unit Nos. 1 amendment, (2) the amendment, and (3) February 6, 1995 and 2, Will County, Illinois the Commission’s related letter, Safety Brief description of amendment: The Date of application for amendments: Evaluation and/or Environmental amendment allows the relocation of June 8, 1995, which superseded the Assessment as indicated. All of these cycle-specific core operating limits of December 16, 1994, request in its items are available for public inspection Figure 3.1-1, Shutdown Margin versus entirety, and additional correspondence at the Commission’s Public Document Boron Concentration in Technical dated November 30, 1994, April 27, May Room, the Gelman Building, 2120 L Specification (TS) 3.1.1.2, Shutdown 5, May 11 and June 23, 1995. Street, NW., Washington, DC, and at the Margin- Modes 3, 4, and 5, to the plant Brief description of amendments: The local public document rooms for the Core Operating Limits Report. amendments revised Figure 3.4-4a particular facilities involved. Date of issuance: August 1, 1995 ‘‘Nominal PORV Pressure Relief Effective date: August 1, 1995 Setpoint Versus RCS Temperature for Arizona Public Service Company, et al., Amendment No. 59 the Cold Overpressure Protection Docket Nos. STN 50-528, STN 50-529, Facility Operating License No. NPF- (LTOP) System’’ in the Braidwood Unit and STN 50-530, Palo Verde Nuclear 63. Amendment revises the Technical 1’s Technical Specifications. The Generating Station, Units 1, 2, and 3, Specifications revision extends the applicability of Maricopa County, Arizona Date of initial notice in Federal Figure 3.4-4a from 5.37 effective full Date of applications for amendments: Register: March 15, 1995 (60 FR 14017) power years (EFPY) to 16 EFPY. In December 30, 1993 and July 12, 1994. The Commission’s related evaluation of addition, the amendments remove the The December 30, 1993, application was the amendment is contained in a Safety 638 psig administrative limit line from supplemented by letters dated Evaluation dated August 1, 1995.No the LTOPS curve, because the November 30, 1994, May 24, 1995, and significant hazards consideration appropriate instrument uncertainties June 21, 1995, and the July 12, 1994, comments received: No and discharge piping pressure limits application was supplemented by letter Local Public Document Room have been incorporated in the new dated June 21, 1995. Location: Cameron Village Regional curve. Finally, the amendments Brief description of amendments: The Library, 1930 Clark Avenue, Raleigh, contains administrative changes to amendments (1) revise the degraded North Carolina 27605. Figure 3.4-4a and its associated index voltage relay trip setpoint and (2) Carolina Power & Light Company, et page. enhance the current presentation of the al., Docket No. 50-400, Shearon Harris Date of issuance: July 24, 1995 Effective date: July 24, 1995 information regarding the loss-of-voltage Nuclear Power Plant, Unit 1, Wake and Amendment Nos.: 64 and 64 relay setpoint. A time-voltage curve has Chatham Counties, North Carolina been added to the technical Facility Operating License Nos. NPF- specifications as a more accurate Date of application for amendment: 72 and NPF-77: The amendments characterization of the inverse-time March 30, 1995, as supplemented July 6, revised the Technical Specifications. relay response. 1995. The July 6, 1995, submittal did Date of initial notice in Federal Date of issuance: July 21, 1995 not change the initial no significant Register: June 21, 1995 (60 FR 32360). Effective date: July 21, 1995, to be hazards consideration determination; it The June 23, 1995, letter, corrected a implemented within 45 days of contained clarifying information only. collating error in the June 8, 1995, issuance. Brief description of amendment: The submittal and did not change the initial Amendment Nos.: Unit 1 - amendment revises the Emergency proposed no significant hazards Amendment No. 96; Unit 2 - Diesel Generator (EDG) surveillance consideration determination. The Amendment No. 84; Unit 3 - requirements contained in TS 3/48.1.1.2 Commission’s related evaluation of the Amendment No. 67 to be consistent with NUREG-1431, amendments is contained in a Safety Facility Operating License Nos. NPF- ‘‘Standard Technical Specifications, Evaluation dated July 24, 1995.No 41, NPF-51, and NPF-74: The Westinghouse Plants,’’ and to eliminate significant hazards consideration amendments revised the Technical the need for duplicate EDG testing being comments received: No Specifications. performed to satisfy the requirements of Local Public Document Room Date of initial notice in Federal the Station Blackout Rule and the Location: Wilmington Public Library, Register: June 8, 1994 and August 17, Maintenance Rule. 201 S. Kankakee Street, Wilmington, 1994 (59 FR 29625 and 59 FR 42334) Date of issuance: August 1, 1995 Illinois 60481. The November 30, 1994, May 24, 1995, Effective date: August 1, 1995 and June 21, 1995, letters provided Amendment No.: 60 Commonwealth Edison Company, additional clarifying information and Facility Operating License No. NPF- Docket Nos. STN 50-454 and STN 50- did not change the initial no significant 63. Amendment revises the Technical 455, Byron Station, Unit Nos. 1 and 2, hazards consideration determination. Specifications Ogle County, Illinois Docket Nos. STN The Commission’s related evaluation of Date of initial notice in Federal 50-456 and STN 50-457, Braidwood the amendments is contained in a Safety Register: April 26, 1995 (60 FR 20515) Station, Unit Nos. 1 and 2, Will County, Evaluation dated July 21, 1995.No The Commission’s related evaluation of Illinois significant hazards consideration the amendment is contained in a Safety Date of application for amendments: comments received: No. Evaluation dated August 1, 1995.No March 23, 1994, as supplemented on Local Public Document Room significant hazards consideration July 26, 1994, and subsequently Location: Phoenix Public Library, 12 comments received: No superseded by a submittal dated Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42615 February 15, 1995. The February 15, Facility Operating License Nos. DPR- steam generator tubes with roll 1995, request was supplemented on 19, DPR-25, DPR-29 and DPR-30. The transition indications to remain in February 28, 1995. amendments revised the Technical service until the September 1995 Brief description of amendments: The Specifications. refueling outage. amendments approve a maximum Date of initial notice in Federal Date of issuance: July 26, 1995 moderator temperature coefficient Register: June 23, 1993 (58 FR 34071) Effective date: July 26, 1995 (MTC) of +7 pcm/°F and relocate The Commission’s related evaluation of Amendment No.: 167 specification of the cycle specific MTC the amendments is contained in a Safety Facility Operating License No. DPR- from the Technical Specifications to the Evaluation dated June 27, 1995. No 39: The amendment revises the operating limits report. The staff also significant hazards consideration Technical Specifications. The June 2, approved the methodology proposed by comments received: No June 16, and July 12, 1995, submittals the licensee for ensuring that the plants Local Public Document Room provided additional clarifying continue to meet the anticipated Location: for Dresden, Morris Area information that did not change the transient without scram (ATWS) rule Public Library District, 604 Liberty initial proposed no significant hazards (10 CFR 50.62) during operation with Street, Morris, Illinois 60450; for Quad consideration determination. The cycle specific MTCs. Cities, Dixon Public Library, 221 information, however, included changes Date of issuance: July 27, Hennepin Avenue, Dixon, Illinois to details of the administrative limits 1995Effective date: Immediately, to be 61021. mentioned in the initial proposed no implemented within 30 days. significant hazards consideration Amendment Nos.: Byron Units 1 and Commonwealth Edison Company, determination.Public comments 2 - 73, 73 and Braidwood Units 1 and Docket Nos. 50-373 and 50-374, LaSalle requested as to proposed no significant 2 - 65, 65 County Station, Units 1 and 2, LaSalle hazards consideration determination: Facility Operating License Nos. NPF- County, Illinois Yes (60 FR 27798). This notice provided 37, NPF-66, NPF-72 and NPF-77: The Date of application for amendments: an opportunity to submit comments on amendments revised the Technical December 14, 1994 the Commission’s proposed no Specifications. Brief description of amendments: The significant hazards consideration Date of initial notice in Federal amendments revise the surveillance test determination. No comments have been Register: April 12, 1995 (60 FR 18623) intervals and allowed outage times for received. The notice also provided for The Commission’s related evaluation of certain actuation instrumentation in the an opportunity to request a hearing by the amendments is contained in a Safety reactor protection, isolation, emergency June 26, 1995, but indicated that if the Evaluation dated July 27, 1995.No core cooling, control rod withdrawal Commission makes a final no significant significant hazards consideration block, monitoring and feedwater/main hazards consideration determination comments received: No turbine trip systems. The amendments any such hearing would take place after Local Public Document Room also include changes to the feedwater/ issuance of the amendment. The Location: For Byron, the Byron Public main turbine trip limiting condition for Commission’s related evaluation of the Library District, 109 N. Franklin, P.O. operation required actions, several amendments, finding of exigent Box 434, Byron, Illinois 61010; for mode related changes to the nuclear circumstances and final no significant Braidwood, the Wilmington Public instrumentation and rod block hazards consideration determination is Library, 201 S. Kankakee Street, specifications, shiftly channel check contained in a Safety Evaluation dated Wilmington, Illinois 60481. requirements for several systems, and July 26, 1995. Commonwealth Edison Company, several editorial changes to correct Local Public Document Room Docket Nos. 50-237 and 50-249, errors and remove outdated footnotes. Location: Waukegan Public Library, 128 Dresden Nuclear Power Station, Units 2 Date of issuance: August 2, 1995 N. County Street, Waukegan, Illinois Effective date: Immediately, to be and 3, Grundy County, Illinois Docket 60085. implemented within 90 days. Nos. 50-254 and 50-265, Quad Cities Amendment Nos.: 104 and 90 Consumers Power Company, Docket Nuclear Power Station, Units 1 and 2, Facility Operating License Nos. NPF- No. 50-155, Big Rock Point Plant, Rock Island County, Illinois 11 and NPF-18: The amendments Charlevoix County, Michigan Date of application for amendments: revised the Technical Specifications. Date of application for amendment: July 29, 1992, as supplemented January Date of initial notice in Federal December 15, 1994 14, 1993, February 16, 1993, and May 9, Register: March 1, 1995 (60 FR 11128) Brief description of amendment: The 1995. The Commission’s related evaluation of amendment revises Technical Brief description of amendments: The the amendments is contained in a Safety Specification 11.3.1.5 ACTION a. to amendments upgrade the current Evaluation dated August 2, 1995.No eliminate the need to demonstrate that custom Technical Specifications for significant hazards consideration the actuation circuitry of the unaffected Dresden and Quad Cities to the comments received: No reactor depressurization system Standard Technical Specifications Local Public Document Room channels is operable. In addition, the contained in NUREG-0123, ‘‘Standard Location: Jacobs Memorial Library, amendment makes an editorial change Technical Specification General Electric Illinois Valley Community College, to correct a typographical error. Plants BWR/4.’’ These amendments Oglesby, Illinois 61348. Date of issuance: July 28, 1995 upgrade only Section 3/4.3, ‘‘Reactivity Effective date: July 28, 1995 Control.’’ Commonwealth Edison Company, Amendment No.: 115 Date of issuance: July 27, 1995 Docket No. 50-295, Zion Nuclear Power Facility Operating License No. DPR-6. Effective date: Immediately, to be Station, Unit 1, Lake County, Illinois Amendment revised the Technical implemented no later than December Date of application for amendment: Specifications. 31, 1995, for Dresden Station and June May 17, 1995, as supplemented on June Date of initial notice in Federal 30, 1996, for Quad Cities Station. 2, June 16, and July 12, 1995. Register: April 26, 1995 (60 FR 20516) Amendment Nos.: 137, 131, 158, and Brief description of amendment: The The Commission’s related evaluation of 154 amendment allows a limited number of the amendment is contained in a Safety 42616 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Evaluation dated July 28, 1995. No The April 27, 1995, submittal provided CFR 50.59. No changes are being made significant hazards consideration clarifying information which was within to the technical content of the affected comments received: No. the scope of the initial application and TS pages. Local Public Document Room did not affect the staff’s initial proposed Date of issuance: July 24, 1995 Location: North Central Michigan no significant hazards consideration Effective date: As of the date of College, 1515 Howard Street, Petoskey, findings. The Commission’s related issuance to be implemented within 30 Michigan 49770. evaluation of the amendment is days contained in a Safety Evaluation dated Amendment Nos.: 132 and 126 Consumers Power Company, Docket July 26, 1995.No significant hazards Facility Operating License Nos. NPF- No. 50-155, Big Rock Point Plant, consideration comments received: No. 35 and NPF-52: Amendments revised Charlevoix County, Michigan Local Public Document Room the Technical Specifications. Date of application for amendment: Location: Van Wylen Library, Hope Date of initial notice in Federal March 4, 1993, as revised April 14, College, Holland, Michigan 49423. Register: May 10, 1995 (60 FR 24910) 1993, as supplemented April 19 and The Commission’s related evaluation of May 31, 1995 Duke Power Company, et al., Docket the amendments is contained in a Safety Brief description of amendment: The Nos. 50-413 and 50-414, Catawba Evaluation dated July 24, 1995.No amendment revises the Technical Nuclear Station, Units 1 and 2, York significant hazards consideration Specifications (TS) to conform to the County, South Carolina comments received: No wording of the revised 10 CFR Part 20, Date of application for amendments: Local Public Document Room ‘‘Standards for Protection Against April 12, 1995 Location: York County Library, 138 East Radiation,’’ and to reflect a separation of Brief description of amendments: The Black Street, Rock Hill, South Carolina chemistry and radiation protection amendments delete Technical 29730. responsibilities. Specification (TS) 3/4.3.4, ‘‘Turbine Duke Power Company, Docket Nos. 50- Date of issuance: August 2, 1995 Overspeed Protection,’’ and its 369 and 50-370, McGuire Nuclear Effective date: August 2, 1995 associated Bases. The deletion of TS 3/ Station, Units 1 and 2, Mecklenburg Amendment No.: 16 4.3.4 and its Bases provides Duke Power County, North Carolina Facility Operating License No. DPR-6. Company the flexibility to implement Date of application for amendments: Amendment revised the Technical the manufacturer’s recommendations for April 12, 1995 Specifications. turbine steam valve surveillance test Brief description of amendments: The Date of initial notice in Federal requirements. These test requirements amendments delete Technical Register: May 12, 1993 (58 FR 28053), will be contained in the Selected Specification (TS) 3/4.3.4, ‘‘Turbine as corrected June 1, 1993 (58 FR 31222). Licensee Commitment Manual. Overspeed Protection,’’ and its The supplemental submittals were Date of issuance: July 21, 1995 associated Bases. The deletion of TS 3/ noticed on June 21, 1995 (60 FR 32361). Effective date: As of the date of 4.3.4 and its associated Bases provides The Commission’s related evaluation of issuance to be implemented within 30 Duke Power Company the flexibility to the amendment is contained in a Safety days from the date of issuance implement the manufacturer’s Evaluation datedNo significant hazards Amendment Nos.: 131 and 125 recommendations for turbine steam Facility Operating License Nos. NPF- consideration comments received: No. valve surveillance test requirements. Local Public Document Room 35 and NPF-52: Amendments revised These test requirements will be Location: North Central Michigan the Technical Specifications. contained in the Selected Licensee Date of initial notice in Federal College, 1515 Howard Street, Petoskey, Commitment (SLC) Manual. The SLC Register: June 21, 1995 (60 FR 32361) Michigan 49770. Manual is Chapter 16 of the Updated The Commission’s related evaluation of Consumers Power Company, Docket Final Safety Analysis Report. the amendments is contained in a Safety Date of issuance: August 2, 1995 No. 50-255, Palisades Plant, Van Buren Evaluation dated July 21, 1995. No County, Michigan Effective date: As of the date of significant hazards consideration issuance to be implemented within 30 Date of application for amendment: comments received: No days from the date of issuance April 7, 1994, as supplementedApril 27, Local Public Document Room Amendment Nos.: 156 and 138 1995. Location: York County Library, 138 East Facility Operating License Nos. NPF- Brief description of amendment: This Black Street, Rock Hill, South Carolina 9 and NPF-17: Amendments revised the amendment relocates certain Technical 29730. Technical Specifications. Specifications (TS) that contain fuel Duke Power Company, et al., Docket Date of initial notice in Federal cycle-specific parameter limits that Nos. 50-413 and 50-414, Catawba Register: June 21, 1995 (60 FR 32362) change with core reloads to a Core Nuclear Station, Units 1 and 2, York The Commission’s related evaluation of Operating Limits Report. TS bases have County, South Carolina the amendments is contained in a Safety also been revised to refer to limits Evaluation dated August 2, 1995.No relocated to the COLR. A portion of the Date of application for amendments: significant hazards consideration amendment request was denied. A January 18, 1995. comments received: No. separate Notice of Denial of Amendment Brief description of amendments: The Local Public Document Room has been sent to the Federal Register for amendments relocate the requirements Location: Atkins Library, University of publication. for the seismic instrumentation, North Carolina, Charlotte (UNCC Date of issuance: July 26, 1995 meteorological instrumentation, and Station), North Carolina 28223. Effective date: July 26, 1995 loose-part detection system, and the Amendment No.: 169 associated Bases and surveillance Duke Power Company, Docket Nos. 50- Facility Operating License No. DPR- requirements, from the TS to the 369 and 50-370, McGuire Nuclear 20. Amendment revised the Technical Selected Licensee Commitment Manual Station, Units 1 and 2, Mecklenburg Specifications. (Chapter 16 of the FSAR). This will County, North Carolina Date of initial notice in Federal allow future changes to these controls to Date of application for amendments: Register: May 25, 1994 (59 FR 27053) be performed under the provisions of 10 September 28, 1994, as supplemented Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42617 by letters dated May 3 and June 14, Facility Operating License Nos. NPF- scheduling requirements for Type A 1995. 9 and NPF-17: Amendments revised the containment leakage rate tests from the Brief description of amendments: The Technical Specifications. Technical Specifications for Waterford 3 amendments revise Technical Date of initial notice in Federal and replaced these requirements with a Specification Tables 3.3-3, 3.3-4, 3.3-5, Register: March 1, 1995 (60 FR 11132) requirement to perform Type A, testing and 4.3-2 of the Engineered Safety The Commission’s related evaluation of in accordance with Appendix J to 10 Features Actuation System the amendments is contained in a Safety CFR Part 50. The proposed changes Instrumentation tables to update the Evaluation dated August 2, 1995.No adopt the wording for primary ‘‘Loss of Power’’ function. significant hazards consideration containment integrated leak rate testing Date of issuance: August 2, 1995 comments received: No. that is consistent with the requirements Effective date: As of the date of Local Public Document Room of the Combustion Engineering issuance to be implemented within 60 Location: Atkins Library, University of Improved Standard Technical days, or 60 days after the completion North Carolina, Charlotte (UNCC Specifications (NUREG 1432). The date of the Unit 2 modification, Station), North Carolina 28223. proposed changes also include several whichever is later. Duquesne Light Company, et al., Docket administrative changes. Date of issuance: August 3, 1995 Amendment Nos.: 157 and 139 Nos. 50-334 and 50-412, Beaver Valley Effective date: August 3, 1995, to be Facility Operating License Nos. NPF- Power Station, Unit Nos. 1 and 2, implemented within 60 days of 9 and NPF-17: Amendments revised the Shippingport, Pennsylvania Technical Specifications. issuance. Date of initial notice in Federal Date of application for amendments: Amendment No.: 110 Register: December 21, 1994 (59 FR February 4, 1994, as supplemented June Facility Operating License No. NPF- 65811) The May 3 and June 14, 1995, 29, 1995. 38. Amendment revised the Technical letters provided clarifying information Brief description of amendments: Specifications. that did not change the scope of the These amendments modify the Date of initial notice in Federal September 28, 1994, application and the Technical Specifications (TSs) related to Register: June 6, 1995 (60 FR 29876) initial proposed no significant hazards containment air locks (TSs 1.8, 3/4.6.1.1 The Commission’s related evaluation of consideration determination. The and 3/4.6.1.3) and associated Bases to the amendment is contained in a Safety Commission’s related evaluation of the make them as close to the NRC’s Evaluation dated August 3, 1995.No amendments is contained in a Safety Improved Standard Technical significant hazards consideration Evaluation dated August 2, 1995. No Specifications (NUREG-1431) as the comments received: No. Local Public Document Room significant hazards consideration plant-specific design will permit. The Location: University of New Orleans comments received: No. changes in TS 3/4.6.1.1 and 3/4.6.1.3 Library, Louisiana Collection, Lakefront, Local Public Document Room modify surveillance requirements and New Orleans, LA 70122. Location: Atkins Library, University of limiting conditions for operation and North Carolina, Charlotte (UNCC effect numerous administrative and Georgia Power Company, Oglethorpe Station), North Carolina 28223. format changes. Power Corporation, Municipal Electric Date of issuance: July 26, 1995 Authority of Georgia, City of Dalton, Duke Power Company, Docket Nos. 50- Effective date: Units 1 and 2, as of the Georgia, Docket Nos. 50-321 and 50- 369 and 50-370, McGuire Nuclear date of issuance and shall be 366, Edwin I. Hatch Nuclear Plant, Station, Units 1 and 2, Mecklenburg implemented within 60 days. Units 1 and 2, Appling County, Georgia County, North Carolina Amendment Nos.: 190 and 72 Facility Operating License Nos. DPR- Date of application for amendments: Date of application for amendments: 66 and NPF-73: Amendments revised October 13, 1994, as supplemented by January 18, 1995 the Units 1 and 2 Technical letters dated January 13 and May 4, Brief description of amendments: The Specifications, and the Unit 2 License. 1995. amendments delete selected Technical Date of initial notice in Federal Brief description of amendments: The Specification (TS) requirements related Register: July 20, 1994 (59 FR 37070) amendments revise the Technical to instrumentation from the TS, and The June 29, 1995 letter did not change Specifications to lower the anticipated relocate them to the Selected Licensee the original no significant hazards transient without scram-recirculation Commitment (SLC) Manual, with their consideration determination or expand pump trip (ATWS-RPT) setpoint by associated Bases and surveillance the scope of the July 20, 1994 Federal approximately 2 feet 2 inches to requirements. No changes are being Register notice.The Commission’s minimize the potential for RPTs made to the technical content of the related evaluation of the amendments is following reactor scram, and allow affected TS pages. Future changes to the contained in a Safety Evaluation dated restarting the recirculation pump SLC Manual (Chapter 16 of the Final July 26, 1995.No significant hazards following an RPT when the temperature Safety Analysis Report) will be consideration comments received: No. differential between the coolant at the controlled by the provisions of 10 CFR Local Public Document Room reactor bottom head and the reactor 50.59. The relocated requirements Location: B. F. Jones Memorial Library, steam dome cannot be obtained, include the following: 663 Franklin Avenue, Aliquippa, provided certain conditions are met. TS 3/4.3.3.3, Seismic Instrumentation Pennsylvania 15001. Date of issuance: July 21, 1995 TS 3/4.3.3.4, Meteorological Effective date: As of the date of Instrumentation Entergy Operations, Inc., Docket No. issuance to be implemented within 60 TS 3/4.10, Loose-Part Detection 50-382, Waterford Steam days. System ElectricStation, Unit 3, St. Charles Amendment Nos.: 196 and 136 Date of issuance: August 2, 1995 Parish, Louisiana Facility Operating License Nos. DPR- Effective date: As of the date of Date of amendment request: May 12, 57 and NPF-5. Amendments revised the issuance to be implemented within 30 1995 Technical Specifications. days from the date of issuance Brief description of amendment: The Date of initial notice in Federal Amendment Nos.: 158 and 140 amendment removed the specific Register: December 21, 1994 (59 FR 42618 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 65813). The January 13 and May 4, Effective date: July 25, 1995 911 Boling Highway, Wharton, TX 1995, letters provided clarifying Amendment No.: 82 77488. information that did not change the Facility Operating License No. NPF- Houston Lighting & Power Company, scope of the October 13, 1994, 47. The amendment revised the City Public Service Board of San application and initial proposed no operating license. Antonio, Central Power and Light significant hazards consideration Date of initial notice in Federal Company, City of Austin, Texas, Docket determination.The Commission’s Register: August 4, 1993 (58 FR 41505) Nos. 50-498 and 50-499, South Texas related evaluation of the amendments is The additional information contained in Project, Units 1 and 2, Matagorda contained in a Safety Evaluation dated the supplemental letter dated January County, Texas July 21, 1995. No significant hazards 31, 1995, was clarifying in nature and consideration comments received: No thus, within the scope of the initial Date of amendment request: May 2, Local Public Document Room notice and did not affect the staff’s 1995 Location: Appling County Public proposed no significant hazards Brief description of amendments: The Library, 301 City Hall Drive, Baxley, consideration determination.The amendments revised Technical Georgia 31513. Commission’s related evaluation of the Specifications 3.4.2.2. and 3.7.1.1 (Table amendment is contained in a Safety 3.7-2) by relaxing the lift setting GPU Nuclear Corporation, et al., Evaluation dated July 25, 1995.No Docket No. 50-289, Three Mile Island tolerances of the pressurizer safety significant hazards consideration valves from plus or minus 1% to plus Nuclear Station, Unit No. 1, Dauphin comments received. No. County, Pennsylvania or minus 2% and the main steam safety Local Public Document Room valves from plus or minus 1% to plus Date of application for amendment: Location: Government Documents or minus 3%, respectively. In addition, June 1, 1995 Department, Louisiana State University, a footnote was added to require that the Brief description of amendment: The Baton Rouge, LA 70803. pressurizer safety valves and main amendment revises the TMI-1 Technical Houston Lighting & Power Company, steam safety valves setpoint tolerances Specifications to allow the use of two City Public Service Board of San be restored to within plus or minus 1% zirconium-based advanced fuel rod Antonio, Central Power and Light whenever a lift setting is determined to cladding materials manufactured by the Company, City of Austin, Texas, Docket be outside plus or minus 1% following Babcock & Wilcox Fuel Company. valve testing. Date of issuance: July 24, 1995 Nos. 50-498 and 50-499, South Texas Date of issuance: July 24, 1995 Project, Units 1 and 2, Matagorda Date of issuance: July 25, 1995 Effective date: July 24, 1995 County, Texas Effective date: July 25, 1995, to be Amendment No.: 194 Date of amendment request: April 27, implemented within 30 days of Facility Operating License No. DPR- 1995, as supplemented by letters dated issuance. 50. Amendment revised the Technical May 4 and 25, 1995. Amendment Nos.: Unit 1 - Specifications. Brief description of amendments: The Amendment No. 78; Unit 2 - Date of initial notice in Federal amendments revised the tables Amendment No. 67 Register: June 21, 1995 (60 FR 32366) associated with Technical Facility Operating License Nos. NPF- The Commission’s related evaluation of Specifications (TSs) 3/4.3.3.5, Remote 76 and NPF-80. The amendments this amendment is contained in a Safety Shutdown System, to eliminate the revised the Technical Specifications. Evaluation dated July 24, 1995.No requirement for core exit thermocouples Date of initial notice in Federal significant hazards consideration (CETs). The amendments also revised Register: June 6, 1995 (60 FR 29877) comments received: No. the tables associated with TS 3/4.3.3.6, The Commission’s related evaluation of Local Public Document Room Accident Monitoring Instrumentation, the amendments is contained in a Safety Location: Law/Government Publications to require two operable channels of Evaluation dated July 25, 1995.No Section, State Library of Pennsylvania, CETs, where each channel is required to significant hazards consideration (REGIONAL DEPOSITORY) Walnut have at least two operable CETs per core comments received: No Street and Commonwealth Avenue, Box quadrant. Each channel is also required Local Public Document Room 1601, Harrisburg, PA 17105. to have at least four operable CETs in at Location: Wharton County Junior Gulf States Utilities Company, Cajun least one quadrant to support the College, J. M. Hodges Learning Center, Electric Power Cooperative, and operability of the subcooling margin 911 Boling Highway, Wharton, TX Entergy Operations, Inc., Docket No. monitors. 77488. 50-458, River Bend Station, Unit 1, Date of issuance: July 24, 1995 Effective date: July 24, 1995 Maine Yankee Atomic Power Company, West Feliciana Parish, Louisiana Amendment Nos.: Unit 1 - Docket No. 50-309, Maine Yankee Date of amendment request: May 13, Amendment No. 77; Unit 2 - Atomic Power Station, Lincoln County, 1993 as supplemented by letter dated Amendment No. 66 Maine January 31, 1995 Facility Operating License Nos. NPF- Brief description of amendment: The 76 and NPF-80. The amendments Date of application for amendment: amendment revises Attachment 3 of the revised the Technical Specifications. March 7, 1995, as supplemented on June license conditions to remove several Date of initial notice in Federal 7, 1995. license conditions pertaining to the Register: June 21, 1995 (60 FR 32366) Brief description of amendment: The Division I and II Transamerica Delaval, The Commission’s related evaluation of amendment adds an Exception to Inc. emergency diesel generators. The the amendments is contained in a Safety Technical Specifications 3.6.A and conditions pertain to engine overhaul Evaluation dated July 24, 1995. No 3.6.C. The Exception permits reduced frequency, maintenance and significant hazards consideration component cooling water flow for short surveillance program, and inspection of comments received: No periods of time, while component crankshafts, cylinder heads, engine Local Public Document Room cooling water heat exchangers are block, and turbochargers. Location: Wharton County Junior shifted. Date of issuance: July 25, 1995 College, J. M. Hodges Learning Center, Date of issuance: July 24, 1995 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42619 Effective date: As of the date of Northeast Nuclear Energy Company, PECO Energy Company, Public Service issuance, to be implemented within 30 Docket No. 50-245, Millstone Nuclear Electric and Gas Company, Delmarva days. Power Station, Unit 1, New London Power and Light Company, and Amendment No.: 151 County, Connecticut Atlantic City Electric Company, Docket Nos. 50-277 and 50-278, Peach Bottom Facility Operating License No. DPR- Date of application for amendment: Atomic Power Station,Unit Nos. 2 and 36: Amendment revised the Technical April 18, 1995 3, York County, Pennsylvania Specifications. Brief description of amendment: The Date of application for amendments: Date of initial notice in Federal amendment allows the use of the ANSI/ November 14, 1994 as supplemented by Register: May 10, 1995 (60 FR 24911) ANS 5.1-1979 decay heat model for the letter dated April 10, 1995. The June 7, 1995, submittal provided post-loss of coolant accident Brief description of amendments: clarifying information that did not containment cooling analysis. These amendments relocate Nuclear change the initial proposed no Date of issuance: July 24, 1995 Review Board (NRB) review significant hazards consideration requirements, Independent Safety Effective date: As of the date of determination. The Commission’s Engineering Group (ISEG) requirements, issuance to be implemented related evaluation of the amendment is and certain review and audit immediately. contained in a Safety Evaluation dated requirements from the TS to the Peach July 24, 1995.No significant hazards Amendment No.: 84 Bottom Quality Assurance Program. consideration comments received: No Facility Operating License No. DPR- Date of issuance: July 25, 1995 Local Public Document Room 21. Amendment revised the license. Effective date: July 25, 1995 Amendments Nos.: 208 and 212 Location: Wiscasset Public Library, High Date of initial notice in Federal Facility Operating License Nos. DPR- Street, P.O. Box 367, Wiscasset, ME Register: May 10, 1995 (60 FR 24911). 04578. 44 and DPR-56: The amendments The Commission’s related evaluation of revised the Technical Specifications. Northeast Nuclear Energy Company, the amendment is contained in a Safety Date of initial notice in Federal Docket No. 50-245, Millstone Nuclear Evaluation dated July 24, 1995. No Register: December 21, 1994 (59 FR Power Station, Unit 1, New London significant hazards consideration 65822) The Commission’s related County, Connecticut comments received: No. evaluation of the amendments is Local Public Document Room contained in a Safety Evaluation dated Date of application for amendment: Location: Learning Resources Center, July 25, 1995.No significant hazards May 24, 1995 Three Rivers Community-Technical consideration comments received: No Brief description of amendment: The College, 574 New London Turnpike, Local Public Document Room amendment permits an individual who Norwich, CT 06360. Location: Government Publications does not have a current senior reactor Section, State Library of Pennsylvania, operator (SRO) license for Millstone Northeast Nuclear Energy Company, et (REGIONAL DEPOSITORY) Education Unit 1 to hold the Operations Manager al., Docket No. 50-423, Millstone Building, Walnut Street and position. In this case, the Operations Nuclear Power Station, Unit No. 3, New Commonwealth Avenue, Box 1601, Manager position would require the London County, Connecticut Harrisburg, Pennsylvania 17105. individual to have previously held an Date of application for amendment: SRO license at a boiling water reactor Public Service Electric & Gas Company, and the individual serving in the April 28, 1995 Docket No. 50-354, Hope Creek capacity of the Assistant Operations Brief description of amendment: The Generating Station, Salem County, New Manager to hold a current SRO license amendment revises the diesel generator Jersey for Millstone Unit 1. In addition, the fuel oil testing that is performed on new Date of application for amendment: amendment renumbers the applicable fuel prior to the addition of new fuel to July 27, 1994, as supplemented May 26, sections. the storage tank. July 10, and July 25, 1995 Date of issuance: July 24, 1995 Date of issuance: July 26, 1995 Brief description of amendment: This amendment revises the Allowed Out-of- Effective date: As of the date of Effective date: As of the date of Service Times (AOTs) for Inoperable issuance to be implemented within 60 issuance to be implemented within 60 Station Service Water System (SSWS) days. days. pumps, inoperable safety Auxiliaries Amendment No.: 83 Amendment No.: 118 Cooling System (SACS) pumps, and Facility Operating License No. DPR- Facility Operating License No. NPF- inoperable Emergency Diesel Generators 21. Amendment revised the Technical 49. Amendment revised the Technical (EDGs). In addition, this amendment Specifications. Specifications. also allows on-line maintenance of the EDGs. Date of initial notice in Federal Date of initial notice in Federal Date of issuance: August 1, 1995 Register: June 21, 1995 (60 FR 32370) Register: June 6, 1995 (60 FR 29881) Effective date: August 1, 1995 The Commission’s related evaluation of The Commission’s related evaluation of Amendment No.: 75 the amendment is contained in a Safety the amendment is contained in a Safety Facility Operating License No. NPF- Evaluation dated July 24, 1995.No Evaluation dated July 26, 1995. No 57: This amendment revised the significant hazards consideration significant hazards consideration Technical Specifications. comments received: No. comments received: No. Date of initial notice in Federal Local Public Document Room Local Public Document Room Register: August 31, 1994 (59 FR 45033) Location: Learning Resources Center, Location: Learning Resources Center, The supplemental letters did not change Three Rivers Community-Technical Three Rivers Community-Technical the original no significant hazards College, 574 New London Turnpike, College, 574 New London Turnpike, consideration determination nor the Norwich, CT 06360. Norwich, CT 06360. original Federal Register notice. The 42620 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Commission’s related evaluation of the hard seat (metal-to-metal) design. The Tennessee Valley Authority, Docket amendment is contained in a Safety valves would remain in the 10 CFR Part Nos. 50-327 and 50-328, Sequoyah Evaluation dated August 1, 1995.No 50, Appendix J, Type C leak rate test Nuclear Plant, Units 1 and 2, Hamilton significant hazards consideration program. County, Tennessee comments received: No Date of issuance: August 1, 1995 Date of application for amendments: Local Public Document Room Effective date: Unit 1, As of the date December 16, 1994; supplemented July Location: Pennsville Public Library, 190 of issuance, to be implemented prior to 19, 1995 (TS 94-06) S. Broadway, Pennsville, New Jersey restart following the twelfth refueling Brief description of amendments: The 08070. outage; Unit 2, As of the date of amendments replace the present Public Service Electric & Gas Company, issuance, to be implemented prior to Auxiliary Feedwater system Docket No. 50-354, Hope Creek restart following the current refueling Specification 3/4.7.1.2 with new Generating Station, Salem County, New outage. specifications that are modeled after the Jersey Amendment Nos.: 172 and 153 Westinghouse Standard Technical Specifications. Date of application for amendment: Facility Operating License Nos. DPR- Date of issuance: August 2, 1995 April 25, 1994, as supplemented July 70 and DPR-75. The amendments Effective date: August 2, 1995 24, 1995 revised the Technical Specifications. Amendment Nos.: 206 and 196 Brief description of amendment: This Date of initial notice in Federal Facility Operating License Nos. DPR- amendment eliminates the requirement Register: May 23, 1995 (60 FR 27342) 77 and DPR-79: Amendments revise the from the Hope Creek Technical The Commission’s related evaluation of technical specifications. Specifications to perform Type C leak the amendments is contained in a Safety Date of initial notice in Federal rate tests, in accordance with 10 CFR Evaluation dated August 1, 1995.No Register: February 1, 1995 (60 FR 6309) Part 50, Appendix J, of identified significant hazards consideration The Commission’s related evaluation of containment isolation valves that comments received: No the amendment is contained in a Safety penetrate the primary containment and Evaluation dated August 2, 1995.No Local Public Document Room terminate below the minimum water significant hazards consideration Location: Salem Free Public Library, level in the suppression chamber comments received: None 112 West Broadway, Salem, New Jersey (torus). The valves are still subject to Local Public Document Room 08079. testing in accordance with the American Location: Chattanooga-Hamilton County Society of Mechanical Engineers Boiler Southern California Edison Company, Library, 1101 Broad Street, Chattanooga, and Pressure Vessel Code. et al., Docket Nos. 50-361 and 50-362, Tennessee 37402. Date of issuance: August 1, 1995 San Onofre Nuclear Generating Station, Virginia Electric and Power Company, Effective date: As of the date of Unit Nos. 2 and 3, San Diego County, Docket Nos. 50-280 and 50-281, Surry issuance to be implemented within 60 California days. Power Station, Unit Nos. 1 and 2, Surry Amendment No.: 76 Date of application for amendments: County, Virginia. Facility Operating License No. NPF- August 26, 1994 Date of application for amendments: 57: This amendment revised the Brief description of amendments: November 29, 1994 Technical Specifications. These amendments revise Technical Brief description of amendments: Date of initial notice in Federal Specification 3/4.7.5, ‘‘Control Room These amendments allow the use of Register: June 8, 1994 (59 FR 29632) Emergency Air Cleanup System,’’ to ZIRLO, a new zirconium-based alloy, as The supplemental letter did not change provide an exception to Limiting a fuel cladding material. the original no significant hazards Condition for Operation 3.0.4 for Modes Date of issuance: July 27, 1995 consideration determination nor the 5 and 6 and for a defueled Effective date: July 27, 1995 original Federal Register notice.The configuration. These amendments also Amendment Nos.: 202 and 202 Commission’s related evaluation of the add the applicability statement ‘‘or Facility Operating License Nos. DPR- amendment is contained in a Safety during movement of irradiated fuel 32 and DPR-37: Amendments revised Evaluation dated August 1, 1995.No assemblies.’’ the Technical Specifications. significant hazards consideration Date of initial notice in Federal comments received: No Date of issuance: July 26, 1995 Register: January 4, 1995 (60 FR 508) Local Public Document Room Effective date: July 26, 1995 The Commission’s related evaluation of Location: Pennsville Public Library, 190 Amendment Nos.: Unit 2 - the amendment is contained in a Safety S. Broadway, Pennsville, New Jersey Amendment No. 123; Unit 3 - Evaluation dated July 27, 1995.No 08070. Amendment No. 112 significant hazards consideration Facility Operating License Nos. NPF- comments received: No Public Service Electric & Gas Company, Local Public Document Room Docket Nos. 50-272 and 50-311, Salem 10 and NPF-15: The amendments revised the Technical Specifications. Location: Swem Library, College of Nuclear Generating Station, Unit Nos. 1 William and Mary, Williamsburg, and 2, Salem County, New Jersey Date of initial notice in Federal Virginia 23185. Date of application for amendments: Register: November 9, 1994 (59 FR April 18, 1995 55891) The Commission’s related Notice Of Issuance Of Amendments to Brief description of amendments: The evaluation of the amendments is facility Operating Licenses And Final amendments delete the quarterly leak contained in a Safety Evaluation dated Determination Of No Significant rate test for the containment pressure- July 26, 1995.No significant hazards Hazards Consideration And vacuum relief valves that is currently consideration comments received: No. Opportunity For A Hearing (Exigent required because of the valves’ resilient Local Public Document Room Public Announcement Or Emergency seat material. The changes are being Location: Main Library, University of Circumstances) made to accommodate replacement of California, P. O. Box 19557, Irvine, During the period since publication of the resilient valve seat material with a California 92713. the last biweekly notice, the Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42621 Commission has issued the following of the holding and completion of any Licensing Board, designated by the amendments. The Commission has required hearing, where it has Commission or by the Chairman of the determined for each of these determined that no significant hazards Atomic Safety and Licensing Board amendments that the application for the consideration is involved. Panel, will rule on the request and/or amendment complies with the The Commission has applied the petition; and the Secretary or the standards and requirements of the standards of 10 CFR 50.92 and has made designated Atomic Safety and Licensing Atomic Energy Act of 1954, as amended a final determination that the Board will issue a notice of a hearing or (the Act), and the Commission’s rules amendment involves no significant an appropriate order. and regulations. The Commission has hazards consideration. The basis for this As required by 10 CFR 2.714, a made appropriate findings as required determination is contained in the petition for leave to intervene shall set by the Act and the Commission’s rules documents related to this action. forth with particularity the interest of and regulations in 10 CFR Chapter I, Accordingly, the amendments have the petitioner in the proceeding, and which are set forth in the license been issued and made effective as how that interest may be affected by the amendment. indicated. results of the proceeding. The petition Because of exigent or emergency Unless otherwise indicated, the should specifically explain the reasons circumstances associated with the date Commission has determined that these why intervention should be permitted the amendment was needed, there was amendments satisfy the criteria for with particular reference to the not time for the Commission to publish, categorical exclusion in accordance following factors: (1) the nature of the for public comment before issuance, its with 10 CFR 51.22. Therefore, pursuant petitioner’s right under the Act to be usual 30-day Notice of Consideration of to 10 CFR 51.22(b), no environmental made a party to the proceeding; (2) the Issuance of Amendment, Proposed No impact statement or environmental nature and extent of the petitioner’s Significant Hazards Consideration assessment need be prepared for these property, financial, or other interest in Determination, and Opportunity for a amendments. If the Commission has the proceeding; and (3) the possible Hearing. prepared an environmental assessment effect of any order which may be For exigent circumstances, the under the special circumstances entered in the proceeding on the Commission has either issued a Federal provision in 10 CFR 51.12(b) and has petitioner’s interest. The petition should Register notice providing opportunity made a determination based on that also identify the specific aspect(s) of the for public comment or has used local assessment, it is so indicated. subject matter of the proceeding as to media to provide notice to the public in For further details with respect to the which petitioner wishes to intervene. the area surrounding a licensee’s facility action see (1) the application for Any person who has filed a petition for of the licensee’s application and of the amendment, (2) the amendment to leave to intervene or who has been Commission’s proposed determination Facility Operating License, and (3) the admitted as a party may amend the of no significant hazards consideration. Commission’s related letter, Safety petition without requesting leave of the The Commission has provided a Evaluation and/or Environmental Board up to 15 days prior to the first reasonable opportunity for the public to Assessment, as indicated. All of these prehearing conference scheduled in the comment, using its best efforts to make items are available for public inspection proceeding, but such an amended available to the public means of at the Commission’s Public Document petition must satisfy the specificity communication for the public to Room, the Gelman Building, 2120 L requirements described above. respond quickly, and in the case of Street, NW., Washington, DC, and at the Not later than 15 days prior to the first telephone comments, the comments local public document room for the prehearing conference scheduled in the have been recorded or transcribed as particular facility involved. proceeding, a petitioner shall file a appropriate and the licensee has been The Commission is also offering an supplement to the petition to intervene informed of the public comments. opportunity for a hearing with respect to which must include a list of the In circumstances where failure to act the issuance of the amendment. By contentions which are sought to be in a timely way would have resulted, for September 15, 1995, the licensee may litigated in the matter. Each contention example, in derating or shutdown of a file a request for a hearing with respect must consist of a specific statement of nuclear power plant or in prevention of to issuance of the amendment to the the issue of law or fact to be raised or either resumption of operation or of subject facility operating license and controverted. In addition, the petitioner increase in power output up to the any person whose interest may be shall provide a brief explanation of the plant’s licensed power level, the affected by this proceeding and who bases of the contention and a concise Commission may not have had an wishes to participate as a party in the statement of the alleged facts or expert opportunity to provide for public proceeding must file a written request opinion which support the contention comment on its no significant hazards for a hearing and a petition for leave to and on which the petitioner intends to consideration determination. In such intervene. Requests for a hearing and a rely in proving the contention at the case, the license amendment has been petition for leave to intervene shall be hearing. The petitioner must also issued without opportunity for filed in accordance with the provide references to those specific comment. If there has been some time Commission’s ‘‘Rules of Practice for sources and documents of which the for public comment but less than 30 Domestic Licensing Proceedings’’ in 10 petitioner is aware and on which the days, the Commission may provide an CFR Part 2. Interested persons should petitioner intends to rely to establish opportunity for public comment. If consult a current copy of 10 CFR 2.714 those facts or expert opinion. Petitioner comments have been requested, it is so which is available at the Commission’s must provide sufficient information to stated. In either event, the State has Public Document Room, the Gelman show that a genuine dispute exists with been consulted by telephone whenever Building, 2120 L Street, NW., the applicant on a material issue of law possible. Washington, DC and at the local public or fact. Contentions shall be limited to Under its regulations, the Commission document room for the particular matters within the scope of the may issue and make an amendment facility involved. If a request for a amendment under consideration. The immediately effective, notwithstanding hearing or petition for leave to intervene contention must be one which, if the pendency before it of a request for is filed by the above date, the proven, would entitle the petitioner to a hearing from any person, in advance Commission or an Atomic Safety and relief. A petitioner who fails to file such 42622 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices a supplement which satisfies these Attachment 1. Attachment 1 requires deterministic approach. The pertinent requirements with respect to at least one the pump in the keepwarm system on comments received from the published contention will not be permitted to the emergency diesel generator to satisfy draft policy statement are reflected in participate as a party. the requirements of the American this final policy statement. This policy Those permitted to intervene become Society of Mechanical Engineers Code, statement will be implemented through parties to the proceeding, subject to any Section III, Class 3. the execution of the NRC’s PRA limitations in the order granting leave to Date of issuance: August 3, Implementation Plan. intervene, and have the opportunity to 1995I11Effective date: August 3, 1995 EFFECTIVE DATE: August 16, 1995. participate fully in the conduct of the Amendment No.: 88 ADDRESSES: The proposed policy hearing, including the opportunity to Facility Operating License No. NPF- statement and the comments received present evidence and cross-examine 42: The amendment revised the may be examined at: NRC Public witnesses. Since the Commission has operating license.Public comments Document Room, 2120 L Street, NW. made a final determination that the requested as to proposed no significant (Lower Level), Washington, DC. amendment involves no significant hazards consideration: No.The FOR FURTHER INFORMATION CONTACT: hazards consideration, if a hearing is Commission’s related evaluation of the requested, it will not stay the Anthony Hsia, Office of Nuclear Reactor amendment, finding of emergency Regulation, U.S. Nuclear Regulatory effectiveness of the amendment. Any circumstances, and final determination hearing held would take place while the Commission, Washington, DC 20555. of no significant hazards consideration Telephone (301) 415–1075. amendment is in effect. are contained in a Safety Evaluation A request for a hearing or a petition dated August 3, 1995. SUPPLEMENTARY INFORMATION: for leave to intervene must be filed with Local Public Document Room the Secretary of the Commission, U.S. I. Background. Location: Emporia State University, II. Summary of Public Comments and NRC Nuclear Regulatory Commission, William Allen White Library, 1200 Responses. Washington, DC 20555, Attention: Commercial Street, Emporia, Kansas III. Deterministic and Probabilistic Docketing and Services Branch, or may 66801 and Washburn University School Approaches to Regulation. be delivered to the Commission’s Public of Law Library, Topeka, Kansas 66621 IV. The Commission Policy. Document Room, the Gelman Building, Attorney for licensee: Jay Silberg, Esq., V. Availability of Documents. 2120 L Street, NW., Washington, DC, by Shaw, Pittman, Potts and Trowbridge, I. Background the above date. Where petitions are filed 2300 N Street, N.W., Washington, D.C. The NRC has generally regulated the during the last 10 days of the notice 20037 use of nuclear material based on period, it is requested that the petitioner NRC Project Director: William H. deterministic approaches. Deterministic promptly so inform the Commission by Bateman a toll-free telephone call to Western Dated at Rockville, Maryland, this 16th day approaches to regulation consider a set Union at 1-(800) 248-5100 (in Missouri of August 1995. of challenges to safety and determine 1-(800) 342-6700). The Western Union For The Nuclear Regulatory Commission how those challenges should be operator should be given Datagram Jack W. Roe, mitigated. A probabilistic approach to Identification Number N1023 and the Director, Division of Reactor Projects - III/ regulation enhances and extends this following message addressed to (Project IV Office of Nuclear Reactor Regulation traditional, deterministic approach, by: Director): petitioner’s name and [Doc. 95–20122 Filed 8–15–95; 8:45 am] (1) Allowing consideration of a broader set of potential challenges to safety, (2) telephone number, date petition was BILLING CODE 7590±01±F mailed, plant name, and publication providing a logical means for date and page number of this Federal prioritizing these challenges based on Register notice. A copy of the petition Use of Probabilistic Risk Assessment risk significance, and (3) allowing should also be sent to the Office of the Methods in Nuclear Regulatory consideration of a broader set of General Counsel, U.S. Nuclear Activities; Final Policy Statement resources to defend against these Regulatory Commission, Washington, challenges. DC 20555, and to the attorney for the AGENCY: Nuclear Regulatory Until the accident at Three Mile licensee. Commission. Island (TMI) in 1979, the Atomic Energy Nontimely filings of petitions for ACTION: Final policy statement. Commission (now the NRC), only used leave to intervene, amended petitions, probabilistic criteria in certain supplemental petitions and/or requests SUMMARY: This statement presents the specialized areas of licensing reviews. for a hearing will not be entertained policy that the Nuclear Regulatory For example, human-made hazards (e.g., absent a determination by the Commission (NRC) will follow in the nearby hazardous materials and aircraft) Commission, the presiding officer or the use of probabilistic risk assessment and natural hazards (e.g., tornadoes, Atomic Safety and Licensing Board that (PRA) methods in nuclear regulatory floods, and earthquakes) were typically the petition and/or request should be matters. The Commission believes that addressed in terms of probabilistic granted based upon a balancing of the an overall policy on the use of PRA arguments and initiating frequencies to factors specified in 10 CFR methods in nuclear regulatory activities assess site suitability. The Standard 2.714(a)(1)(i)-(v) and 2.714(d). should be established so that the many Review Plan (NUREG–0800) for potential applications of PRA can be licensing reactors and some of the Wolf Creek Nuclear Operating implemented in a consistent and Regulatory Guides supporting NUREG– Corporation, Docket No. 50-482, Wolf predictable manner that would promote 0800 provided review and evaluation Creek Generating Station, Coffey regulatory stability and efficiency. In guidance with respect to these County, Kansas addition, the Commission believes that probabilistic considerations. Date of application for amendment: the use of PRA technology in NRC The TMI accident substantially July 28, 1995 regulatory activities should be increased changed the character of the analysis of Brief description of amendment: This to the extent supported by the state-of- severe accidents worldwide. It led to a amendment deletes the portion of the-art in PRA methods and data and in substantial research program on severe License Condition 2.C.(1) that references a manner that complements the NRC’s accident phenomenology. In addition, Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42623 both major investigations of the accident of the purely deterministic method assessment (PRA) methods in nuclear (the Kemeny and Rogovin studies) currently specified in Appendix A to 10 regulatory activities should be recommended that PRA techniques be CFR Part 100. established and that the use of PRA used more widely to augment the Currently, the NRC is using PRA technology in NRC regulatory activities traditional nonprobabilistic methods of techniques to assess the safety should be increased. Comments from analyzing nuclear plant safety. In 1984, importance of operating reactor events the ACRS regarding the policy statement the NRC completed a study (NUREG– and is using these techniques as an as documented in a letter dated May 11, 1050) that addressed the state-of-the-art integral part of the design certification 1994, were incorporated. On August 19, in risk analysis techniques. review process for advanced reactor 1994, the staff forwarded SECY–94–219, In early 1991, the NRC published designs. In addition, the Individual ‘‘Proposed Agency-Wide NUREG–1150, ‘‘Severe Accident Risks: Plant Examination (IPE) program and Implementation Plan for Probabilistic An Assessment for Five U.S. Nuclear the Individual Plant Examination— Risk Assessment (PRA),’’ to the Power Plants.’’ In NUREG–1150, the External Events (IPEEE) program (an Commission. On August 30, 1994, the NRC used improved PRA techniques to effort resulting from the implementation staff discussed the PRA policy statement assess the risk associated with five of the Commission’s ‘‘Policy Statement and the PRA implementation plan in a nuclear power plants. This study was a on Severe Reactor Accidents Regarding public meeting with the Commission. significant turning point in the use of Future Designs and Existing Plants’’) On September 13 and October 4, 1994, risk-based concepts in the regulatory have resulted in commercial reactor the Secretary issued two staff process and enabled the Commission to licensees using risk-assessment methods requirements memoranda (SRMs) greatly improve its methods for to identify any vulnerabilities needing providing Commission guidance assessing containment performance after attention. regarding the draft policy statement. In core damage and accident progression. The Commission has been developing these SRMs, the Commission directed The methods developed for and results performance assessment methods for the staff to revise the proposed PRA from these studies provided a valuable low-level and high-level waste since the policy statement, publish the policy foundation in quantitative risk mid-1970s and these activities statement for public comment in the techniques. intensified using performance Federal Register, and conduct a public PRA methods have been applied assessments techniques in the late 1980s workshop on the PRA implementation successfully in several regulatory and early 1990s. This has involved the plan. activities and have proved to be a development of conceptual models and As directed by the Commission, the valuable complement to deterministic computer codes to model the disposal of staff conducted a public workshop on engineering approaches. This waste. Because waste-disposal systems December 2, 1994, to discuss the PRA application of PRA represents an are passive, certain analysis methods implementation plan. The purpose of extension and enhancement of used for active systems in PRA studies the workshop was to inform the public traditional regulation rather than a for power reactors had to be adapted to of NRC activities related to increasing separate and different technology. provide scenario analysis for the the use of PRA methods and techniques Several recent Commission policies or performance assessment of the potential in regulatory applications and to receive regulations have been based, in part, on geologic repository at Yucca Mountain, public comments on these activities. PRA methods and insights. These Nevada. In regard to high-level waste, After the staff incorporated the include the Backfit Rule (§ 50.109, the NRC staff participates in a variety of comments from the SRMs, the proposed ‘‘Backfitting’’), the Policy Statement on international activities (e.g., the policy statement ‘‘Use of Probabilistic ‘‘Safety Goals for the Operation of Performance Assessment Advisory Risk Assessment Methods in Nuclear Nuclear Power Plants,’’ (51 FR 30028; Group of the Organization for Economic Regulatory Activities’’ was published in August 21, 1986), the Commission’s Cooperation and Development, Nuclear the Federal Register on December 8, ‘‘Policy Statement on Severe Reactor Energy Agency) to ensure that 1994 (59 FR 63389). The public Accidents Regarding Future Designs and consistent performance assessment comment period expired on February 7, Existing Plants’’ (50 FR 32138; August 8, methods are used to the degree 1995. 1985), and the Commission’s ‘‘Final appropriate. Policy Statement on Technical The Commission believes that an II. Summary of Public Comments and Specifications Improvement for Nuclear overall policy on the use of PRA in NRC Responses Power Reactors’’ (58 FR 39132; July 22, nuclear regulatory activities should be In January and February 1995, the 1993). PRA methods also were used established so that the many potential NRC received 17 letters commenting on effectively during the anticipated applications of PRA methodology can be the proposed policy statement on ‘‘Use transient without scram (ATWS) and implemented in a consistent and of Probabilistic Risk Assessment station blackout (SBO) rulemaking, and predictable manner that promotes Methods in Nuclear Regulatory supported the generic issue regulatory stability and efficiency and Activities’’. These comments were from prioritization and resolution process. enhances safety. In May 1994, the NRC the following organizations: Six Additional benefits have been found in staff forwarded a draft PRA policy utilities—PECO Energy Company, the use of risk-based inspection guides statement to the Advisory Committee on Detroit Edison, Washington Public to focus NRC inspector efforts and make Reactor Safeguards (ACRS) for review Power Supply System, Carolina Power more efficient use of NRC inspection and briefed ACRS on the same subject. and Light Company, Virginia Power resources. Probabilistic analyses were On August 18, 1994, the NRC staff Company, and Centerior Energy; three extensively used in the development of proposed a PRA policy statement to the State regulatory agencies—State of the recently proposed rule change to Commission in SECY–94–218, Illinois Department of Nuclear Safety, reactor siting criteria in 10 CFR Part 100 ‘‘Proposed Policy Statement on the Use State of New Jersey Department of (59 FR 52255; October 17, 1994). The of Probabilistic Risk Assessment Environmental Protection, State of proposed rule change invoked the use of Methods in Nuclear Regulatory Nevada Agency for Nuclear Projects; a probabilistic approach to estimate the Activities.’’ In that Commission paper, two industry groups—Nuclear Energy Safe Shutdown Earthquake Ground the staff proposed that an overall policy Institute and Westinghouse Owners Motion for a nuclear reactor site, instead on the use of probabilistic risk Group; two engineering firms—PLG, 42624 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Inc. and ICF Kaiser Engineers, Inc.; The RRG recommendations to reduce credit for plant specific information to University of California at Los Angeles; the regulatory burden included the justify relief from NRC imposed action. Ohio Citizens For Responsible Energy; suggestion to use more risk-based The Commission believes that the use of Winston and Strawn, Counsel to the approaches in quality assurance, the plant specific PRA in the backfit Nuclear Utility Backfitting and Reform inservice inspection and testing, and the analysis to evaluate whether there is a Group; and the Department of Energy. concept of a PRA plan. The RRG substantial increase in the overall Copies of the letters may be examined recommendations were documented in protection or to justify relief from NRC at the NRC Public Document Room at SECY–94–003. To better focus the imposed action is acceptable when 2120 L Street., NW. (Lower Level), NRC’s effort on the PRA related combined with other relevant Washington, DC. activities recommended by the RRG, the deterministic considerations, as appropriate. General Comments PRA Working Group, and the Regulatory Analysis Steering Group, the PRA Regarding the use of safety goals, one Twelve commenters explicitly implementation plan was developed in commenter recommended retention of supported the basic tenet of the policy 1994. The implementation plan the language in SECY–94–218 to effect to increase the use of PRA technology in included a task to develop guidelines that safety goals could be used in NRC’s regulatory activities. The other for determining when it is practical to granting relief from unnecessary commenters did not object to the policy use PRA technology and results in requirements. Another commenter statement but provided regulatory activities. The NRC has had recommended that the safety goals recommendations for the NRC to modify discussions with volunteer licensees should be used as a minimum goal, and improve the policy statement and/ regarding the pilot applications of risk- rather than the maximum level of safety. or the PRA implementation plan. Five based regulatory initiatives. Results As stated in the proposed PRA policy commenters indicated that they agreed from the pilot applications will be statement published on December 8, with the NEI comments on the proposed incorporated in the NRC’s guidance for 1994, the Commission’s safety goals are PRA policy statement. The NRC staff PRA applications in regulatory ‘‘* * * intended to be generically has reviewed the comments and activities. A number of current applied by the NRC as opposed to plant summarized them in the following regulatory requirements are being specific applications,’’ and ‘‘* * * to be areas. The staff response to the considered as part of the PRA used with appropriate consideration of comments are also included in this final implementation plan to determine if uncertainties in making regulatory policy statement. alternative risk-based approaches are judgements in the context of backfitting Use of PRA in Regulatory Decisions practical. Over time, the Commission new generic requirements on nuclear power plant licensees.’’ In the Staff Several comments dealt with the would expect some streamlining and refocusing of its rules and regulations as Requirement Memorandum (SRM) dated scope of the PRA applications (where June 15, 1990, regarding the can PRA be used) and the part of this process. The Commission has implemented a continuing implementation of safety goals, the implementation of the policy statement Commission directed that ‘‘Safety goals (how can PRA be used). regulatory improvement program which is responsive to the commenter’s are to be used in a more generic sense One commenter felt that neither the and not to make specific licensing policy statement nor the PRA recommendation of a systematic examination of marginal regulatory decisions.’’ Therefore, at this time, the implementation plan provided NRC would use the safety goals in requirements. consistent decision criteria for accepting making regulatory decisions regarding PRA results as part of the justification Another commenter recommended backfitting new generic requirements for licensing decisions. The commenter that the policy statement be amended to but not to make specific licensing was concerned that the short term effect state that when backfitting analyses are decisions including granting relief from of the policy statement would likely be performed, mean risk levels be the unnecessary requirements. Any changes an increased burden on the licensees. exclusive basis of regulatory decision- to the safety goal policy are outside the For the long term, the commenter making when comparisons are made scope of the PRA policy statement and recommended a systematic review of against the $1000/person-rem criterion. would, therefore, need to be pursued the rules and regulations to identify The Commission does not feel this independently. opportunities for elimination of policy statement needs to address the Referring to paragraphs 1 and 2 of the unnecessary regulations. The proposed issue regarding the use of mean risk proposed policy statement, a commenter policy statement directed the staff to use level as the exclusive basis for applying suggested that it should include the PRA and associated analyses, where the $1000/person-rem criterion because application to NRC enforcement appropriate, as part of the justification the Commission’s safety goal policy decisions, including the severity levels. for licensing decisions. The PRA statement has already spoken to the use As noted in NUREG–1525, ‘‘Assessment implementation plan describes how the of mean values of risk in connection of the NRC Enforcement Program,’’ the stated policy is to be implemented. with the cost-benefit analyses. Commission does not support defining Appropriate decision criteria will be Furthermore, this issue is addressed in severity levels using PRA results. The developed and documented as part of the proposed Revision 2 of NUREG/BR– NRC’s basis for severity level the PRA implementation plan. The 0058, ‘‘Regulatory Analysis Guidelines categorization clearly is safety Commission has already performed a of the U. S. Nuclear Regulatory significance. In judging safety systematic review of the many current Commission, Draft Report for significance, the NRC considers (1) rules and regulations to identify Comment.’’ This commenter also Actual consequences, (2) potential opportunities for the elimination of recommended that the policy statement consequences, and (3) regulatory unnecessary regulations. In 1993, the should direct the staff to use the significance. It is recognized that PRA NRC established the Regulatory Review relevant plant specific PRA in assessing results may be helpful to provide risk Group (RRG) to conduct a structured the need for any backfitting action at insights on the likelihood and review of power reactor regulations with that plant. For generic backfits, this significance of potential consequences. special attention on the opportunity to commenter recommended that the The NRC plans to continue to consider reduce unnecessary regulatory burdens. policy should allow licensees to take the use of PRA results where relevant as Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42625 part of the integrated process conformance to detailed PRA standards concepts. The Commission agrees with considering all facets surrounding the would not be desirable, and this concept as the proposed policy violation in support of enforcement recommended that flexibility in PRA statement stated that ‘‘The probabilistic decisions. models should be allowed. The approach to regulation is, therefore, Several commenters discussed the Commission issued Generic Letter (GL) considered an extension and role of PRA in reducing the unnecessary 88–20 with the primary purpose of enhancement of traditional regulation conservatisms in regulations and to generating IPEs to identify severe by considering risk in a more coherent support additional regulatory accident vulnerabilities. The PRAs and complete manner.’’ The requirements. One commenter’s concern which supported the IPE efforts may be Commission believes that the PRA was that the proposed policy statement useful for other applications, however, method plays a complementary role in appeared to be biased in the direction of this would have to be evaluated on a relationship to the deterministic using PRA to support deregulation. case-by-case basis under well-defined method. This was reflected in the policy Another commenter was concerned objectives. After the Commission statement that ‘‘Deterministic-based with the implication that PRA could briefing on the IPE program, the regulations have been successful in result in an additional layer of Commission recognized, as stated in the protecting the public health and safety regulation. The policy statement SRM dated April 28, 1995, that current and PRA techniques are most valuable addressed the need to remove industry IPE results do not provide a when they serve to focus the traditional, unnecessary conservatism associated complete basis for supporting risk-based deterministic-based, regulations and with regulatory requirements. It is not regulatory decision-making. The SRM support the defense-in-depth the Commission’s intent to replace suggested that ‘‘* * * the industry philosophy.’’ traditional defense-in-depth concepts should, in coordination with the staff, One commenter recommended that with PRA, but rather to exploit the use initiate the actions necessary to develop the most efficient use of NRC resources of PRA insights to further understand PRAs that are acceptable for risk-based should be to enhance or improve the the risk and improve risk-effective regulatory use (i.e., standardized existing methods, but not to develop safety decision-making in regulatory methods, assumptions, level of detail).’’ new ones. The Commission’s principal matters. In doing so, the Commission is The industry is encouraged to formulate focus will be on improving the existing focusing its attention and resource a general approach for performing PRAs methods, but some new methods allocation to areas of true safety acceptable for regulatory use. This development may also be useful. significance. Where appropriate, PRA approach should include guidance on Another commenter recommended should be used to support additional standardizing approaches for use of PRA that the PRA policy statement should regulatory requirements, according to 10 techniques for specific applications, seek a uniform and standard application CFR 50.109 (Backfit Rule). narrowing some of the variability in the of PRA within the NRC, and begin with One commenter recommended that IPE results, and strengthening its a commitment to ensure that PRA is the policy statement should explicitly usefulness in the regulatory and safety used consistently and is not ignored state that the use of PRA by licensees in decision-making process. The when required by those unfamiliar or regulatory matters is at the discretion of Commission is currently considering the reluctant to apply it. The Commission’s each licensee. The commenter also quality level and scope of assessment PRA policy statement specifically believed that the NRC should not necessary to justify use of specific PRAs emphasizes the need for consistent and prescribe how and when PRA methods for specific regulatory applications. The predictable application of PRA within should be used by licensees in Commission will require PRA quality the Commission to promote regulatory regulatory matters, but should address commensurate with the proposed stability and efficiency. The the potential impact the expanded use application. Commission believes that this goal can of PRA may have on regulatory be achieved through the implementation interactions with licensees. The PRA Methodology plan which will ensure that the Commission’s PRA policy statement is One commenter agreed with the NRC appropriate use of PRA is implemented intended only to encourage the NRC that the probabilistic approach should by the staff. staff and industry to use probabilistic be used to complement the Schedule of PRA Activities risk assessment methods in regulatory deterministic approach and that PRA matters. It is not intended to prescribe numbers alone should not be used to Two letters commented that the or require any of the many potential make regulatory decisions. The activities discussed in the PRA PRA applications. Any requirements for commenter also believed that implementation plan appeared to be on licensees to perform PRA analyses uncertainties should not prevent or a protracted schedule and would be expected to occur through delay the implementation of PRA in recommended that priority and urgency formal rulemaking. regulatory activities. The Commission be stressed and reflected in the plan, One commenter’s concern was that understands that uncertainties exist in including the use of PRA and PRA there was a wide range of applications any regulatory approach. These insights in the near term. The for which PRA was being applied uncertainties are derived from Commission’s PRA implementation without consistency and standards. This knowledge limitations that are not plan showed the target completion dates commenter urged the NRC to insist on created by PRA, but are often exposed for all the tasks. The Commission fully quality PRAs commensurate with the by it. The PRA implementation plan has realizes the need for near term PRA intended applications and to develop provided a framework to assess the applications and has included them in standards which require rigorous and significance of potential uncertainties the implementation plan wherever living PRAs by regulation for nuclear and to develop a strategy to possible. These milestones include power plant applications. The accommodate them in the regulatory examples such as pilot applications for commenter also questioned whether the process. risk-based initiatives and transfer of IPE PRA analyses for the IPE may be used One commenter stated that insights to NRC staff members for use in for other applications because of a lack probabilistic analysis is simply an regulatory matters in the near term. The of PRA standards. Another commenter extension of deterministic analysis. Commission plans to periodically expressed the concern that strict They are not separate and distinctive review the progress of the ‘‘living’’ PRA 42626 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices implementation plan and, as foreign regulators, EPA, DOE, and other data collection requirements when they appropriate, to adjust the priorities. Federal personnel). This has included are published for comment. One letter commented that the NRC training in the PRA area for a limited Radiation Medicine review and approval of licensing actions number of State regulators. In courses that are based on PRA insights should that were under-subscribed by NRC One commenter recommended that not be contingent upon the schedule for personnel, many had sufficient available NRC should abandon the use of the implementation of the plan. The plan space to allow acceptance of outside linear hypothesis in estimating should not be an impediment to moving personnel. Logistics for these radiation-induced cancer and mutation forward toward the goals outlined in the arrangements are handled by the NRC risk. The commenter further stated that policy statement. The Commission’s office responsible for interactions with the NRC’s PRA implementation plan implementation plan had been the outside group (i.e., Office of State refers to risk analysis to analyze nuclear developed to effectively and Programs for States or Office of medical devices and that, ‘‘* * * there expeditiously establish a framework for International Programs for foreign are no nuclear medicine devices that increasing the use of PRA technology personnel). NRC training currently is have risk to be analyzed.’’ inside the Commission. Since it is a not available to NRC licensees. Because The International Commission on ‘‘living’’ plan, new tasks could be added of recent budgetary constraints, as Radiation Protection, the United and existing tasks could be modified, as described in SECY–95–017 Nations Scientific Committee on the the plan progresses. The Commission ‘‘Reinventing NRC Fee Policies,’’ full Effects of Atomic Radiation, and the agrees that the plan should not be an cost reimbursements from States for National Academy of Sciences’ impediment to moving forward to NRC training is expected in future years. Committee on the Biological Effects of achieve the goals stated in the policy. However, NRC will continue its space- Ionizing Radiation believe that, in the The Commission welcomes risk-based available policy for all courses, absence of convincing evidence that regulatory initiatives from the industry including PRA courses. there is a dose threshold or that low as the plan is being carried out and will levels of radiation are beneficial, the adjust resources, as appropriate. Data Collection assumptions regarding a linear One commenter asked how the NRC Several commenters expressed nonthreshold dose-effect model for will propose to control the utilities’ concerns about the potential data cancers and genetic effects and the application of PRA and the timeframe to collection implications of the proposed existence of thresholds only for certain implement the consistent use of PRA PRA policy. They are summarized as nonstochastic effects remain appropriate within the NRC. The Commission’s PRA follows: for formulating radiation protection implementation plan describes the One commenter stated that the desire standards. NRC follows their guidelines. activities and schedule to effect a to collect detailed data related to Although some data suggest the possible coherent and consistent PRA equipment and human reliability should use of other models, there are still many application within the agency. As the not prohibit the use of PRA for scientists who believe there are plan is implemented, the NRC expects applications or support for decision- insufficient data to deviate from the to interact with licensees and publish making. The collection of plant-specific ‘‘linear’’ hypothesis. The issue of guidelines for the application of PRA in data must be commensurate with the realism involved in continuing the use their submittal to the NRC. benefit that specific information might of the ‘‘linear’’ hypothesis is expected to have on the quality or insight from the PRA Training be a matter of debate over the coming PRA. Plant-specific information may not years. Two commenters advocated PRA be statistically significant. Furthermore, The NRC regulates radiation training for appropriate NRC and requiring all plants to collect the same medicine, which includes both nuclear licensee staff as soon as possible to information without a focus based on medicine and radiation oncology. The ensure proper application of PRA in plant performance, is counter to the intent of the policy statement regulatory matters. A PRA training concept behind the Maintenance Rule. concerning medical applications is to program has been in place for the NRC Another commenter stated that the refer to medical devices containing staff for a number of years. As part of discussion of uncertainties in Part II.(B) byproduct material, in particular, those the PRA implementation plan, the of the proposed policy statement is used in radiation oncology. The term existing training program is being appropriate. However, in the ‘‘nuclear medical device’’ was revised in enhanced. The existing PRA training implementation of this part of the the recent status update on the PRA curriculum serves as the basis on which policy, care must be exercised to implementation plan (SECY–95–079) to build a more comprehensive staff restrain from requiring or implying the and clarified in the policy statement. PRA training program. Six new courses need for massive plant-specific have been incorporated in the training component level failure rate data Nuclear Waste program to address the short term needs collection programs. Several One commenter recommended that from the increasing use of PRA in commenters expressed concerns that a the NRC expand its use of PRA to other regulatory activities. As a result of the new or expanded nuclear power plant areas such as radiological dose PRA implementation plan, the number experience data collection rulemaking assessment during the site of NRC staff participating in the training could further burden the licensees and decommissioning process. The NRC program has increased significantly the resulting benefit may well be intends to consider expansion of PRA during the first half of fiscal year 1995. marginal. techniques into additional areas with One commenter recommended that The Commission agrees that it should the proviso that the application of these NRC’s PRA training should be extended make every effort to avoid any techniques to these facilities should be to State agencies that can justify unnecessary regulatory burdens in tempered according to the complexity of attendance. Historically, attendance at connection with collecting reliability the disposal system, its uncertainties NRC courses has been routinely and availability data. Specific comments and the estimated risk. available on a space-available, no-cost on the types of data that should or One commenter provided comments basis to State personnel as well as for should not be collected will be on several aspects of the proposed other non-NRC personnel (such as addressed in connection with proposed policy statement in the nuclear waste Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42627 area. Regarding the scope of the policy faulting at Yucca Mountain. mitigating the consequences of those statement, the commenter Furthermore, the Commission does not design-basis events to protect the public recommended that the policy statement interpret 10 CFR Part 60 so as to health and safety. be amended to include risk assessment preclude the use of PRA as a basis for The deterministic approach contains applications other than power reactors. licensing a proposed repository at Yucca implied elements of probability The Commission agrees with that Mountain. The commenter did not agree (qualitative risk considerations), from comment. The use of PRA should be with NRC’s characterization of the waste the selection of accidents to be analyzed considered for those applications that disposal system as passive and believed as design-basis accidents (e.g., reactor involve projecting system performance that, at this time, there is no alternative vessel rupture is considered too for very long time periods, such as to the use of deterministic techniques improbable to be included) to the hundreds or thousands of years. The for waste disposal application because requirements for emergency core policy statement stated that the use of PRA techniques are in the embryonic cooling (e.g., safety train redundancy PRA technology should be increased in stage. The ‘‘Fault Tree Handbook’’ and protection against single failure). all regulatory matters. Another (NUREG–0492, January 1981) refers to The approach by the Commission for recommendation was to temper the ‘‘passive’’ as a ‘‘* * * mechanism (e.g., the use of performance assessment to commitment to PRA to reflect inherent wire) whereby the output of one ‘active’ implement its regulations for disposal of risk differences associated with different component becomes the input to a radioactive nuclear waste (10 CFR Part waste management facilities. Because of second ‘active’ component.’’ ‘‘Passive’’ 60 for high-level waste disposal and 10 inherent differences in the regulations is generally used for ‘‘engineered’’ CFR Part 61 for low-level waste and practices associated with the components that have no moving parts. disposal) also contains implied licensing of waste management Since there are no ‘‘engineered’’ elements of probability. The results of facilities, the application of performance components that are ‘‘active’’ (or the numerous calculations obtained assessment (PRA is called performance causing motion in another engineered from a performance assessment for a assessment for waste management component) in the post-closure phase of given performance measure and for a systems) techniques to these facilities the potential geologic repository at particular type of facility (e.g., a should be tempered according to the Yucca Mountain, the NRC has applied spectrum of values for ground-water complexity of the disposal system, the traditional PRA concept to the waste travel time or individual dose) are uncertainties surrounding the system disposal system and referred to it as a expressed in terms of statistical performance, and the estimated risk. ‘‘passive system.’’ The remanded 1985 distributions that express the The Commission also agrees with the EPA Standard, 40 CFR 190, required a probability that a given measure of comments regarding uncertainties in probabilistic analysis for a geologic performance will be attained. When this projecting repository performance and repository. The NRC has developed this distribution is compared to the the use of technical expert judgment in type of analysis since 1970 and has appropriate deterministic standard in assessing these uncertainties, but feels attained a state of maturity for these the Commission’s regulations, the the PRA policy statement is not the analyses that is accepted by probability of not exceeding the appropriate forum to discuss these items internationally-known organizations standard can be obtained from the part applicable only to waste management. (e.g., Organization for Economic of the distribution that falls below this Regarding the suggestion of describing Cooperation and Development (OECD)/ standard. PRA addresses a broad spectrum of the reasons for using the PRA and the Nuclear Energy Agency (NEA)). initiating events by assessing the event application of PRA in regulatory A number of editorial comments were frequency. Mitigating system reliability activities, the Commission included the received on the role of PRAs in the is then assessed, including the potential reasons for using PRA in Section III of licensing of waste disposal facilities. for multiple and common cause failures. the policy statement and added a The NRC has incorporated the The treatment therefore goes beyond the description of the impact of PRA on the appropriate comments in this final PRA single failure requirements in the rule changes to 10 CFR Part 100 in the policy statement. background discussion. deterministic approach. The Another commenter expressed III. Deterministic and Probabilistic probabilistic approach to regulation is, concern that the proposed policy Approaches to Regulation therefore, considered an extension and statement inappropriately encouraged enhancement of traditional regulation (A) Extension and Enhancement of the use of PRA in the licensing and by considering risk in a more coherent Traditional Regulation regulation of nuclear waste disposal and complete manner. A natural result facilities. The Commission disagrees The NRC established its regulatory of the increased use of PRA methods with this comment since PRA requirements to ensure that a licensed and techniques would be the focusing of techniques are acceptable in a facility is designed, constructed, and regulations on those items most performance assessment for the geologic operated without undue risk to the important to safety. Where appropriate, repository, but are only part of the health and safety of the public. These PRA can be used to eliminate requirements for a license. The requirements are largely based on unnecessary conservatism and to commenter was also concerned that any deterministic engineering criteria. support additional regulatory new regulations proposed by the Simply stated this deterministic requirements. Deterministic-based Environmental Protection Agency (EPA) approach establishes requirements for regulations have been successful in and the NRC’s 10 CFR Part 60 for a high- engineering margin and for quality protecting the public health and safety level waste (HLW) disposal facility assurance in design, manufacture, and and PRA techniques are most valuable proposed for Yucca Mountain will construction. In addition, it assumes when they serve to focus the traditional, probably prohibit use of PRA for these that adverse conditions can exist (e.g., deterministic-based, regulations and facilities because of Type I faults at this equipment failures and human errors) support the defense-in-depth site. The Commission anticipates that and establishes a specific set of design- philosophy. In addition, PRA both probabilistic and deterministic basis events. It then requires that the techniques are appropriately used when hazard assessment methodologies will licensed facility design include safety considering regulations defined in be applied to assess the significance of systems capable of preventing and/or probabilistic terms, and for estimating 42628 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices safety of systems with very large reliability are currently being releases. Such barrier principles are uncertainties such as waste disposal developed. mandated by the Nuclear Waste Policy systems (Note that PRA is called It is important to note that not all of Act of 1982, which provides performance assessment for these waste the Commission’s regulatory activities redundancy for a geologic repository to disposal systems). lend themselves to a risk analysis contain and isolate nuclear waste from Beyond its deterministic criteria, the approach that utilizes fault tree the human environment. methods. In general, a fault tree method NRC has formulated guidance, as in the IV. The Commission Policy safety goal policy statement, that is best suited for power reactor events utilizes quantitative, probabilistic risk that typically involve complex systems. Although PRA methods and measures. The safety goal policy Events associated with industrial and information have thus far been used statement establishes top-level medical uses of nuclear materials successfully in nuclear regulatory objectives to help assure safe operation generally involve a simple system, activities, there have been concerns that of nuclear power plants. The safety involve radiation overexposures, and PRA methods are not consistently goals are intended to be applied result from human error, not equipment applied throughout the agency, that generically and are not for plant-specific failure. Because of the characteristics of sufficient agency PRA/statistics applications. For the purpose of medical and industrial events, as expertise is not available, and that the implementation of the safety goals, discussed above, analysis of these Commission is not deriving full benefit subsidiary numerical objectives on core events using relatively simple from the large agency and industry investment in the developed risk damage frequency and containment techniques can yield meaningful results. assessment methods. Therefore, the performance have been established. The Power reactor events, however, Commission believes that an overall safety goals provide guidance on where generally involve complex systems and policy on the use of PRA in nuclear plant risk is sufficiently low that further human interactions, can potentially regulatory activities should be regulatory action is not necessary. Also, involve more than one adverse established so that the many potential as noted above, the Commission has consequence, and often result from applications of PRA can be been using PRA in performing equipment failures. Therefore, power implemented in a consistent and regulatory analysis for the proposed reactor events can require greater use of predictable manner that promotes backfit of cost-beneficial safety more complex risk analysis techniques, regulatory stability and efficiency. This improvements at operating reactors (as such as fault tree analysis, to yield meaningful insights. PRA methods need policy statement sets forth the required by 10 CFR 50.109) for a to be adapted for waste disposal systems Commission’s intention to encourage number of years. because they are passive systems the use of PRA and to expand the scope (B) Uncertainties and Limitations of subjected to interlocking natural and of PRA applications in all nuclear Deterministic and Probabilistic man-made processes and events that are regulatory matters to the extent Approaches dominated by complex phenomenology. supported by the state-of-the-art in Given the dissimilarities in the nature terms of methods and data. The treatment of uncertainties is an and consequences of the use of nuclear Implementation of the policy statement important issue for regulatory decisions. materials in reactors, industrial will improve the regulatory process in Uncertainties exist in any regulatory situations, waste disposal facilities, and three areas: Foremost, through safety approach and these uncertainties are medical applications, the Commission decision making enhanced by the use of derived from knowledge limitations. recognizes that a single approach for PRA insights; through more efficient use These uncertainties and limitations incorporating risk analyses into the of agency resources; and through a existed during the development of regulatory process is not appropriate. reduction in unnecessary burdens on deterministic regulations and attempts However, PRA methods and insights licensees. were made to accommodate these will be broadly applied to ensure that Therefore, the Commission adopts the limitations by imposing prescriptive, the best use is made of available following policy statement regarding the and what was hoped to be, conservative techniques to foster consistency in NRC expanded NRC use of PRA: regulatory requirements. A probabilistic risk-based decision-making. (1) The use of PRA technology should approach has exposed some of these be increased in all regulatory matters to limitations and provided a framework to (C) Defense-in-Depth Philosophy the extent supported by the state-of-the- assess their significance and assist in In the defense-in-depth philosophy, art in PRA methods and data and in a developing a strategy to accommodate the Commission recognizes that manner that complements the NRC’s them in the regulatory process. complete reliance for safety cannot be deterministic approach and supports the Human performance is an important placed on any single element of the NRC’s traditional defense-in-depth consideration in both deterministic and design, maintenance, or operation of a philosophy. probabilistic approaches. Assessing the nuclear power plant. Thus, the (2) PRA and associated analyses (e.g., influence of errors of commission and expanded use of PRA technology will sensitivity studies, uncertainty analyses, organizational and management issues continue to support the NRC’s defense- and importance measures) should be on human reliability is an example that in-depth philosophy by allowing used in regulatory matters, where illustrates where current PRA methods quantification of the levels of protection practical within the bounds of the state- are not fully developed. While this lack and by helping to identify and address of-the-art, to reduce unnecessary of knowledge contributes to the weaknesses or overly conservative conservatism associated with current uncertainty in estimated risks, the PRA regulatory requirements applicable to regulatory requirements, regulatory framework offers a powerful tool for the nuclear industry. Defense-in-depth guides, license commitments, and staff logically and systematically evaluating is a philosophy used by NRC to provide practices. Where appropriate, PRA the sensitivity and importance to risk of redundancy for facilities with ‘‘active’’ should be used to support the proposal these uncertainties. Improved PRA safety systems, e.g., a commercial for additional regulatory requirements techniques and models to address errors nuclear power, as well as the in accordance with 10 CFR 50.109 of commission and the influence of philosophy of a multiple-barrier (Backfit Rule). Appropriate procedures organizational factors on human approach against fission product for including PRA in the process for Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42629 changing regulatory requirements The Commission also recognizes, and Performance Testing of Electronic should be developed and followed. It is, encourages, continuation of industry Personnel Dosimeters: Availability of course, understood that the intent of initiatives to improve PRA methods, The Nuclear Regulatory Commission this policy is that existing rules and applications and data collection to has issued a draft report NUREG/CR– regulations shall be complied with support increased use of PRA 6354 entitled ‘‘Performance Testing of unless these rules and regulations are techniques in regulatory activities. revised. Electronic Personnel Dosimeters’’ for V. Availability of Documents review and comment. (3) PRA evaluations in support of The draft report discusses the use and regulatory decisions should be as Copies of documents cited in this applications of Electronic Personnel realistic as practicable and appropriate section are available for inspection and/ Dosimeters (EPDs) for incremental dose supporting data should be publicly or for reproduction for a fee in the NRC control and use as primary dosimeters available for review. Public Document Room, 2120 L Street, for determination of the official dose for (4) The Commission’s safety goals for NW, (Lower Level), Washington, DC individuals. EPDs have been used as nuclear power plants and subsidiary 20037. Copies of NUREGs cited in this secondary or supplemental dosimeters numerical objectives are to be used with document may be purchased from the for several years and presently being appropriate consideration of Superintendent of Documents, U.S. considered for use as primary uncertainties in making regulatory Government Printing Office, P.O. Box dosimeters in place of the commonly judgments on the need for proposing used film badges and and backfitting new generic 37082, Washington, DC 20013–7082. Copies are also available for purchase thermoluminescent dosimeters (TLDs). requirements on nuclear power plant The authors of this report feel that licensees. from the National Technical Information Service, 5285 Port Royal Road, consideration of EPDs as primary Policy Implications Springfield, VA 22161. dosimeters is currently in the evolutionary phase, and point out that There are several important regulatory In addition, copies of (1) SECY–94– the EPD is not only a dosimeter, but in or resource implications that follow 218, ‘‘Proposed Policy Statement on the addition is an electronic device, subject from the goal of increased use of PRA Use of Probabilistic Risk Assessment to radio frequency, microwave, and techniques in regulatory activities. First, Methods in Nuclear Regulatory electric fields and various the NRC staff, licensees, license Activities,’’ (2) SECY–94–219, environmental conditions. The authors applicants, and Commission must be ‘‘Proposed Agency-Wide feel that side-by-side testing of EPDs prepared to consider changes to Implementation Plan for Probabilistic and conventional dosimeters are regulations, to guidance documents, to Risk Assessment (PRA),’’ (3) the needed, both in the workplace and the licensing process, and to the Commission’s Staff Requirements under laboratory controlled conditions, inspection program. Second, the NRC Memorandum of September 13, 1994, that a type-testing program is needed for staff and Commission must be concerning the August 30, 1994, EPDs, and lastly, that user guidelines be committed to a shift in the application Commission meeting on SECY–94–218 developed for their use as primary of resources over a period of time based and SECY–94–219, and (4) the dosimeters. on risk findings. Third, the NRC staff Commission’s Staff Requirements Draft NUREG/CR–6354 is available for must undertake a training and Memorandum of October 4, 1994, on inspection and copying for a fee at the development program, which may SECY–94–218 can be obtained NRC Public Document Room, 2120 L include recruiting personnel with PRA electronically by accessing the NRC Street NW. (Lower Level), Washington experience, to significantly enhance the electronic bulletin board system (BBS) DC 20555–0001. A free single copy of PRA expertise necessary to implement Tech Specs Plus. These four Draft NUREG/CR–6354, to the extent of these goals. Additionally, the NRC staff the supply, may be requested by writing must continue to develop new and WordPerfect 5.1 documents are located in the BBS MISC library directory under to Distribution Services, Printing and improved PRA methods and regulatory Mail Services Branch, Office of decision-making tools and must the single filename ‘‘PRAPLAN.ZIP’’. The WordPerfect 5.1 file for the final Administration, U.S. Nuclear Regulatory significantly enhance the collection of Commission, Washington, DC 20555– equipment and human reliability data policy statement on the ‘‘Use of Probabilistic Risk Assessment Methods 0001. for all of the agency’s risk assessment Submit comments on draft NUREG/ in Nuclear Regulatory Activities,’’ is applications, including those associated CR–6354 by (90 days after publication with the use, transportation, and storage located in the BBS MISC library date). Mail comments to: Chief, Rules of nuclear materials. However, it is directory under the filename Review and Directives Branch, Division recognized that there may be situations ‘‘PRPOLICY.ZIP’’. The BBS operates 24 of Freedom of Information and with material users where it may not be hours a day and can be accessed Publication Services, Mail Stop T–6 cost-effective to use PRA in their through a toll-free number, 1–800–679– D59, U.S. Nuclear Regulatory specific regulatory applications. 5784, at modem speeds up to 9600 baud Commission, Washington, DC 20555– This policy statement affirms the with communication parameters set at 8 0001. Comments may be hand-delivered Commission’s belief that PRA methods data bits, no parity, 1 stop bit, full to 11545 Rockville Pike, Maryland can be used to derive valuable insights, duplex, and using ANSI terminal between 7:45 a.m. and 4:15 p.m. on perspective, and general conclusions as emulation. Federal workdays. a result of an integrated and Dated at Rockville, Maryland, this 10th day Comments may also be submitted comprehensive examination of the of August, 1995. electronically, in either ASCII text or design of nuclear facilities, facility For the Nuclear Regulatory Commission. Wordperfect format (version 5.1 or response to initiating events, the later), by calling the NRC Electronic expected interactions among facility Andrew L. Bates, Bulletin Board on FEDWORLD. The structures, systems, and components, Acting Secretary of the Commission. bulletin board may be accessed using a and between the facility and its [FR Doc. 95–20237 Filed 8–15–95; 8:45 am] personal computer, a modem, and one operating staff. BILLING CODE 7590±01±P of the commonly available 42630 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices communications software packages, or Gopher look). An index file listing all The Licensee responded to the Notice directly via Internet. files within a subdirectory, with in a letter dated July 5, 1995. In its If using a personal computer and descriptions, is included. There is a 15- response, the Licensee admits the modem, the NRC subsystem on minute time limit for FTP access. violation assessed a civil penalty FEDWORLD can be accessed directly by Although FEDWORLD can be (Violation I), and requests abatement or dialing the toll free number: 1–800– accessed through the World Wide Web, mitigation of the penalty. 303–9672. Communication software like FTP that mode provides access for II parameters should be set as follows: downloading files and does not display parity to none, data bits to 8, and stop the NRC Rules Menu. For more After consideration of the Licensee’s bits to 1 (N,8,1). Using ANSI terminal information on NRC bulletin boards call response and the statements of fact, emulation, the NRC NUREG and Reg Mr. Arthur Davis, Systems Integration explanation, and argument contained Guide Comments subsystem can then be and Development Branch, U.S. Nuclear therein, the NRC staff has determined, accessed by selecting the ‘‘NRC Rules Regulatory Commission, Washington, as set forth in the Appendix to this Menu’’ option from the ‘‘NRC Main DC 20555, telephone (301) 415–5780; e- Order, that an adequate basis was not Menu.’’ For further information about mail [email protected]. provided for abatement or mitigation of options available for NRC at the penalty and that a penalty of $5000 FEDWORLD consult the ‘‘Help/ Dated at Rockville, Maryland, this 4th day of August, 1995. should be imposed. Information Center’’ from the ‘‘NRC Main Menu.’’ Users will find the For the Nuclear Regulatory Commission. IV ‘‘FEDWORLD Online User’s Guides’’ Sher Bahadur, Chief In view of the foregoing and pursuant particularly helpful. Many NRC Waste Management Branch, Division of to Section 234 of the Atomic Energy Act subsystems and databases also have a Regulatory Applications, Office of Nuclear of 1954, as amended (Act), 42 U.S.C. ‘‘Help/Information Center’’ option that Regulatory Research. 2282, and 10 CFR 2.205, IT IS HEREBY is tailored to the particular subsystem. [FR Doc. 95–20240 Filed 8–15–95; 8:45 am] ORDERED THAT: The NRC subsystem on FEDWORLD BILLING CODE 7590±01±P The Licensee pay a civil penalty in the can also be accessed by a direct dial amount of $5000 within 30 days of the date phone number for the main FEDWORLD of this Order, by check, draft, money order, BBS: 703–321–3339; Telnet via Internet: [Docket No. 030±00472, License No. 37± or electronic transfer, payable to the fedworld.gov (192.239.92.3); File 02385±01, EA No. 95±021] Treasurer of the United States and mailed to Transfer Protocol (FTP) via Internet: James Lieberman, Director, Office of ftp.fedworld.gov (192.239.92.205); and Carlisle Hospital, Carlisle, PA; Order Enforcement, U.S. Nuclear Regulatory World Wide Web using: http:// Imposing a Civil Monetary Penalty Commission, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852– www.fedworld.gov (this is the Uniform I Resource Locator (URL)). 2738. Carlisle Hospital (Licensee) is the If using a method other than the toll V free number to contact FEDWORLD, the holder of Byproduct Materials License NRC subsystem will be accessed from No. 37–02385–01 (License) issued by The Licensee may request a hearing the main FEDWORLD menu by selecting the Nuclear Regulatory Commission within 30 days of the date of this Order. the ‘‘Regulatory, Government (NRC or Commission) on March 12, A request for a hearing should be clearly Administration and State Systems,’’ 1985. The License was most recently marked as a ‘‘Request for an then selecting ‘‘Regulatory Information renewed by the Commission on April 7, Enforcement Hearing’’ and shall be Mall.’’ At that point, a menu will be 1993. The License authorizes the addressed to the Director, Office of displayed that has an option ‘‘U.S. Licensee to possess and use certain Enforcement, U.S. Nuclear Regulatory Nuclear Regulatory Commission’’ that byproduct materials in accordance with Commission, Washington, DC 20555, will take you to the NRC Online main the conditions specified therein at the with a copy to the Commission’s menu. The NRC Online area can also be Licensee’s facility in Carlisle, Document Control Desk, Washington, accessed directly by typing ‘‘/go nrc’’ at Pennsylvania. DC 20555. Copies also shall be sent to a FEDWORLD command line. If you the Assistant General Counsel for II access NRC from FEDWORLD’s main Hearings and Enforcement at the same menu, you may return to FEDWORLD An inspection of the Licensee’s address and to the Regional by selecting the ‘‘Return to activities was conducted on February 2 Administrator, NRC Region I, 475 FEDWORLD’’ option from the NRC and 3, 1994, at the Licensee’s facility Allendale Road, King of Prussia, PA Online Main Menu. However, if you located in Carlisle, Pennsylvania. In 19406. access NRC at FEDWORLD by using addition, an investigation was If a hearing is requested, the NRC’s toll-free number, you will have conducted subsequently by the NRC Commission will issue an Order full access to all NRC systems but you Office of Investigations. The results of designating the time and place of the will not have access to the main this inspection and investigation hearing. If the Licensee fails to request FEDWORLD system. indicated that the Licensee had not a hearing within 30 days of the date of If you contact FEDWORLD using conducted its activities in full this Order, the provisions of this Order Telnet, you will see the NRC area and compliance with NRC requirements. A shall be effective without further menus, including the Rules menu. written Notice of Violation and proceedings. If payment has not been Although you will be able to download Proposed Imposition of Civil Penalty made by that time, the matter may be documents and leave messages, you will (Notice) was served upon the Licensee referred to the Attorney General for not be able to write comments or upload by letter dated June 6, 1995. The Notice collection. files (comments). If you contact states the nature of the violations, the In the event the Licensee requests a FEDWORLD using FTP, all files can be provisions of the NRC’s requirements hearing as provided above, the issues to accessed and downloaded but uploads that the Licensee had violated, and the be considered at such hearing shall be are not allowed; all you will see is a list amount of the civil penalty proposed for whether, on the basis of the violation of files without descriptions (normal one of the violations. admitted by the Licensee as set forth in Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42631 Section I of the Notice referenced in Dr. Hall reviewed the individuals’ use of the the violation was identified by the NRC; Section II above, this Order should be byproduct material, and the related records increased by 100% because the Licensee had sustained. reflecting such use). prior opportunity to prevent the violation This is a Severity Level III violation from recurring given the issuance of the Dated at Rockville, Maryland this 7th day (Supplements VI and VII). Notice of Violation on December 23, 1992, as of August, 1995. well as the telephone inquiry by NRC in For the Nuclear Regulatory Commission. Summary of Licensee’s Request for Mitigation February 1993; and decreased 50% based on James Lieberman, The Licensee maintains that it is the Licensee’s prompt and comprehensive committed to full regulatory compliance as corrective actions. As a result, a penalty of Director, Office of Enforcement. illustrated by its past record. The Licensee $5000 was proposed. Appendix—Evaluations and Conclusion stated that it has only been issued one other The Licensee’s enforcement history On June 6, 1995, a Notice of Violation and Notice of Violation and admitted that it includes one violation identified during an Proposed Imposition of Civil Penalty (Notice) involved a similar matter of concern as NRC inspection conducted in 1991, and one was issued for violations identified during an addressed by the present Notice. The violation identified during an NRC NRC inspection conducted at the Licensee’s Licensee stated that it was of the belief that inspection conducted in 1992 that involved facility located in Carlisle, Pennsylvania. The this matter had been addressed adequately by the failure to apply for an amendment before penalty was issued for one violation. The having the authorized users supervise the permitting physicians to work as authorized Licensee responded to the Notice in a letter, unauthorized users. The Licensee further users. The latter violation was identified dated July 5, 1995. In its responses, the stated that its otherwise stellar record of again during the most recent inspection Licensee admits the violation assessed a compliance evidences its commitment to conducted in February 1994. penalty (Violation I), and requests abatement compliance with regulatory requirements of The Licensee was given prior notice or mitigation of the civil penalty. The NRC’s the NRC. regarding this violation based on the Notice evaluation and conclusion regarding the The Licensee also stated that, although the of Violation dated December 23, 1992. It is Licensee’s requests are as follows: previously issued Notice involved the Licensee’s responsibility to assure that unauthorized use similar to that described in the violation does not recur. The underlying Restatement of Violation Assessed a Civil the present Notice, it should not be the basis cause of the violation identified during the Penalty for escalation of the proposed penalty 1994 inspection may in fact be different from 10 CFR 35.21(a) requires that the licensee, because the Licensee believed that the issue the cause of the similar violation in 1992; through the Radiation Safety Officer, ensure of unauthorized use had been adequately however, under the NRC Enforcement Policy, that radiation safety activities are being addressed. The Licensee contends that the the Licensee is expected to implement lasting performed in accordance with regulatory underlying cause of the present violation corrective action that will not only prevent requirements. stems primarily from poor channels of recurrence of the violation at issue but will License Condition 11 of Amendment No. communication and that these causes were be appropriately comprehensive to prevent 19 of NRC License No. 37–02385–01, which not apparent and not an issue, at the time of the occurrence of similar violations in the expired on February 29, 1992, but which the previous Notice. The Licensee stated that future. The Licensee committed to providing remained in effect (until Amendment No. 20 it did not previously have the opportunity to supervision of the unauthorized users, and it was issued on April 7, 1993) pursuant to a address these communication issues. is the Licensee’s responsibility to assure that timely renewal application made on October The Licensee further stated that upon being the supervision was provided. The 7, 1991, states that licensed material shall be apprised of the violations, it took effective supervision did not occur, even though a used by, or under the supervision of, Charles and comprehensive actions to correct the Licensee Vice President informed the NRC K. Loh, M.D., or Robert F. Hall, M.D. violations and brought the Licensee into during a February 1993 telephone 10 CFR 35.13(b), in effect at the time the immediate compliance. The Licensee further conversation that it was occurring. violation occurred, provided that a licensee stated that the violation upon which the civil The Licensee requests that credit be given shall apply for and must receive a license penalty is based did not cause injury to for its prompt and comprehensive corrective amendment before it permits anyone, except patients, employees, or staff nor did it create action for the violations identified during the a visiting authorized user described in 10 a substantial risk. The Licensee also stated 1994 inspection. The NRC notes that the base CFR 35.27, to work as an authorized user that the unauthorized physicians were well civil penalty amount was mitigated 50% under the license. qualified, albeit unauthorized, and based on the Licensee’s prompt and 10 CFR 35.11(b) provides that an subsequently were listed on the license by comprehensive corrective actions, as individual may use byproduct material in the NRC, upon approval of the Licensee’s provided by the NRC Enforcement Policy. accordance with the regulations in this amendment. Therefore, no further adjustment of the base chapter under the supervision of an In addition, the Licensee contends that the civil penalty is warranted based on this authorized user as provided in 10 CFR 35.25, violation would not have occurred if the factor. unless prohibited by license condition. license amendment was timely processed. While the Licensee also contends that the 10 CFR 35.25(a)(3) requires, in part, that a The Licensee stated that it filed a license violation did not cause injury, the NRC notes licensee that permits the use of byproduct amendment with the NRC on October 7, that classification of a violation at Severity material by an individual under the 1991. The Licensee further stated that the Level III is based on its safety and regulatory supervision of an authorized user, shall two unauthorized physicians were to be significance, and is not premised on an periodically review the supervised added as authorized users. The Licensee injury to an individual. If a violation were to individual’s use of byproduct material and notes that while it did not request that the contribute directly to an injury to an the records to reflect this use. amendment be expedited, the need to make individual, a higher Severity Level could be Contrary to the above, from December 3, such a request was not foreseen, because it assigned and a higher civil penalty could be 1992 to April 7, 1993, the licensee, through believed that proper supervision was being issued. its Radiation Safety Officer, failed to ensure provided. The NRC recognizes that the Licensee filed that radiation safety activities were being For these reasons, the Licensee requests a request for renewal of its NRC license on performed in accordance with the above that the proposed civil penalty be wholly October 7, 1991, and the processing of that requirements. Specifically, during this abated or, in the alternative, mitigated so as renewal by the NRC was not completed until period, byproduct material was used by two to preclude the 100% escalation of the April 7, 1993. However, during the exit individuals (other than Dr. Loh or Dr. Hall) proposed civil penalty. interview following the 1992 inspection, the to perform teletherapy; and the two Licensee informed the NRC inspector that the individuals were not listed as authorized NRC Evaluation of Licensee’s Request for unauthorized users would be supervised by users on the license and did not qualify as Mitigation physicians named on the NRC license. Then, visiting authorized users pursuant to 10 CFR The NRC letter, dated June 6, 1995, during a February 1993 telephone call to the 35.27, and the individuals’ use of byproduct transmitting the proposed civil penalty, notes Licensee’s Vice President, General Services, material was not under the supervision of Dr. that the base civil penalty amount of $2500 the Licensee again informed the NRC that Loh or Dr. Hall (in that neither Dr. Loh nor in this case was increased by 50% because such supervision was being provided. Had 42632 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices the Licensee provided accurate information II personal supervision of a radiographer. to the NRC as required by 10 CFR 30.9, the During the period of approximately The personal supervision shall include: NRC staff could have focused its review on (a) The radiographer’s personal presence the qualifications of the unauthorized October 1992 to April 1993 the Licensee performed industrial radiography on a at the site where the sealed sources are physicians and issued a separate license being used, (b) the ability of the amendment on an expedited basis to ensure gas line project near Kalkaska, that regulatory compliance was maintained Michigan. Mr. Steven Cody was a radiographer to give immediate while patient teletherapy services continued. radiographer assigned to the project. As assistance if required, and (c) the Under these circumstances, the NRC staff a radiographer, Mr. Cody was radiographer’s watching the assistant’s believes that the timeliness of the processing responsible for compliance with the performance of the operations referred of the license renewal should not be a to in this section. Commission’s regulations, including the mitigating factor in assessing the civil Contrary to the requirements of 10 personal supervision of any penalty amount. CFR 34.44, Mr. Cody was not personally Accordingly, based on the Enforcement radiographic operation performed by present on more than one occasion at Policy in effect at the time, a $5,000 civil radiographer’s assistants working with the site where sealed sources were used. penalty was appropriate. him. 10 CFR 34.2 defines a Therefore, he did not have the ability to The NRC notes that its Enforcement Policy radiographer’s assistant as any was revised on June 30, 1995 (60 FR 34381). give immediate assistance if required individual who under the personal and he could not watch the assistant’s In applying the revised NRC Enforcement supervision of a radiographer, uses Policy, the same civil penalty of $5,000 performance of radiographic operations. radiographic exposure devices, sealed Furthermore, 10 CFR 30.10 states that would be warranted given the willful nature sources or related handling tools, or of the violation; the fact that it was identified any licensee or any employee of a by the NRC; consideration of the Licensee’s radiation survey instruments in licensee may not engage in deliberate good corrective actions; and the exercise of radiography. misconduct that causes or, but for discretion as warranted under the On May 13, 1993, the Licensee detection, would have caused a licensee circumstances, including the facts that the received information that indicated that to be in violation of any rule, regulation, violation represents a recurrence (i.e., Mr. Cody routinely failed to supervise or order, or any term, condition, or directly repetitive) of an earlier violation and radiographer’s assistants during limitation of any license issued by the the Licensee missed a number of radiographic operations at the Kalkaska, opportunities to correct it. Therefore, Commission. Deliberate misconduct Michigan, project. On May 14, 1993, the means, in part, an intentional act or application of the new policy results in the Licensee notified the NRC Region III same civil penalty being assessed. omission that the person knows: (1) office of the potential violation. Would cause a licensee to be in NRC Conclusion The NRC Office of Investigations (OI) violation of any rule, regulation or any The NRC has concluded that the Licensee investigated the matter. Sworn term, condition, or limitation of any did not provide an adequate basis for testimony of radiographer’s assistants license issued by the Commission; or abatement or mitigation of the civil penalty. confirmed that Mr. Cody was not always constitutes a violation of a procedure of Accordingly, the proposed civil penalty in present when the assistant performed a licensee. the amount of $5000 should be imposed. radiographic operations. The testimony Mr. Cody’s failure to be present [FR Doc. 95–20239 Filed 8–15–95; 8:45 am] indicated that at times Mr. Cody left the during radiographic operations BILLING CODE 7590±01±P work site leaving the radiographer’s conducted by a radiographer’s assistant assistant alone to conduct radiographic is a violation of 10 CFR 34.44 and his operations. Mr. Cody admitted to OI in violation of that requirement is [IA 95±029] a sworn statement that he sometimes considered deliberate because Mr. Cody left the job site while an assistant was fully aware of the requirements of Steven Cody; Order Prohibiting conducted radiographic operations. Mr. 10 CFR 34.44, yet he intentionally Involvement in NRC-Licensed Cody stated to OI and during the elected to leave the job site. Activities (Immediately Effective) enforcement conference that he would only leave the job site at the assistant’s III I suggestion that the remaining Based on the above, the NRC From approximately January 1990, to radiographic operations could be concludes that Steven Cody engaged in April 24, 1993, Steven Cody was performed without any assistance from deliberate misconduct that caused a employed as a radiographer by Mid Mr. Cody. violation of 10 CFR 34.44 when he American Inspection Services, Inc. (Mid OI developed information that failed to be personally present whenever American Inspection or Licensee). Mid indicated that Mr. Cody was familiar a radiographer’s assistant under his American Inspection holds Byproduct with the NRC requirement to have a supervision performed radiographic Material License No. 21–26060–01 radiographer present whenever a operations. The NRC must be able to issued by the U. S. Nuclear Regulatory radiographer’s assistant performed rely on its licensees and the employees Commission (NRC or Commission) radiographic operations. of licensees, to comply with NRC pursuant to 10 CFR Parts 30 and 34 on Mr. Cody’s failure to supervise requirements, including the requirement June 13, 1989. The license authorizes radiographer’s assistants during that radiographic operations cannot be the use of iridium–192 in sealed sources radiography operations is a violation of conducted by a radiographer’s assistant for industrial radiography and depleted 10 CFR 34.44, ‘‘Supervision of unless a radiographer is present during uranium as solid metal to shield radiographers’ assistants.’’ 10 CFR 34.44 such operations. The deliberate exposure devices and source changers. requires that whenever a radiographer’s violation of 10 CFR 34.44 by Mr. Cody, Licensed material is authorized for use assistant uses radiographic exposure as discussed above, has raised serious at the facility located at 1206 Effie Road, devices, sealed sources or related source doubt as to whether he can be relied on Gaylord, Michigan, and at job sites handling tools, or conducts radiation to comply with NRC requirements. located throughout the United States surveys required by 10 CFR 34.43(b) to Consequently, I lack the requisite where the NRC maintains jurisdiction. determine that the sealed source has assurance that Steven Cody will The license was due to expire on August returned to the shielded position after conduct licensed activities in 31, 1994, but is under timely renewal. an exposure, he shall be under the compliance with the Commission’s Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42633 requirements or that the health and The Director, Office of Enforcement, suspicion, unfounded allegations, or safety of the public will be protected if may, in writing, relax or rescind any of error. Mr. Cody was permitted at this time to the above conditions upon In the absence of any request for be involved in NRC-licensed activities. demonstration by Mr. Cody of good hearing, or written approval of an Therefore, the public health, safety and cause. extension of time in which to request a hearing, the provision specified in interest require that for a period of one V year from the date of this Order, Steven Section IV above shall be final 20 days Cody be prohibited from any In accordance with 10 CFR 2.202, from the date of this Order without involvement in NRC-licensed activities Steven Cody must, and any other person further order or proceedings. If an for either: (1) An NRC licensee, or (2) an adversely affected by this Order may, extension of time for requesting a Agreement State licensee performing submit an answer to this Order, and hearing has been approved, the licensed activities in areas of NRC may request a hearing on this Order, provisions specified in Part IV shall be jurisdiction in accordance with 10 CFR within 20 days of the date of this Order. final when the extension expires if a 150.20. In addition, for three years When good cause is shown, hearing request has not been received. commencing after the one year period of consideration will be given to extending An answer or a request for hearing shall prohibition, Mr. Cody must notify the the time to request a hearing. A request not stay the immediate effectiveness of NRC of his employment or involvement for extension of time must be made in this Order. in NRC-licensed activities to ensure that writing to the Director, Office of Dated at Rockville, Maryland this 7th day the NRC can monitor the status of Mr. Enforcement, and include a statement of of August 1995. Cody’s compliance with the good cause for the extension. The For the Nuclear Regulatory Commission. answer may consent to this Order. Commission’s requirements and his James Lieberman, Unless the answer consents to this understanding of his commitment to Director, Office of Enforcement. compliance. Furthermore, pursuant to Order, the answer shall, in writing and under oath or affirmation, specifically [FR Doc. 95–20238 Filed 8–15–95; 8:45 am] 10 CFR 2.202, I find that the BILLING CODE 7590±01±P significance of Mr. Cody’s conduct is admit or deny each allegation or charge such that the public health, safety, and made in this Order and shall set forth interest require that this Order be the matters of fact and law on which Mr. [Docket No. 030±31252, License No. 35± immediately effective. Cody or other person adversely affected 26996±01, IA 95±028] relies and the reasons as to why the IV Order should not have been issued. Any Maria Hollingsworth, Tulsa, Oklahoma; answer or request for a hearing shall be Order Prohibiting Involvement in NRC- Accordingly, pursuant to sections 81, submitted to the Secretary, U.S. Nuclear Licensed Activities and Requiring 161b, 161i, 161o, 182, and 186 of the Regulatory Commission, Attn: Chief, Certain Notification to NRC (Effective Atomic Energy Act of 1954, as amended, Docketing and Service Section, Immediately) and the Commission’s regulations in 10 Washington DC 20555. Copies also shall CFR 2.202, 10 CFR 30.10, and 10 CFR be sent to the Director, Office of I 150.20, it is hereby ordered, effective Enforcement, U.S. Nuclear Regulatory Maria Hollingsworth is the owner and immediately, that: Commission, Washington, DC 20055, to operator of Blackhawk Engineering, Inc. 1. Steven Cody is prohibited for one the Assistant General Counsel for (Licensee or Blackhawk) and served as year from the date of this Order from Hearings and Enforcement at the same the radiation safety officer with respect engaging in any NRC-licensed activities. address, and to the Regional to its Nuclear Regulatory Commission NRC-licensed activities are those Administrator, NRC Region III, 801 (NRC or Commission) license. activities that are conducted pursuant to Warrenville Road, Lisle, Illinois 60632– Blackhawk was issued Byproduct a specific or general license issued by 4531 if the answer or hearing request is Materials License No. 35–26996–01 by the NRC, including, but not limited to, by a person other than Mr. Cody. If a the NRC, pursuant to 10 CFR Part 30, on those activities of Agreement State person other than Mr. Cody requests a August 22, 1989. The license authorized licensees conducted pursuant to the hearing, that person shall set forth with Blackhawk to possess and utilize sealed authority granted by 10 CFR 150.20. particularity the manner in which his or sources of radioactive material 2. For three years after the above one her interest is adversely affected by the contained in moisture/density gauges in year period of prohibition has expired Order and shall address the criteria set accordance with the conditions Steven Cody shall, within 20 days of his forth in 10 CFR 2.714(d). specified therein. The license expired acceptance of each employment offer If a hearing is requested by Mr. Cody on August 31, 1994, and Blackhawk did involving NRC-licensed activities or his or a person whose interest is adversely not submit a renewal application as becoming involved in NRC-licensed affected, the Commission will issue an provided in 10 CFR 30.37. On February activities, as defined in Paragraph IV.1 Order designating the time and place of 14, 1995, the NRC issued an order above, provide notice to the Director, any hearing. If a hearing is held, the requiring Blackhawk to cease use of, Office of Enforcement, U.S. Nuclear issue to be considered at such hearing and transfer, all NRC-licensed material Regulatory Commission, Washington, shall be whether this Order should be in its possession to a person authorized DC 20555, of the name, address, and sustained. to receive and possess such material (EA telephone number of the employer or Pursuant to 10 CFR 2.202(c)(2)(i), 95–018). Blackhawk complied with the the entity where he is, or will be, Steven Cody, or any other person terms of the order and on May 17, 1995, involved in the NRC-licensed activities. adversely affected by this Order, may, in the NRC issued a Notice of Termination In the first notification, Steven Cody addition to demanding a hearing, at the of Blackhawk’s NRC license. shall include a statement of his time the answer is filed or sooner, move commitment to compliance with the presiding officer to set aside the II regulatory requirements and the basis immediate effectiveness of the Order on The February 14, 1995 order was why the Commission should have the ground that the Order, including the issued to Blackhawk because: (1) confidence that he will now comply need for immediate effectiveness, is not Blackhawk continued to utilize gauges with applicable NRC requirements. based on adequate evidence but on mere containing NRC-licensed material after 42634 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices the NRC license had expired, and Ms. Blackhawk and her role as the radiation involved in NRC-licensed activities as Hollingsworth had specifically agreed safety officer with respect to the NRC defined in Paragraph IV.1 above, not to utilize this material, as confirmed license, the NRC considers her provide notice to the Director, Office of by a Confirmatory Action Letter (CAL) deliberate misconduct particularly Enforcement, U. S. Nuclear Regulatory from the NRC to Blackhawk on significant. NRC must be able to rely on Commission, Washington, DC 20555, of November 8, 1994; and (2) Ms. licensee management to comply with the name, address, and telephone Hollingsworth was not truthful in NRC requirements, especially the number of the employer or the entity statements made to NRC personnel requirement to provide accurate where she is, or will be, involved in regarding the continued use of the information to the NRC. Despite her NRC-licensed activities. In the first gauges. Ms. Hollingsworth’s actions commitment to comply with NRC notification, Ms. Hollingsworth shall were in violation of 10 CFR 30.10, a requirements in the future, Ms. include a statement of her commitment regulation prohibiting deliberate Hollingsworth’s past deliberate to compliance with NRC requirements misconduct by any licensee or employee misrepresentation to the NRC and and the basis why the Commission of a licensee. Deliberate misconduct deliberate violation of other NRC should have confidence that she will includes an intentional act or omission requirements raise serious doubt as to now comply with applicable NRC that a person knows would cause a whether she can be relied upon to requirements. licensee to be in violation of NRC comply with NRC requirements in the The Director, Office of Enforcement, requirements, or deliberate submission future, including the requirement to may, in writing, relax or rescind any of to the NRC of material information that provide complete and accurate the above conditions upon the person submitting the information information to the NRC. demonstration by Ms. Hollingsworth of knows to be incomplete or inaccurate. Consequently, I lack the requisite good cause. In brief, Ms. Hollingsworth violated 10 reasonable assurance that licensed CFR 30.10 because, as she admitted to activities would be conducted in V compliance with the Commission’s NRC investigators: (1) She understood In accordance with 10 CFR 2.202, requirements and that the health and in November 1994 that she no longer Maria Hollingsworth must, and any safety of the public would be protected was authorized to use the gauges but did other person adversely affected by this use the gauges until December 22, 1994, if Ms. Hollingsworth were permitted at Order may, submit an answer to this to complete a construction job; and (2) this time to be involved in NRC-licensed Order, and may request a hearing on she deliberately provided false activities. Therefore, the public health, this Order, within 20 days of the date of information when she told an NRC safety and interest require that Ms. this Order. Where good cause is shown, inspector on December 19, 1994 that she Hollingsworth be prohibited from any consideration will be given to extending had not used the gauges since 1992. involvement in NRC-licensed activities On June 5, 1995, the NRC conducted for a period of one year. Additionally, the time to request a hearing. A request a telephonic enforcement conference Ms. Hollingsworth is required to notify for extension of time must be made in with Ms. Hollingsworth to determine the NRC of her involvement in NRC- writing to the Director, Office of whether her deliberate misconduct licensed activities for one year following Enforcement, and include a statement of warranted enforcement action directly the one year prohibition period. good cause for the extension. The against her as an individual. Ms. Furthermore, pursuant to 10 CFR 2.202, answer may consent to this Order. Hollingsworth stated that prior to I find that the significance of Maria Unless the answer consents to this November 1994, she had responded to Hollingsworth’s conduct described Order, the answer shall, in writing and NRC inquiries regarding the renewal of above is such that the public health, under oath or affirmation, specifically Blackhawk’s license and believed that safety and interest require that this admit or deny each allegation or charge she had taken care of it. However, she Order be immediately effective. made in this Order and shall set forth admitted that, after being contacted by the matters of fact and law on which IV the regional office in November 1994 Ms. Hollingsworth or other person and receiving a November 8, 1994 Accordingly, pursuant to sections 81, adversely affected relies and the reasons Confirmatory Action Letter (CAL) from 161b, 161i, 161o, 182 and 186 of the as to why the Order should not have NRC, she made a conscious decision to Atomic Energy Act of 1954, as amended, been issued. Any answer or request for continue using the gauges, contrary to and the Commission’s regulations in 10 a hearing shall be submitted to the the terms of the CAL, to complete a CFR 2.202, 10 CFR 30.10, and 10 CFR Secretary, U.S. Nuclear Regulatory construction job. Ms. Hollingsworth also 150.20, it is hereby ordered, effective Commission, Attn: Chief, Docketing and stated that she did so without contacting immediately, that: Service Section, Washington, DC 20555. the NRC for further guidance or 1. Maria Hollingsworth is prohibited Copies also shall be sent to the Director, assistance because she believed that from engaging in NRC-licensed Office of Enforcement, U.S. Nuclear NRC would not have allowed her to activities for a period of one year from Regulatory Commission, Washington, continue using licensed material. Ms. the date of this Order. NRC-licensed DC 20555; to the Assistant General Hollingsworth stated that she would activities are those activities that are Counsel for Hearings and Enforcement comply with all NRC regulations in the conducted pursuant to a specific or at the same address; to the Regional future. general license issued by the NRC, Administrator, NRC Region IV, 611 including, but not limited to, those Ryan Plaza Drive, Suite 400, Arlington, III activities of Agreement State licensees Texas 76011; and to Ms. Hollingsworth Ms. Hollingsworth admits both to conducted pursuant to the authority if the answer or hearing request is by a deliberately violating NRC requirements granted by 10 CFR 150.20. person other than Ms. Hollingsworth. If by using NRC-licensed material after 2. For a period of one year after the a person other than Ms. Hollingsworth being made aware of the expiration of one year period of prohibition has requests a hearing, that person shall set Blackhawk’s license, and to deliberately expired, Maria Hollingsworth shall, forth with particularity the manner in making a false statement to an NRC within 20 days of her acceptance of each which his or her interest is adversely inspector. Given Ms. Hollingsworth’s employment offer involving NRC- affected by this Order and shall address position as owner and operator of licensed activities, or her becoming the criteria set forth in 10 CFR 2.714(d). Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42635 If a hearing is requested by Ms. publishing this notice to solicit In view of this requirement to comply Hollingsworth or a person whose comments on the proposed rule change with market making obligations similar interest is adversely affected, the from interested persons. to those of specialists, the Exchange Commission will issue an Order believes that REMMs should be treated I. Self-Regulatory Organization’s designating the time and place of any the same as specialists with respect to Statement of the Terms of Substance of hearing. If a hearing is held, the issue to transaction charges on proprietary the Proposed Rule Change be considered at such hearing shall be equity trades. Accordingly, the whether this Order should be sustained. The Exchange has made a Exchange has made a determination, as Pursuant to 10 CFR 2.202(c)(2)(i), determination to waive Exchange it did with specialists, to waive Maria Hollingsworth, or any other transaction charges for proprietary transaction charges on proprietary person adversely affected by this Order equity trades effected on the Floor by equity trades effected by REMMs to may, in addition to demanding a Registered Equity Market Makers facilitate their market making function. hearing, at the time the answer is filed (‘‘REMMs’’). Although the Exchange currently has or sooner, move the presiding officer to 30 members registered to trade as II. Self-Regulatory Organization’s set aside the immediate effectiveness of REMMs, less than half that number Statement of the Purpose of, and the Order on the ground that the Order, trade on a regular basis. Statutory Basis for, the Proposed Rule including the need for immediate Change 2. Statutory Basis effectiveness, is not based on adequate evidence but on mere suspicion, In its filing with the Commission, the The fee change is consistent with unfounded allegations, or error. self-regulatory organization included Section 6(b) of the Act in general and In the absence of any request for statements concerning the purpose of furthers the objectives of Section 6(b)(4) hearing, or written approval of an and basis for the proposed rule change in particular in that it is intended to extension of time in which to request a and discussed any comments it received assure the equitable allocation of hearing, the provisions specified in on the proposed rule change. The text reasonable dues, fees, and other charges Section IV above shall be effective and of these statements may be examined at among members, issuers, and other final 20 days from the date of this Order the places specified in Item IV below. persons using the Exchange’s facilities. without further order or proceedings. If The self-regulatory organization has B. Self-Regulatory Organization’s an extension of time for requesting a prepared summaries, set forth in Statement on Burden on Competition hearing has been approved, the Sections A, B, and C below, of the most provisions specified in Part IV shall be significant aspects of such statements. The fee change will impose no burden final when the extension expires if a on competition. A. Self-Regulatory Organization’s hearing request has not been received. Statement of the Purpose of, and C. Self-Regulatory Organization’s An answer or a request for a hearing Statutory Basis for, the Proposed Rule Statement on Comments on the shall not stay the immediate Change Proposed Rule Change Received from effectiveness of this Order. Members, Participants or Others 1. Purpose Dated at Rockville, Maryland this 3rd day No written comments were solicited of August 1995. In 1991, for the first time, the or received with respect to the fee For the Nuclear Regulatory Commission Exchange imposed transaction charges change. James Lieberman, on proprietary equity trades by members Director, Office of Enforcement. and member organizations. While these III. Date of Effectiveness of the [FR Doc. 95–20241 Filed 8–15–95; 8:45 am] charges were waived for proprietary Proposed Rule Change and Timing for Commission Action BILLING CODE 7590±01±P trades of equity specialists to facilitate their market making function, members The foregoing rule proposal changes a trading on the Floor as REMMs were not fee imposed by the Exchange and SECURITIES AND EXCHANGE similarly exempted. therefore has become effective pursuant COMMISSION REMMs are members that trade on a to Section 19(b)(3)(A) of the Act and proprietary basis on the Floor in subparagraph (e) of Rule 19b–4 [Release No. 34±36081; File No. SR±Amex± designated equity securities. Exchange 94±30] thereunder. At any time within 60 days Rule 114 sets forth the obligations and of the filing of such proposed rule Self-Regulatory Organizations; Notice requirements under which REMMs are change, the Commission may summarily of Filing and Immediate Effectiveness permitted to conduct such proprietary abrogate such rule change if it appears of Proposed Rule Change by the trading on the Floor. When trading in to the Commission that such action is American Stock Exchange, Inc. their designated securities, REMMs are necessary or appropriate in the public Relating to Transaction Charges required under the Rule to contribute to interest, for the protection of investors, the maintenance of a fair and orderly or otherwise in furtherance of the August 10, 1995. market in such securities. REMMs also purposes of the Act. Pursuant to Section 19(b)(1) of the are required to engage in dealings in Securities Exchange Act of 1934 such securities which contribute to IV. Solicitation of Comments (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is price continuity or depth or minimize Interested persons are invited to hereby given that on July 21, 1995, the the effects of a temporary disparity submit written data, views and American Stock Exchange, Inc. between the supply and demand for arguments concerning the foregoing. (‘‘Amex’’ or ‘‘Exchange’’) filed with the such securities. Thus, while not subject Persons making written submissions Securities and Exchange Commission to a specialist’s continuous market should file six copies thereof with the (‘‘Commission’’ or ‘‘SEC’’) the proposed making obligation, when REMMs effect Secretary, Securities and Exchange rule change as described in Items I, II proprietary equity trades on the Floor, Commission, 450 Fifth Street, N.W., and III below, which Items have been they are required to comply with the Washington, D.C. 20549. Copies of the prepared by the self-regulatory same market making obligations as submission, all subsequent organization. The Commission is specialists. amendments, all written statements 42636 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices with respect to the proposed rule is publishing this notice of solicit trading strategies have become more change that are filed with the comments on the proposed rule change intricate, and because such orders Commission, and all written from interested persons. involve concurrent executions at the communications relating to the CBOE and in markets other than the I. Self-Regulatory Organization’s proposed rule change between the CBOE, the Exchange proposes to adopt Statement of the Terms of Substance of Commission and any person, other than new paragraph (b) to Rule 6.48. The the Proposed Rule Change those that may be withheld from the Exchange believes that this amendment public in accordance with the The Exchange proposes to amend should establish well-defined provisions of 5 U.S.C. § 552, will be Rule 6.48 to specify certain duties of conditions and requirements in its Rules available for inspection and copying at CBOE members in effecting an option that members must observe in executing the Commission’s Public Reference transaction on the CBOE that is part of and cancelling such transactions. Section, 450 Fifth Street, N.W., a combined stock-option order. The text Proposed CBOE Rule 6.48(b) would Washington, D.C. 20549. Copies of such of the proposed rule change is available apply to stock-option combination filing will also be available for at the Office of the Secretary, the orders,4 other than orders respecting inspection and copying at the principal Exchange, and at the Commission. index options,5 and would impose two requirements on CBOE members who office of the Amex. All submissions II. Self-Regulatory Organization’s should refer to File No. SR–Amex–95– are parties to a stock-option Statement of the Purpose of, and combination order. First, a member 30 and should be submitted by Statutory Basis for, the Proposed Rule September 6, 1995. announcing such an order to a trading Change crowd must disclose all legs of the order For the Commission, by the Division of Market Regulation, pursuant to delegated In its filing with the Commission, the and must identify the specific markets authority. Exchange included statements and prices at which the non-option Margaret H. McFarland, concerning the purpose of and basis for leg(s) are to be filled. Second, the proposed rule change. The text of concurrent with the execution of the Deputy Secretary. these statements may be examined at option leg of any multi-market order, [FR Doc. 95–20208 Filed 8–15–95; 8:45 am] the places specified in Item IV below. the initiating member and each member BILLING CODE 8010±01±M The Exchange has prepared summaries, that is a counterpart to the trade must set forth in Section (A), (B), and (C) take steps immediately to execute the [Release No. 34±36082; File No. SR±CBOE± below, of the most significant aspects of non-option leg(s) in the identified 95±16] such statements. market(s). Because both of these requirements are essential to fair and (A) Self-Regulatory Organization’s Self-Regulatory Organizations; Notice efficient order execution, proposed new Statement of the Purpose of, and of Filing of Proposed Rule Change and paragraph (c) of Rule 6.48 would Statutory Basis for, the Proposed Rule Amendment No. 1 to the Proposed provide that any failure to observe Change Rule Change by the Chicago Board either requirement will constitute a Options Exchange, Incorporated, The purpose of the proposed rule violation of CBOE’s Rule 4.1, which Related by Multi-Market Orders change is to set forth in existing CBOE prohibits conduct inconsistent with just Rule 6.48 the duties of CBOE members and equitable principles of trade. The August 10, 1995. executing an options order that is a Exchange believes that these new Pursuant to Section 19(b)(1) of the component of a ‘‘package’’ stock-option provisions will clarify members’ Securities Exchange Act of 1934 order, the execution of which involves 1 2 expectations about the execution of (‘‘Act’’), and Rule 19b–4 thereunder, transactions in CBOE’s option market multi-market orders covered by the notice is hereby given that on June 1, and in another market (a ‘‘multi-market’’ proposed rule and will promote prompt 1995, the Chicago Board Options order), and to specify the sole basis on execution of each non-option Exchange, Incorporated (‘‘CBOE’’ or which an options trade that is a component of such orders. ‘‘Exchange’’) filed with the Securities component of a multi-market order may In addition to establishing and Exchange Commission be cancelled by the members that are requirements incident to execution, the (‘‘Commission’’) the proposed rule parties thereto. The proposed rule proposed rule change sets forth one change as described in Items I, II, and change would also make it inconsistent exclusive basis on which members may III below, which Items have been with just and equitable principles of cancel an executed option transaction prepared by the Exchange. On June 22, trade, and consequently a violation of that is part of a multi-market order. 1995, the Exchange filed Amendment Exchange Rule 4.1, for a member to fail Proposed Rule 6.48(b)(ii) indicates that No. 1 to the proposal.3 The Commission to fulfill the new requirements. CBOE Rule 6.48 currently provides 4 A stock-option order is an order to buy or sell 1 15 U.S.C. 78s(b)(1). that bids or offers made and accepted in a stated number of units of an underlying or a 2 17 CFR 240.19b–4. related security coupled with either (a) the 3 In Amendment No. 1, the Exchange proposes to accordance with Exchange rules purchase or sale of option contract(s) of the same amend subparagraph (b)(ii) of CBOE Rule 6.48 to constitute binding contracts, but the series on the opposite side of the market clarify that the market conditions that prevent the Rule does not address the execution and representing the same number of units of the execution of the non-option leg(s) at the agreed cancellation of complex multi-market underlying or related security or (b) the purchase upon price(s) would be the only basis for any one and sale of an equal number of put and call option party to a trade representing the options leg of a orders. Because such orders have contracts, each having the same exercise price, multi-market order to cancel a trade. See Letter become more prevalent at the CBOE as expiration date and number of units of the from Michael Meyer, Attorney, Schiff Hardin & underlying or related security, on the opposite side Waite, to John Ayanian, Attorney, Office of Market but are not limited to, a sudden change in the price of the market representing in aggregate twice the Supervision, Division of Market Regulation, of the underlying securities prior to execution of the number of units of the underlying or related Commission, dated June 22, 1995 (‘‘Amendment stock trade, and a trading halt or systems failure security. See CBOE Rule 1.1(ii). No. 1’’). that precludes immediate execution of the stock 5 The CBOE believes that paragraph (iii) of The types of ‘‘market conditions’’ arising in a trade at the agreed upon price. See Letter from Dan proposed Rule 6.48(b) makes it clear that the non-CBOE market that would be sufficient under Schneider, Attorney, Schiff Hardin & Waite, to John proposed rule change will not apply to bids or proposed Rule 6.48(b)(ii) to justify cancellation of Ayanian, Attorney, OMS, Market Regulation, offers included in combination orders that entail the CBOE leg(s) of a multi-market order, include, Commission, dated June 30, 1995. the purchase or sale of index options. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42637 any member that is a party to an options proposed rule change between the The Exchange requests the transaction that is part of a multi-market Commission and any person, other than Commission to find good cause, order may have the options transaction those that may be withheld from the pursuant to Section 19(b)(2) of the Act, cancelled only in the event that market public in accordance with the for approving the proposed rule change conditions in any of the identified non- provisions of 5 U.S.C. § 552, will be prior to the thirtieth day after CBOE markets prevent the execution of available for inspection and copying at publication in the Federal Register. Due one or more of the non-option legs of the Commission’s Public Reference to the non-controversial nature of the the order. The Exchange believes that Section, 450 Fifth Street, NW., Phlx OTC/UTP Pilot Program, coupled cancellation under this exclusive Washington, D.C. 20549. Copies of such with the impending lapse of the Phlx’s circumstance is fair and appropriate. filing will also be available for OTC/UTP privileges on August 12, The Exchange believes that the inspection and copying at the principal 1995, the Phlx respectfully requests proposed rule change is consistent with office of the CBOE. All submissions accelerated approval of this filing. should refer to SR–CBO–95–16 and Section 6 of the Act, in general, and II. Self-Regulatory Organization’s should be submitted by September 6, furthers the objectives of Section 6(b)(5), Statement of the Purpose of, and 1995. in particular, in that it is designed to Statutory Basis for, the Proposed Rule deal with special circumstances of For the Commission, by the Division of Change multi-market orders in a manner that Market Regulation, pursuant to delegated promotes just and equitable principles authority.6 In its filing with the Commission, the of trade and the protection of investors Margaret H. McFarland, self-regulatory organization included and the public interest. Deputy Secretary. statements concerning the purpose of and basis for the proposed rule change (B) Self-Regulatory Organization’s [FR Doc. 95–20207 Filed 8–15–95; 8:45 am] and discussed any comments it received Statement on Burden on Competition BILLING CODE 8010±01±M on the proposed rule change. The text The Exchange does not believe that of these statements may be examined at the proposed rule change will impose [Release No. 34±36087; File No. SR±PHLX± the places specified in Item III below. any burden on competition. 95±63] The self-regulatory organization has prepared summaries, set forth in (C) Self-Regulatory Organization’s Self-Regulatory Organizations; Notice Sections A, B, and C below, of the most Statement on Comments on the of Filing and Order Granting significant aspects of such statements. Proposed Rule Change Received from Accelerated Approval of Proposed Members, Participants or Others Rule Change by the Philadelphia Stock A. Self-Regulatory Organization’s Statement of the Purpose of, and No written comments were solicited Exchange, Inc., Proposing to Extend its OTC/UTP Pilot Program Statutory Basis for, the Proposed Rule or received with respect to the proposed Change rule change. August 10, 1995. 1. Purpose III. Date of Effectiveness of the Pursuant to Section 19(b)(1) of the Proposed Rule Change and Timing for Securities Exchange Act of 1934 In 1985, the Commission published Commission Action (‘‘Act’’),1 and Rule 19b–4 thereunder,2 its policy to allow the extension of notice is hereby given that on August 3, unlisted trading privileges (‘‘UTP’’) by Within 35 days of the date of 1995, the Philadelphia Stock Exchange, national securities exchanges in certain publication of this notice in the Federal Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed with over-the-counter (‘‘OTC’’) securities, Register or within such longer period (i) the Securities and Exchange provided that certain terms and as the Commission may designate up to Commission (‘‘Commission’’) the conditions are satisfied. On June 26, 90 days of such date if it finds such proposed rule change as described in 1990, the Commission approved the longer period to be appropriate and Items I, II, and III below, which Items Joint Industry Plan for UTP in OTC publishes its reasons for so finding or have been prepared by the self- securities (‘‘Joint OTC/UTP Plan’’), (ii) as to which the self-regulatory regulatory organization. The submitted by the National Association organization consents, the Commission Commission is publishing this notice to of Securities Dealers, Inc. (‘‘NASD’’), the will: solicit comments on the proposed rule American Stock Exchange, the Boston (A) By order approve such proposed change from interested persons and Stock Exchange, The Midwest Stock rule change, or simultaneously is approving the Exchange (‘‘MSE,’’ currently operating (B) Institute proceedings to determine proposal. as the Chicago Stock Exchange, or whether the proposed rule change ‘‘Chx’’), and the Phlx.3 The Joint OTC/ should be disapproved. I. Self-Regulatory Organization’s UTP Plan governs the collection, Statement of the Terms of Substance of IV. Solicitation of Comments consolidation, and dissemination of the Proposed Rule Change quotation and transaction information Interested persons are invited to The Phlx, pursuant to Rule 19b–4 of for Nasdaq/NMS securities traded on submit written data, views and the Act, proposes to extend the exchanges and by NASD market makers. arguments concerning the foregoing. effectiveness of the pilot program and The Phlx files the current proposed Persons making written submissions its accompanying rules regarding the rule change to continue the should file six copies thereof with the trading of Nasdaq/National Market Secretary, Securities and Exchange (‘‘Nasdaq/NMS’’) securities on the 3 See Securities Exchange Act Release No. 28146 Commission, 450 Fifth Street, NW., Exchange pursuant to unlisted trading (June 26, 1990), 55 FR 27917. The Commission has Washington, D.C. 20549. Copies of the approved two extensions of the effectiveness of the privileges (‘‘Phlx OTC/UTP Pilot Joint OTC/UTP Plan. See Securities Exchange Act submission, all subsequent Program’’) for a six month period ending Release No. 34371 (July 13, 1994), 59 FR 37103 amendments, all written statements February 12, 1996. (order approving Amendment No. 1 to File No. S7– with respect to the proposed rule 24–89), and Securities Exchange Act Release No. 35221 (January 11, 1995), 60 FR 3886 (order change that are filed with the 6 17 CFR 200.30–3(a)(12). approving Amendment No. 2 to File No. S7–24–89, Commission, and all written 1 15 U.S.C. 78s(b)(1) (1988). thereby extending the effectiveness of the Joint communications relating to the 2 17 CFR 240.19b–4 (1991). OTC/UTP Plan through August 12, 1995). 42638 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices effectiveness of the Phlx OTC/UTP Pilot Washington, D.C. 20549. Copies of the upon which UTP is granted. As noted Program that provides for trading of submission, all subsequent above, in 1990, the Commission Nasdaq/NMS securities on the Exchange amendments, all written statements approved the Plan which provides for pursuant to UTP. Although the Chx has with respect to the proposed rule the collection, consolidation, and been trading Nasdaq/NMS securities change that are filed with the dissemination of quotation and since 1987, the Phlx obtained temporary Commission, and all written transaction information for Nasdaq/ approval of its rules to facilitate trading communications relating to the NMS securities listed on an exchange or Nasdaq/NMS securities in late 1992,4 proposed rule change between the traded on an exchange pursuant to a and began trading the securities in Commission and any person, other than grant of UTP.8 Transactions in securities February 1993. Currently, the Phlx has those that may be withheld from the pursuant to the Plan are and will temporarily ceased trading the securities public in accordance with the continue to be reported in the pending reorganization of its OTC/UTP provisions of 5 U.S.C. § 552, will be consolidated transaction reporting program. Because the Phlx intends to available for inspection and copying at system established under the Plan. reinstate OTC/UTP trading in the future, the Commission’s Public Reference The Commission has emphasized that the Phlx seeks an extension of the pilot Room. Copies of such filing will also be Phlx specialists trading Nasdaq/NMS program. available for inspection and copying of securities pursuant to the grant of UTP such filing will also be available for are subject to Plan requirements as well 2. Statutory Basis inspection and copying at the principal as the Phlx OTC/UTP Pilot Program and This proposal is consistent with the office of the Phlx. All submissions Phlx By-Laws and Rules, in general.9 Section 6(b)(5) of the Act and the rules should refer to File No. SR–PHLX–95– Moreover, the Commission has stated its and regulations promulgated 63 and should be submitted by intent to monitor any potential abuse of thereunder. Specifically, the proposal is September 6, 1995. the informational advantage that options calculated to promote just and equitable traders could acquire from the Phlx IV. Commission’s Findings and Order principles of trade and to protect equity floor with respect to securities Granting Accelerated Approval of investors and the public interest. It is traded under the Phlx OTC/UTP Pilot Proposed Rule Change also consistent with Section Program.10 These requirements and the 11A(a)(1)(C)(ii) and (iv) of the Act The Commission believes that the Commission’s intent to monitor for which assures fair competition among Phlx’s proposal to extend the abuses will continue in effect, brokers and dealers, among exchange effectiveness of the Phlx OTC/UTP Pilot particularly if the Phlx removes its markets, and between exchange markets Program and accompanying rules with temporary suspension of trading and markets other than exchange respect to UTP in OTC securities is pursuant to its OTC/UTP Program and markets, and promotes the practicability consistent with the requirements of the the Plan. of brokers executing investors’ orders in Act and the rules and regulations The Commission believes that it is the best market. thereunder applicable to a national appropriate to extend the Phlx OTC/ Due to the non-controversial nature of securities exchange.5 Specifically, the UTP Pilot Program through February 12, the Phlx OTC/UTP Pilot Program, Commission believes that the proposed 1996, while the Commission evaluates coupled with the impending lapse of the rule change is consistent with Sections the overall program for OTC/UTP and Phlx’s OTC/UTP privileges on August 6(b)(5), 11A and 12(f) of the Act.6 any enhancements or changes to the 12, 1995, the Phlx respectfully requests In 1985, the Commission published program that may be necessary to accelerated approval of this filing. its policy to extend UTP to national further the purposes of the Act. In the securities exchanges in certain OTC interim, however, the Commission B. Self-Regulatory Organization’s securities provided certain terms and continues to believe that the Phlx OTC/ Statement on Burden on Competition conditions were satisfied.7 The UTP Pilot Program, as limited by the The Phlx does not believe that the Commission’s policy stated that UTP Joint OTC/UTP Plan, generally furthers proposed rule change will be a burden approval would be conditioned, in part, the objectives of a national market on competition. on the approval of a plan to consolidate system and is consistent with the and disseminate exchange and OTC maintenance of fair and orderly markets C. Self-Regulatory Organization’s quotation data and transaction data and the protection of investors as Statement on Comments on the required by Sections 6(b)(5), 11A and Proposed Rule Change Received from 5 The Commission incorporates the findings with 12(f) of the Act. Members, Participants or Others respect to the Phlx OTC/UTP Pilot Program and its No written comments were either consistency with the Act previously made in V. Conclusion Securities Exchange Act Release No. 31672, id. solicited or received. 6 15 U.S.C. §§ 78f(b)(5), 78K–1 (1988), and 78l(f) For the reasons stated above, the Commission believes that it is III. Solicitation of Comments (1988) (as amended October 22, 1994). Section 6(b)(5) requires, among other things, that the rules appropriate to extend the Phlx OTC/ Interested persons are invited to of an exchange be designed to remove impediments UTP Pilot Program through February 12, submit written data, views and to and perfect the mechanism of a free and open market and a national market system, and, in 1996. arguments concerning the foregoing. general, to protect investors and the public interest. The Commission finds good cause for Persons making written submissions Section 11A provides, among other things, that it approving the proposed rule change should file six copies thereof with the is in the public interest and appropriate for the prior to the thirtieth day after the date Secretary, Securities and Exchange protection of investors to assure fair competition of publication of notice of filing thereof among brokers and dealers, among exchange Commission, 450 Fifth Street, N.W., markets, and between exchange markets and in the Federal Register. In light of the markets other than exchange markets. Section 12(f), previously scheduled expiration of the 4 See Securities Exchange Act Release No. 31672 as recently amended by the UTP Act of 1994, Phlx OTC/UTP Pilot Program on August (December 30, 1992), 58 FR 3054 (order approving provides, among other things, that exchanges may 12, 1995, the Commission believes that File No. SR–PHLX–92–04). The effectiveness of the extend UTP to securities that are registered, but not Phlx OTC/UTP Pilot Program has been extended listed on any exchange, provided that certain three times, most recently through August 12, 1995. conditions are met. 8 See note 3, supra. See Securities Exchange Act Release No. 35933 7 See Securities Exchange Act Release No. 22412 9 See note 4, supra. (July 3, 1995), 60 FR 36170. (September 16, 1985), 50 FR 38640. 10 Id. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42639 accelerated approval of the proposal is usually thin trading in the Security. The (2) Four antenna sites, called ground appropriate in order to allow the Phlx Company also believes money earth stations (GESs), collectively to continue to have rules in place for managers, taking a position in stock of known as the Wide Area Augmentation OTC/UTP trading. Further, the Phlx companies of our size, prefer to work System (WAAS). The WAAS will OTC/UTP Pilot Program and the with a specific market know and trust, receive, process, correct data from accompanying rules have been noticed rather than deal with an Amex Global Positioning System (GPS) previously in the Federal Register for specialist. Further, the Company satellites, and transmit navigation the full statutory period, and the believes that greater sponsorship is corrections to communication satellites. Commission received no comments on available in the Nasdaq/NMS through An aircraft equipped with a WAAS the proposal.11 market makers, and these market makers receiver will navigate using the signals It is therefore ordered, pursuant to are more likely to issue research reports from the communication satellites. This Section 19(b)(2)12 that the proposed rule on the Company. Overall, the Company satellite-based navigation system will change is hereby approved on a pilot believes that listing on the Nasdaq/NMS provide better navigation information to basis through February 12, 1996. will improve the visibility of the aircraft, thus enhancing safety. Senate For the Commission, by the Division of Company’s Security and enhance the Report 103–310 of the Committee on Market Regulation, pursuant to delegated corporate image. Appropriations, Department of authority.13 Any interested person may, on or Transportation and Related Agencies Margaret H. McFarland, before August 31, 1995, submit by letter Appropriations, fiscal year 1995, stated Deputy Secretary. to the Secretary of the Securities and that the WAAS schedule ‘‘should be [FR Doc. 95–20254 Filed 8–15–95; 8:45 am] Exchange Commission, 450 Fifth Street, accelerated to enable a quicker BILLING CODE 8010±01±M N.W., Washington, D.C. 20549, facts realization of what promises to be bearing upon whether the application significant benefits to aviation system has been made in accordance with the users.’’ Issuer Delisting; Notice of Application rules of the exchanges and what terms, The FAA is conducting a scoping To Withdraw From Listing and if any, should be imposed by the process for the programmatic EA and Registration; (Tridex Corp.; Common Commission for the protection of the four GES EAs. The scoping process Stock, No Par Value) File No. 1±5513 investors. The Commission, based on will consist of a 30-day period for the information submitted to it, will written comments. August 10, 1995. issue an order granting the application DATES: Written comments on the scope Tridex Corporation (‘‘Company’’) has after the date mentioned above, unless of the programmatic EA will be filed an application with the Securities the Commission determines to order a accepted at the address below until and Exchange Commission hearing on the matter. September 29, 1995. Comments (‘‘Commission’’), pursuant to Section submitted after the September 29 For the Commission, by the Division of 12(d) of the Securities Exchange Act of deadline will be considered to the 1934 (‘‘Act’’) and Rule 12d2–2(d) Market Regulation, pursuant to delegated authority. extent practicable. promulgated thereunder, to withdraw ADDRESSES: Written comments on the the above specified security (‘‘Security’’) Jonathan G. Katz, Secretary. scope of the programmatic EA may be from listing and registration on the sent to the FAA at the following [FR Doc. 95–20255 Filed 8–15–95; 8:45 am] American Stock Exchange, Inc. address: Federal Aviation (‘‘Amex’’). BILLING CODE 8010±01±M Administration, Satellite Program The reasons alleged in the application Office, ATTN: Ms. Susan Burmester, for withdrawing the Security from AND–510, 800 Independence Avenue, listing and registration include the DEPARTMENT OF TRANSPORTATION S.W., Washington, DC 20591. following: FOR FURTHER INFORMATION CONTACT: According to the Company, the Board Federal Aviation Administration Ms. Susan Burmester, Federal Aviation of Directors of the Company adopted Administration, (202) 358–5408. resolutions on July 19, 1995 to Notice of Intent (NOI) To Prepare a SUPPLEMENTARY INFORMATION: The FAA’s withdraw the Security from listing on Programmatic Environmental WAAS is a system consisting of the Amex and instead, to list such Assessment (EA) and Four Site- equipment and software which will Security on the National Association of Specific Environmental Assessments augment the existing U.S. Department of Securities Dealers Automated (EAs) for the Proposed National Wide Defense (DoD)-provided GPS Standard Quotations National Market System Area Augmentation System (WAAS) (‘‘Nasdaq/NMS’’). Positioning System (SPS). The WAAS The decision of the Board followed a AGENCY: Federal Aviation will provide a signal to aircraft to thorough study of the matter and was Administration (FAA , Department of support more precise navigation and based upon the belief that listing the Transportation (DOT). landing capabilities. Security on the Nasdaq/NMS will be ACTION: Notice of Intent to prepare a The GPS satellite data will be more beneficial to the Company’s Programmatic EA for four site-specific received and processed at widely stockholders than the present listing on EAs. dispersed sites, referred to as Wide Area the Amex for the following reasons. Reference Stations (WRSs). The WRS According to the Company, there seems SUMMARY: The Federal Aviation will transmit these data via existing to be a hesitance on the part of many Administration (FAA) announces its communication links to central data trading firms to trade or market the intent to prepare a programmatic processing sites, referred to as Wide Security on the Amex. This, the environmental assessment (EA) and four Area Master Stations (WMSs). The Company believes, has resulted in the site-specific environmental assessments WMSs will determine the integrity, (EAs) for the proposed construction and differential corrections, residual errors, 11See supra note 4. operation of the following: and ionospheric information for each 12 15 U.S.C. § 78s(b)(2) (1988). (1) A nationwide system of hardware monitored GPS satellite. Then, these 13 17 CFR 200–30–3(a)(12) (1991). and software, and calculations will be sent to the GESs. 42640 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices The GESs will transmit this information Two of the proposed GES sites will be in triplicate to the FAA at the following to communications satellites. The developed in the vicinity of Hampton, address: communication satellites will GA and in the vicinity of Palmdale– Federal Aviation Administration, rebroadcast the data for navigational use Rosamond, CA. Central Region, Airports Division, 601 by aircraft. The programmatic EA will include a E. 12th Street, Kansas City, MO 64106. Generally, a WRS will be composed of discussion of the proposed action and In addition, one copy of any computer processors, time alternatives, the affected environment, comments submitted to the FAA must synchronization equipment, and GPS potential impacts or consequences of be mailed or delivered to Mr. Paul receivers. It will require no more than the proposed action, and potential Frommelt, Chairman, Dubuque Airport 50 square feet within an existing FAA mitigation measures. Commission, Dubuque, Iowa, at the facility. Additionally, three GPS following address: Dubuque Regional Alternatives antennas will be installed on the roof of Airport, 11000 Airport Road, Dubuque, the facility. These antennas will be In addition to the proposed action, the Iowa. similar in size to existing roof mounted following alternatives will be Air carriers and foreign air carriers antennas, but will include a small dome considered in the programmatic EA: (1) may submit copies of written comments approximately 18 inches in diameter. enhancement of the existing navigation previously provided to the Dubuque A WMS will be composed of a WRS system, (2) the no action alternative Regional Airport, under section 158.23 and communication equipment that will under which the existing navigation of Part 158. connect all of the WRSs and GESs to the system would be maintained. FOR FURTHER INFORMATION CONTACT: WMSs. This equipment will require no Ellie Anderson, PFC Coordinator, FAA, Public Scoping more than 150 square feet within an Central Region, 601 E. 12th Street, existing FAA facility. The FAA is conducting a scoping Kansas City, MO 64106, (816) 426–4728. The proposed WAAS would be process for the programmatic EA and The application may be reviewed in composed of 29 sites at existing FAA the four GES EAs. The national scoping person at this same location. facilities and 4 GES sites. Five of these meeting for the programmatic EA will SUPPLEMENTARY INFORMATION: The FAA 29 sites will constitute the Functional address the overall WAAS architecture. proposes to rule and invites public Verification System (FVS): Atlantic City, This meeting will be held in the vicinity comment on the application to impose NJ; Bangor, ME; Dayton, OH; Oklahoma of Washington, DC on or about Tuesday, and use a PFC at Dubuque Regional City, OK; and Wilmington, NC. The FVS September 19. Further information Airport under the provisions of the will be the testbed for the WAAS. All regarding the programmatic EA and the Aviation Safety and Capacity Expansion sites are WRSs with the exception of four GES EAs will be announced in Act of 1990 (Title IX of the Omnibus Atlantic City and Oklahoma City, which national and local newspapers of Budget Reconciliation Act of 1990) are WMSs. Listed below are the general circulation. (Public Law 101–508) and Part 158 of the Federal Aviation Regulations (14 remaining 24 sites that would compose Issued in Washington, DC on August 11, the initial operational system for the 1995. CFR Part 158). WAAS. All sites are WRSs with the On August 4, 1995 the FAA James C. Johns, determined that the application to exception of Nashua and Palmdale, WAAS Project Manager, Satellite Program which are WMSs: impose and use the revenue from a PFC Office, AND–510, FAA Headquarters. submitted by the Dubuque Regional Albuquerque, NM [FR Doc. 95–20264 Filed 8–15–95; 8:45 am] Airport, Dubuque, Iowa, was Anchorage, AK BILLING CODE 4910±13±M substantially complete within the Auburn, WA requirements of section 158.25 of Part Aurora, IL 158. The FAA will approve or Billings, MT Notice of Intent To Rule on Application disapprove the application, in whole or Farmington, MN To Impose and Use the Revenue From in part, no later than November 17, Forth Worth, TX a Passenger Facility Charge (PFC) at 1995. Fremont, CA Dubuque Regional Airport, Dubuque, The following is a brief overview of Hampton, GA IA the application. Honolulu, HI Level of the proposed PFC: $3.00 Houston, TX AGENCY: Federal Aviation Administration, (FAA), DOT. Proposed charge effective date: February Indianapolis, IN 1, 1996 Jacksonville, FL ACTION: Notice of Intent to Rule on Proposed charge expiration date: Leesburg, VA Application. November 1, 1999 Longmont, CO Total estimated PFC revenue: $394,694 SUMMARY: The FAA proposes to rule and Memphis, TN Brief description of proposed Miami, FL invites public comment on the application to impose and use the project(s): Rwy 13/31 Rehabilitation; Nashua, NH acquire snow removal equipment Oberlin, OH revenue from a PFC at Dubuque Regional Airport under the provisions of (runway broom); replace emergency Olathe, KS generator; terminal area sidewalk Palmdale, CA the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the replacement; replace landside lighting Ronkonkoma, NY system; and reconstruct t-hangar taxi Salt Lake City, UT Omnibus Budget Reconciliation Act of 1990) (Public Law 101–508) and Part lane areas. San Juan, PR Class or classes of air carriers which 158 of the Federal Aviation Regulations The four proposed WAAS GES sites the public agency has requested not be (14 CFR Part 158). would be located on the east and west required to collect PFCs: None. coasts of the continental United States. DATES: Comments must be received on Any person may inspect the Two of the proposed GES sites would be or before September 15, 1995. application in person at the FAA office located at existing facilities in: ADDRESSES: Comments on this listed above under FOR FURTHER Whitinsville, MA and Brewster, WA. application may be mailed or delivered INFORMATION CONTACT. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42641 In addition, any person may, upon Applications to Become a Party to an modification request. Application request, inspect the application, notice Exemption. numbers with the suffix ‘‘P’’ denote a and other documents germane to the party to request. These applications SUMMARY: In accordance with the application in person at the Dubuque have been separated from the new Regional Airport. procedures governing the application for, and the processing of, exemptions applications for exemptions to facilitate Issued in Kansas City, Missouri on August from the Department of Transportation’s processing. 09, 1995. Hazardous Materials Regulations (49 DATES: Comments must be received on James W. Brunskill, CFR Part 107, Subpart B), notice is or before August 31, 1995. Acting Manager, Airports Division, Central hereby given that the Office of Region. Hazardous Materials Safety has received ADDRESS COMMENTS TO: Dockets Unit, [FR Doc. 95–20267 Filed 8–15–95; 8:45 am] the applications described herein. This Research and Special Programs BILLING CODE 4910±13±M notice is abbreviated to expedite Administration, U.S. Department of docketing and public notice. Because Transportation, Washington, DC 20590. the sections affected, modes of Comments should refer to the Research and Special Programs transportation, and the nature of application number and be submitted in Administration applications have been shown in earlier triplicate. If confirmation of receipt of Office of Hazardous Materials Safety; Federal Register publications, they are comments is desired, include a self- Notice of Applications for Modification not repeated here. Requests for addressed stamped postcard showing of Exemptions or Applications to modifications of exemptions (e.g. to the exemption number. provide for additional hazardous Become a Party to an Exemption FOR FURTHER INFORMATION CONTACT: materials, packaging design changes, AGENCY: Research and Special Programs additional mode of transportation, etc.) Copies of the application are available Administration, DOT. are described in footnotes to the for inspection in the Dockets Unit, ACTION: List of Applications for application number. Application Room 8426, Nassif Building, 400 7th Modification of Exemptions or numbers with the suffix ‘‘M’’ denote a Street SW., Washington, DC. Application Renewal of No. Applicant exemption 4354±M PPG Industries, Inc., Pittsburgh, PA (See Footnote 1) ...... 4354 7235±M BOC Gases, Murray Hill, NY (See Footnote 2) ...... 7235 8131±M NASA Washington, DC (See Footnote 3) ...... 8131 8692±M Mitsubishi International Corp., New York, NY (See Footnote 4) ...... 8692 9184±M The Carbide/Graphite Group, Inc., Louisville, KY (See Footnote 5) ...... 9184 9393±M Sexton Can Company, Inc., Martinsburg, WV (See Footnote 6) ...... 9393 10094±M Air Products & Chemicals, Inc., Allentown, PA (See Footnote 7) ...... 10094 10867±M Pacific Scientific, Durate, CA (See Footnote 8) ...... 10867 11248±M HAZMATPAC, Houston, TX (See Footnote 9) ...... 11248 11321±M E.I. du Pont de Nemours & Company, Inc., Wilmington, DE (See Footnote 10) ...... 11321 1 To modify the exemption to authorize continued use of plastic composite drums which do not meet the 80 psi hydrostatic pressure test and additional modifications per HM±181. 2 To modify the exemption to provide for an additional class of material in Division 4.3. 3 To modify the exemption to provide for an alternative service life of 25 years or 300 pressurizations for transporting oxygen in nonprescribed packagings. 4 To modify the exemption to provide for an alternative packing method on bulk bags used in transporting sodium persulfate. 5 To modify the exemption to provide for reusable semi-bulk bags for the 1,200 and 4,400 design for use in transporting Division 4.3 material. 6 To modify the exemption to provide for transportation of compressed gas, n.o.s., Division 2.2, in non-DOT specification steel cylinders. 7 To modify the exemption to provide for replacement linings on insulated tank car tanks for use in transporting Division 5.1 material. 8 To modify the exemption to provide for various design changes to non-DOT specification cylinders for use in transporting Division 2.2 mate- rial. 9 To modify the exemption to provide for an alternate type of absorbent material for use in specifically-designed combination packaging. 10 To modify the exemption to provide for MC 312, 330, 331 and 412 cargo tanks of SA 516 Gr 70 steel construction for use in transporting a Class 8 material. Application Parties to No. Applicant exemption 6626±P Red Ball Oxygen Co., Shreveport, LA ...... 6626 6670±P Air Products and Chemicals, Inc., Allentown, PA ...... 6670 6805±P Red Ball Oxygen Co., Shreveport, LA ...... 6805 7616±P Florida East Coast Railway Company, St. Augustine, FL ...... 7616 7887±P Luna Tech, Inc., Owens Cross Roads, AL ...... 7887 8006±P Esquire Canada, Inc., Port Robinson, Ontario, CN ...... 8006 8009±P Motorfuelers, Inc., Clearwater, FL ...... 8009 8554±P Gibson-IRECO, Inc., Duffield, VA ...... 8554 8627±P Nalco/Exxon Energy Chemicals, L.P., Sugar Land, TX ...... 8627 9184±P American Welding Products, L.L.C., Newport Beach, CA ...... 9184 9275±P Elizabeth Arden Co., Roanoke, VA ...... 9275 9275±P Fashion Fair Cosmetics, Chicago, IL ...... 9275 9689±P ANGUS Chemical Company, Buffalo Grove, IL ...... 9689 9723±P CMAX Transportation, Inc., Oklahoma City, OK ...... 9723 9769±P McCutcheon Enterprises, Inc., Apollo, PA ...... 9769 10001±P Red Ball Oxygen Co., Shreveport, LA ...... 10001 10094±P Continental Nitrogen & Resources Corp., Rosemount, MN ...... 10094 42642 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices Application Parties to No. Applicant exemption 10709±P Coastal Fluid Technologies, Inc., Abbeville, LA ...... 10709 10709±P Nalco/Exxon Energy Chemicals, L.P., Sugar Land, TX ...... 10709 10821±P Healthcare Waste Removal & Services, Inc., Pompano Beach, FL ...... 10821 10933±P Rollins CHEMPAK, Inc., Bridgeport, NJ ...... 10933 10975±P Boise Cascade Corporation, Boise, ID ...... 10975 11159±P Hawman Container Services, Holland Landing, Ontario, CN ...... 11159 11197±P Chem Coast, Inc., La Porte, TX ...... 11197 11197±P Westinghouse Electric Corporation, Pittsburgh, PA ...... 11197 11197±P Bostik, Inc., Middleton, MA ...... 11197 11197±P Cook Composites & Polymers Co., Kansas City, MO ...... 11197 11230±P ETI Explosives Technologies International, Inc., Wilmington, DE ...... 11230 11294±P Environmental Services of America, Inc., Ellington, CT ...... 11294 11432±P Schlumberger Well Services, Houston, TX ...... 11432 This notice of receipt of applications ACTION: List of Applications for DATES: Comments must be received on for modification of exemptions and for Exemptions. or before September 15, 1995. party to an exemption is published in ADDRESS COMMENTS TO: Dockets Unit, accordance with Part 107 of the SUMMARY: In accordance with the Research and Special Programs Hazardous Materials Transportations procedures governing the application Administration, U.S. Department of Act (49 U.S.C. 1806; 49 CFR 1.53(e)). for, and the processing of, exemptions Transportation, Washington, DC 20590. Issued in Washington, DC, on August 10, for the Department of Transportation’s Comments should refer to the 1995. Hazardous Materials Regulations (49 application number and be submitted in J. Suzanne Hedgepeth, CFR Part 107, Subpart B), notice is triplicate. If confirmation of receipt of Chief, Exemption Programs, Office of hereby given that the Office of comments is desired, include a self- Hazardous Materials Exemptions and Hazardous Materials Safety has received addressed stamped postcard showing Approvals. the applications described herein. Each the exemption application number. [FR Doc. 95–20309 Filed 8–15–95; 8:45 am] mode of transportation for which a BILLING CODE 4910±60±M particular exemption is requested is FOR FURTHER INFORMATION CONTACT: indicated by a number in the ‘‘Nature of Copies of the applications are available Application’’ portion of the table below Office of Hazardous Materials Safety; for inspection in the Dockets Unit, as follow: 1—Motor vehicle, 2—Rail Notice of Applications for Exemptions Room 8426, Nassif Building, 400 7th freight, 3—Cargo vessel, 4—Cargo Street, SW. Washington, DC. AGENCY: Research and Special Programs aircraft only, 5—Passenger-carrying Administration, DOT. aircraft. NEW EXEMPTIONS Application No. Applicant Regulation(s) affected Nature of exemption thereof 11442±N Union Tank Car Co., East Chi- 49 CFR 173.31 ...... To authorize an alternative retesting schedule for DOT cago, IN. 111A100W±6 tank cars. (Mode 2.) 11443±N Hercules Inc., Wilmington, DE ..... 49 CFR 173.225(e) ...... To authorize the transportation of Division 5.2 organic perodixes intermediate bulk containers equipped with the same pressure releases system as DOT±57 port- able tanks. (Mode 1.) 11513±N Thiokol Corp., Brigham City, UT .. 49 CFR 172.101 ...... To authorize the transportation cyclotetramethyle tetranitramine (HMX) dry, Division 1.1D containing less than 10 percent water transported in non-DOT speci- fication 25 lb. plastic bags overpacked in 21±C or UN approved container. (Mode 1.) 11518±N Petroleum Marketers Assoc. of 49 CFR 180.405(b), (c), (g), (h), To authorize an alternative testing and inspection proce- America, Arlington, VA. (j), 180.407(c), (d)(1), (e), (g), dure of small cargo tanks of 3,500 gallons or less car- (h), (i). rying petroleum products. (Mode 1.) 11519±N B&R Specialities Inc., Hyde Park, 49 CFR 172.101, Column 8.c, To authorize the transportation of regulated medical NY. 173.197. waste in polyethylene carts mounted on bases with roller coasters transported in specifically designed trucks. (Mode 1.) 11520±N Albemarle Corp., Baton Rouge, 49 CFR 173.249(b) ...... To authorize the one-time shipment of a partial load of LA. bromine, Class 8, PIH (approximately 754 gallons) in a 1788 gallon capacity nickel-clad DOT Specification MC±312 cargo tank. (Mode 1.) 115121±N City of Cincinnati, Cincinnati, OH . 49 CFR 174.67(i) and (j) ...... To authorize a tank car to stand with unloading connec- tions attached after unloading without the physical presence of an unloader. (Mode 2.) Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Notices 42643 NEW EXEMPTIONSÐContinued Application No. Applicant Regulation(s) affected Nature of exemption thereof 11522±N The American Waterways Opera- 49 CFR 176.905(k) ...... To authorize battery cables in (self-propelled) vehicles to tors, Seattle, WA. remain connected and stowed in closed freight con- tainers and transported on unmanned open-deck steel barges. (Mode 3.) 11523±N Bio-Lab, Inc. Conyers, GA ...... 49 CFR 172.407 ...... To authorize the transportation of palletized non-DOT specification high density polyethylene bottles of 5 pound capacity, containing calcium hypochlorite, hy- drated, Division 5.1 (Mode 1.) This notice of receipt of applications Comptroller of the Currency (OCC) Form Number: None. for new exemptions is published in hereby gives notice that it has sent to OMB Number: 1557–0014. accordance with Part 107 of the the Office of Management and Budget Affected Public: Businesses or other Hazardous Materials Transportations (OMB) for review under the Paperwork for-profit. Act (49 U.S.C. 1806; 49 CFR 1.53(e)). Reduction Act, an information Number of Respondents: 3,000 Issued in Washington, DC, on August 10, collection titled ‘‘Comptroller’s respondents. 1995. Corporate Manual’’. Total Annual Responses: 10,390 J. Suzanne Hedgepeth, DATES: Comments on this information responses. Chief, Exemption Programs, Office of collection are welcome and should be Average Hours Per Response: 2.16 Hazardous Materials Exemptions and submitted by September 15, 1995. hours. Approvals. ADDRESSES: A copy of the information Total Annual Burden Hours: 20,812 [FR Doc. 95–20310 Filed 8–15–95; 8:45 am] collection may be obtained by calling or hours. BILLING CODE 4910±60±M writing the OCC contact. OMB Reviewer: Milo Sunderhauf, SUPPLEMENTARY INFORMATION: In (202)395–7340, Paperwork Reduction accordance with the requirements of the Project 1557–0014, Office of Management and Budget, Room 10226, DEPARTMENT OF THE TREASURY Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35), the Office of the New Executive Office Building, Office of the Comptroller of the Comptroller of the Currency (OCC) has Washington, DC 20503. Currency sent to OMB an information collection OCC Contact: John Ference or Jessie for review under the Paperwork Gates, (202)874–5090, Legislative and Information Collection Submitted to Reduction Act as follows: Regulatory Activities Division (1557– OMB for Review 0014), Office of the Comptroller of the OMB Control Number 1557–0014 Currency, 250 E Street, SW, AGENCY: Office of the Comptroller of the Title: Comptroller’s Corporate Washington, DC 20219. Currency, Treasury. Manual. Comments: Comments regarding the ACTION: Notice of information collection Type of Review: Regular submission. information collection should be submitted to OMB for review and Description: The Comptroller’s addressed to both the OMB reviewer approval under the Paperwork Corporate Manual explains the OCC’s and the OCC contact listed above. Reduction Act of 1980. policies and procedures for the formation of a new national bank, entry Dated: August 9, 1995. SUMMARY: In accordance with the into the national banking system by Julie L. Williams, requirements of the Paperwork other institutions, and corporate Chief Counsel. Reduction Act of 1980 (44 U.S.C. expansion and structural changes by [FR Doc. 95–20053 Filed 8–15–95; 8:45 am] Chapter 35), the Office of the existing national banks. BILLING CODE 4810±33±P 42644 Sunshine Act Meetings Federal Register Vol. 60, No. 158 Wednesday, August 16, 1995 This section of the FEDERAL REGISTER Street entrance between 20th and 21st Board; (202) 452–3204. You may call contains notices of meetings published under Streets, NW., Washington, DC 20551. (202) 452–3207, beginning at the ``Government in the Sunshine Act'' (Pub. STATUS: Closed. approximately 5 p.m. two business days L. 94-409) 5 U.S.C. 552b(e)(3). before this meeting, for a recorded MATTERS TO BE CONSIDERED: announcement of bank and bank 1. Personnel actions (appointments, holding company applications BOARD OF GOVERNORS OF THE FEDERAL promotions, assignments, reassignments, and scheduled for the meeting. RESERVE SYSTEM salary actions) involving individual Federal Reserve System employees. Dated: August 11, 1995. TIME AND DATE: 12:00 noon, Monday, 2. Any items carried forward from a William W. Wiles, August 21, 1995. previously announced meeting. Secretary of the Board. PLACE: William McChesney Martin, Jr. CONTACT PERSON FOR MORE INFORMATION: [FR Doc. 95–20360 Filed 8–14–95; 8:45 am] Federal Reserve Board Building, C Mr. Joseph R. Coyne, Assistant to the BILLING CODE 6210±01±M 42645 Corrections Federal Register Vol. 60, No. 158 Wednesday, August 16, 1995 This section of the FEDERAL REGISTER the seventh and eighth lines, ‘‘[60 days Thursday, August 10, 1995, make the contains editorial corrections of previously from date of publication].’’ should read following corrections: published Presidential, Rule, Proposed Rule, ‘‘October 10, 1995’’. and Notice documents. These corrections are 1. On page 40819, in the third 2. On the same page, in the same column, in the second full paragraph, in prepared by the Office of the Federal column, in the same paragraph, in the Register. Agency prepared corrections are the sixth and seventh lines, ‘‘[60 days last line, ‘‘[75 days from date of issued as signed documents and appear in from date of publication].’’ should read publication]).’’ should read ‘‘October 24, the appropriate document categories ‘‘October 10, 1995’’. elsewhere in the issue. 1995’’. 2. On the same page, in the same BILLING CODE 1505±01±D column, in the same paragraph, in the last line, ‘‘[75 days from date of DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE publication]).’’ should read ‘‘October 24, Foreign-Trade Zones Board 1995’’. Foreign-Trade Zones Board [Docket 39-95] BILLING CODE 1505±01±D [Docket 40-95] Foreign-Trade Zone 15, Kansas City, Missouri; Application for Expansion Foreign-Trade Zone 2, New Orleans, LA Proposed Foreign-Trade Subzone Correction BP Exploration & Oil Inc. (Oil Refinery In notice document 95–19822 Complex) New Orleans, Louisiana, appearing on page 40820 in the issue of Area Thursday, August 10, 1995, make the Correction following corrections: 1. On page 40820, in the second In notice document 95–19823 column, in the fifth full paragraph, in appearing on page 40819 in the issue of federal register August 16,1995 Wednesday Rules Federal AcquisitionRegulations;Final 48 CFRPart1,etal. Space Administration National Aeronauticsand Administration General Services Department ofDefense Part II 42647 42648 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations DEPARTMENT OF DEFENSE and National Aeronautics and Space FOR FURTHER INFORMATION CONTACT: Administration (NASA). The team leader whose name appears in GENERAL SERVICES relation to each FAR case or subject ACTION: Summary presentation of final ADMINISTRATION rules. area. For general information, contact the FAR Secretariat, Room 4037, GS NATIONAL AERONAUTICS AND SUMMARY: This document serves to Building, Washington, DC, 20405 (202) SPACE ADMINISTRATION introduce the final rules which follow 501–4755. Please cite FAC 90–31 and and which comprise Federal FAR case number(s). 48 CFR Chapter 1 Acquisition Circular (FAC) 90–31. The SUPPLEMENTARY INFORMATION: Federal [Federal Acquisition Circular 90±31] Federal Acquisition Regulatory Council Acquisition Circular 90–31 amends the has agreed to issue FAC 90–31 to amend Federal Acquisition Regulation (FAR) as Federal Acquisition Regulation; the Federal Acquisition Regulation specified below: Introduction of Miscellaneous (FAR). Amendments DATES: For effective dates, see AGENCIES: Department of Defense (DOD), individual documents following this General Services Administration (GSA), one. Item Subject FAR case Team leader I Consolidation and Revision of the Authority to Examine 94±740 Tucciarone (703) 767±2270 Records. II Contract Award Implementation ...... 94±701 Rider (703) 614±1634 III Penalties on Unallowable Indirect Costs ...... 94±751 Belton (703) 602±2357 IV Implementation of Various Cost Principle Provisions ...... 94±754 Belton (703) 602±2357 V Entertainment, Gift, and Recreation Costs for Contractor 94±750 Belton (703) 602±2357 Employees. VI Contractor Overhead Certification ...... 94±752 Belton (703) 602±2357 VII Technical Amendments. Case Summaries establishing or maintaining alternative Item IV—Implementation of Various For the actual revisions and/or sources of supplies or services; (3) Cost Principle Provisions (FAR Case amendments to these FAR cases, refer to permits use of other than full and open 94–754) the specific item number and subject set competition to acquire expert services This final rule implements Section forth in the documents following these for litigation; (4) places limitations on 2101 of Pub. L. 103–355. The rule adds item summaries. the use of other than full and open the costs of lobbying the legislative body competition when authorized or of a political subdivision of a state to the Item I—Consolidation and Revision of required by statute; (5) clarifies approval list of unallowable costs; adds the cost the Authority to Examine Records (FAR requirements for written justifications of ‘‘conventions’’ to the costs to be Case 94–740) for other than full and open clarified in the cost principles; and This final rule implements Sections competition; (6) revises procedures for expands the coverage to the Coast Guard 2201(a), 2251(a), 4102(c), and 4103(d) of specifying evaluation factors and and the National Aeronautics and Space the Federal Acquisition Streamlining subfactors in solicitations, for Administration. Section 2151 amends Act of 1994 (Pub. L. 103–355). The rule conducting written or oral discussions, 41 U.S.C. 256 to include all the (1) permits contractors to store records and for providing postaward notices and provisions of 10 U.S.C. 2324, as in electronic form; (2) restricts debriefings to offerors; (7) requires a amended by Section 2101. Therefore, contracting officers from requesting a written determination before providing the provisions are made generally preaward audit of indirect costs if the for evaluation of options in sealed bid applicable to all other executive results of a recent audit are available; (3) procurements; (8) permits nonprofit agencies. The new FAR language, with deletes the clause at 52.215–1, agencies for the blind or severely only minor variations, was transferred Examination of Records by Comptroller disabled to use Government supply from the current coverage in the Defense General; (4) and revises the clauses at sources in performing contracts under Federal Acquisition Regulation 52.214–26, Audit and Records—Sealed the Javits-Wagner-O’Day Act; and (9) Supplement. Bidding, and 52.215–2, Audit and allows award without discussion to Item V—Entertainment, Gift, and Records—Negotiation, to provide for other than the lowest overall cost Recreation Costs for Contractor examination of records by the offeror. Employees (FAR Case 94–750) Comptroller General. Item III—Penalties on Unallowable This rule finalizes the interim rule Item II—Contract Award Indirect Costs (FAR Case 94–751) published in FAC 90–25. The rule Implementation (FAR Case 94–701) implements Section 2192 of Pub. L. This final rule implements Sections This final rule implements Sections 103–355 to revise the cost principles 1002, 1003, 1005, 1011, 1012, 1013, 2101 and 2151 of Pub. L. 103–355. The governing entertainment, gift, and 1014, 1052, 1053, 1055, 1061, 1062, rule contains procedures for the recreation costs for contractor 1063, 1064, 1555, 7203, and 10004 of assessment of penalties on unallowable employees. The final rule differs from Pub. L. 103–355. The rule (1) requires indirect costs under contracts exceeding the interim rule in that it (1) clarifies agencies to report additional $500,000. These procedures are that gifts do not include certain information on procurements exceeding essentially the same as those contained employee performance and achievement $25,000; (2) expands the criteria for in the Defense FAR Supplement. awards; (2) clarifies the restrictions Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42649 pertaining to entertainment and 48 CFR Parts 1, 4, 14, 15, 25, 50, and Section 2251(a) of the Act recreation costs; and (3) eliminates the 52 consolidates the audit rights for civilian requirement that certain costs are agencies and conforms those rights with allowable only if the net amount per [FAC 90±31; FAR Case 94±740; Item I] the provisions in 10 U.S.C. Section 2313 employee is reasonable. This final rule RIN 9000±AG24 to ensure identical audit authorities for replaces the interim rule in its entirety both DOD and civilian agencies. for any contracts containing the interim Federal Acquisition Regulation; Sections 2201(a) and 2251(a) both rule. Thus, the provisions of the interim Consolidation and Revision of the discuss subpoena authorities. rule will not apply to costs incurred Authority To Examine Records By its terms, the Act at Sections under any contract under any 2201(a) and 2251(a) provides that all AGENCY: circumstances. Department of Defense (DOD), cost-reimbursement, incentive, time- General Services Administration (GSA), and-materials, labor-hour or price- Item VI—Contractor Overhead and National Aeronautics and Space redeterminable subcontracts will be Certification (FAR Case 94–752) Administration (NASA). subject to audit. FAR 52.215–2(g), ACTION: Final rule. This final rule implements Section therefore, requires the flowdown of the Audit and Records—Negotiation clause 2151 of Pub. L. 103–355. The rule SUMMARY: This final rule is issued contains procedures for obtaining into all subcontracts of these types and pursuant to the Federal Acquisition into subcontracts when cost or pricing contractor certification of a proposal to Streamlining Act of 1994, Public Law establish or modify billing rates or to data are required, or when cost 103–355 (the Act). The Federal performance reports are required. This establish final indirect cost rates. These Acquisition Regulatory Council is procedures are essentially the same as rule, however, exempts from the amending the Federal Acquisition flowdown requirement all subcontracts those contained in the Defense FAR Regulation (FAR) to implement Sections Supplement. below the simplified acquisition 2201(a), 2251(a), 4102(c) and 4103(d) of threshold. This conforms the audit Dated: August 7, 1995. the Act. This regulatory action was rights at the subcontract level with those Edward C. Loeb, subject to Office of Management and at the prime contract level. Deputy Project Manager for the Budget review under Executive Order An Alternate III was added to the Implementation of the Federal Acquisition 12866, dated September 30, 1993. clause at FAR 52.215–2 to provide for Streamlining Act of 1994. EFFECTIVE DATE: October 1, 1995. waiver of the right to examination of Federal Acquisition Circular FOR FURTHER INFORMATION CONTACT: records by the Comptroller General. Mr. Daniel J. Tucciarone at (703) 767– B. Regulatory Flexibility Act [Number 90–31] 2270 in reference to this FAR case. For general information, contact the FAR The Department of Defense, the Federal Acquisition Circular (FAC) General Services Administration, and 90–31 is issued under the authority of Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501–4755. the National Aeronautics and Space the Secretary of Defense, the Administration certify that this final Administrator of General Services, and Please cite FAC 90–31, FAR case 94– 740. rule will not have a significant the Administrator for the National economic impact on a substantial Aeronautics and Space Administration. SUPPLEMENTARY INFORMATION: number of small entities within the Unless otherwise specified, all A. Background meaning of the Regulatory Flexibility Federal Acquisition Regulation (FAR) Act, 5 U.S.C. 601, et seq., because most and other directive material contained The Federal Acquisition Streamlining contracts awarded to small businesses in FAC 90–31 is effective October 1, Act of 1994, Pub. L. 103–355 (the Act), are awarded competitively on a firm- 1995, except for Item VII which is provides authorities that streamline the fixed-price basis and, therefore, are not effective August 16, 1995. FAC Items I acquisition process and minimize subject to audit requirements. through VI are applicable for burdensome government-unique C. Paperwork Reduction Act solicitations issued on or after October requirements. Major changes that can be 1, 1995. Contracting officers may, at expected in the acquisition process as a The Paperwork Reduction Act does their discretion, include the provisions result of the Act’s implementation not apply because the changes to the and clauses in FAC Items I through VI include changes in the areas of FAR do not impose additional in solicitations issued before October 1, Commercial Item Acquisition, the Truth recordkeeping or information collection 1995, for contracts expected to be in Negotiations Act, and introduction of requirements, or additional collections awarded on or after October 1, 1995. the Federal Acquisition Computer of information from offerors, Network. contractors, or members of the public Dated: August 3, 1995. Title 2, Subtitle C of the Act is which require the approval of the Office Eleanor R. Spector, entitled Audit and Access to Records. of Management and Budget under 44 Director, Defense Procurement. Section 2201(a) of the act merges the U.S.C. 3501, et seq. For civilian agency Dated: August 3, 1995. audit provision of TINA (10 U.S.C. procurements, recordkeeping is reduced Ida M. Ustad, 2306a) and the audit coverage in 10 due to the higher cost or pricing data U.S.C. Section 2313 into a single Associate Administrator for Acquisition threshold. Policy, General Services Administration. comprehensive section at 10 U.S.C. 2313. Section 2201(a) includes D. Public Comments Dated: August 7, 1995. subsections that: (1) limit obtaining A proposed rule was published in the Deidre A. Lee, preaward information when the results Federal Register at 59 FR 66408, Associate Administrator for Procurement, of a recent audit are already available, December 23, 1994. During the public National Aeronautics & Space (2) allow a contractor to store original comment period, 11 comments were Administration. records in electronic form, (3) allow the received. Comments were also received [FR Doc. 95–19857 Filed 8–15–95; 8:45 am] use of images as original records, and (4) during two agency comment periods. BILLING CODE 6820±EP±M provide a new definition of records. Changes were made to the proposed rule 42650 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations to achieve clearer, more concise electronic form unless they contain (c) In facilities contracts, the wording based on these comments. significant information not shown on contracting officer shall use the clause the record copy. Original records need with its Alternate I. In cost- List of Subjects in 48 CFR Parts 1, 4, 14, not be maintained or produced in an reimbursement contracts with 15, 25, 50, and 52 audit if the contractor or subcontractor educational institutions and other Government procurement. provides photographic or electronic nonprofit organizations, the contracting Dated: August 7, 1995. images of the original records and meets officer shall use the clause with its Edward C. Loeb, the following requirements: Alternate II. If the examination of (1) The contractor or subcontractor records by the Comptroller General is Deputy Project Manager for the has established procedures to ensure Implementation of the Federal Acquisition waived in accordance with 25.901, the Streamlining Act of 1994. that the imaging process preserves contracting officer shall use the clause accurate images of the original records, with its Alternate III. Therefore, 48 CFR Parts 1, 4, 14, 15, including signatures and other written 8. Section 15.805–5 is amended in 25, 50, and 52 are amended as set forth or graphic images, and that the imaging paragraph (a)(1) introductory text by below: process is reliable and secure so as to inserting after the first sentence the 1. The authority citation for 48 CFR maintain the integrity of the records. following: Parts 1, 4, 14, 15, 25, 50, and 52 (2) The contractor or subcontractor continues to read as follows: maintains an effective indexing system 15.805±5 Field pricing support. Authority: 40 U.S.C. 486(c); 10 U.S.C. to permit timely and convenient access (a)(1) * * * The contracting officer chapter 137; and 42 U.S.C. 2473(c). to the imaged records. should contact the cognizant audit (3) The contractor or subcontractor office to determine the existence of PART 1ÐFEDERAL ACQUISITION retains the original records for a audits addressing proposed indirect REGULATIONS SYSTEM minimum of one year after imaging to costs. In accordance with 41 U.S.C. permit periodic validation of the 254d and 10 U.S.C. 2313, the 1.106 [Amended] imaging systems. contracting officer shall not request a 2. Section 1.106 is amended under the * * * * * preaward audit of such indirect costs ‘‘FAR Segment’’ and ‘‘OMB Control unless the information available from Number’’ headings by removing 4.706 through 4.706±3 [Removed] any existing audit completed within the ‘‘52.215–1’’ and ‘‘9000–0034’’. 5. Section 4.706 is removed and preceding 12 months is considered reserved, and sections 4.706–1 through inadequate for determining the PART 4ÐADMINISTRATIVE MATTERS 4.706–3 are removed. reasonableness of the proposed indirect 3. Section 4.702 is amended by costs. * * * PART 14ÐSEALED BIDDING revising paragraph (a) to read as follows: * * * * * 6. Section 14.201–7 is amended by 4.702 Applicability. revising paragraph (a) to read as follows: PART 25ÐFOREIGN ACQUISITION (a) This subpart applies to records 9. Section 25.000 is amended by generated under contracts that contain 14.201±7 Contract clauses. revising the last sentence to read as one of the following clauses: (a) When contracting by sealed follows: (1) Audit and Records—Sealed bidding, the contracting officer shall Bidding (52.214–26). insert the clause at 52.214–26, Audit 25.000 Scope of part. (2) Audit and Records—Negotiation and Records—Sealed Bidding, in ** * This part also provides policies (52.215–2). solicitations and contracts if the and procedures pertaining to * * * * * contract amount is expected to exceed international agreements, customs and 4. Section 4.703 is amended as the threshold at 15.804–2(a)(1) for duties, the clause at 52.215–2, Audit follows: submission of cost or pricing data. and Records—Negotiation, and use of a. In paragraph (a) by removing the * * * * * local currency for payment. phrase ‘‘books, records, documents,’’ 10. Section 25.901 is amended by and inserting in its place ‘‘records, PART 15ÐCONTRACTING BY revising the section heading and which includes books, documents, NEGOTIATION paragraphs (b), (c), (d)(2), (d)(3), and accounting procedures and practices, 7. Section 15.106–1 is removed and (d)(5) to read as follows: and other data, regardless of type and 15.106–2 is redesignated as 15.106–1 25.901 Omission of audit clause. regardless of whether such items are in and revised to read as follows: written form, in the form of computer * * * * * data, or in any other form,’’; 15.106±1 Audit and RecordsÐNegotiation (b) Policy. As required by 10 U.S.C. b. In paragraph (b) introductory text clause. 2313, 41 U.S.C. 254d, and 15.106–1(b), and the first sentence of (b)(2) by (a) This subsection implements 10 the contracting officer shall consider for removing the word ‘‘documents’’ and U.S.C. 2313, 41 U.S.C. 254d, and OMB use in negotiated contracts with foreign inserting in its place ‘‘records’’; Circular No. A–133. contractors, whenever possible, the c. Revising paragraph (c); and (b) The contracting officer shall, if basic clause at 52.215–2, Audit and d. Removing paragraph (d) and contracting by negotiation, insert the Records—Negotiation, which authorizes redesignating paragraph ‘‘(e)’’ as clause at 52.215–2, Audit and Records— examination of records by the paragraph ‘‘(d)’’. The revised text reads Negotiation, in solicitations and Comptroller General. Use of the clause as follows: contracts except those (1) not exceeding with Alternate III should be approved the simplified acquisition threshold in only after the contracting agency, having 4.703 Policy. Part 13; or (2) for utility services at rates considered such factors as alternate * * * * * not exceeding those established to apply sources of supply, additional cost, and (c) Nothing in this section shall be uniformly to the general public, plus time of delivery, has made all construed to preclude a contractor from any applicable reasonable connection reasonable efforts to include the basic duplicating or storing original records in charge. clause. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42651 (c) Conditions for use of Alternate III. accuracy, completeness, and currency of the contract. This right of examination shall The contracting officer may use the cost or pricing data, shall have the right to include inspection at all reasonable times of clause at 52.215–2, Audit and Records— examine and audit all of the Contractor’s the Contractor’s plants, or parts of them, Negotiation, with its Alternate III in records, including computations and engaged in performing the contract. projections, related to— (c) Cost or pricing data. If the Contractor contracts with foreign contractors— (1) The proposal for the modification; has been required to submit cost or pricing (1) If the agency head, or designee, (2) The discussions conducted on the data in connection with any pricing action determines, with the concurrence of the proposal(s), including those related to relating to this contract, the Contracting Comptroller General, that waiver of the negotiating; Officer, or an authorized representative of the right to examination of records by the (3) Pricing of the modification; or Contracting Officer, in order to evaluate the Comptroller General will serve the (4) Performance of the modification. accuracy, completeness, and currency of the public interest; or (c) Comptroller General. In the case of cost or pricing data, shall have the right to (2) If the contractor is a foreign pricing any modification, the Comptroller examine and audit all of the Contractor’s General of the United States, or an authorized records, including computations and government or agency thereof or is projections, related to— precluded by the laws of the country representative, shall have the same rights as specified in paragraph (b) of this clause. (1) The proposal for the contract, involved from making its records, as (d) Availability. The Contractor shall make subcontract, or modification; defined at 4.703(a), available for available at its office at all reasonable times (2) The discussions conducted on the examination, and the agency head, or the materials described in reproduction, until proposal(s), including those related to designee, determines, after taking into 3 years after final payment under this negotiating; account the price and availability of the contract, or for any other period specified in (3) Pricing of the contract, subcontract, or property or services from United States Subpart 4.7 of the Federal Acquisition modification; or sources, that waiver of the right to Regulation (FAR). FAR Subpart 4.7, (4) Performance of the contract, Contractor Records Retention, in effect on the subcontract or modification. examination of records by the (d) Comptroller General—(1) The Comptroller General best serves the data of this contract, is incorporated by reference in its entirety and made a part of Comptroller General of the United States, or public interest. this contract. an authorized representative, shall have (d) * * * (1) If this contract is completely or partially access to and the right to examine any of the (2) Describe the efforts to include the terminated, the records relating to the work Contractor’s directly pertinent records basic clause; terminated shall be made available for 3 involving transactions related to this contract (3) State the reasons for the years after any resulting final termination or a subcontract hereunder. contractor’s refusal to include the basic settlement. (2) This paragraph may not be construed to clause; (2) Records pertaining to appeals under the require the Contractor or subcontractor to Disputes clause or to litigation or the create or maintain any record that the * * * * * settlement of claims arising under or relating Contractor or subcontractor does not (5) Determine that it will serve the to the performance of this contract shall be maintain in the ordinary course of business interest of the United States to use the made available until disposition of such or pursuant to a provision of law. clause with its Alternate III. appeals, litigation, or claims. (e) Reports. If the Contractor is required to (e) The Contractor shall insert a clause furnish cost, funding, or performance reports, PART 50ÐEXTRAORDINARY containing all the provisions of this clause, the Contracting Officer or an authorized CONTRACTUAL ACTIONS including this paragraph (e), in all representative of the Contracting Officer shall subcontracts expected to exceed the have the right to examine and audit the 50.307 [Amended] threshold in FAR 15.804–2(a)(1) for supporting records and materials, for the 11. Section 50.307 is amended in submission of cost or pricing data. purpose of evaluating (1) the effectiveness of paragraph (b) by removing ‘‘52.215–1, (End of clause) the Contractor’s policies and procedures to produce data compatible with the objectives Examination of Records by Comptroller 52.215±1 [Reserved] of these reports and (2) the data reported. General’’ and inserting in its place (f) Availability. The Contractor shall make ‘‘52.215–2, Audit and Records— 13. Section 52.215–1 is removed and available at its office at all reasonable times Negotiation’’. reserved. the records, materials, and other evidence 14. Section 52.215–2 is revised to read described in paragraphs (a), (b), (c), (d), and PART 52ÐSOLICITATION PROVISIONS as follows: (e) of this clause, for examination, audit, or AND CONTRACT CLAUSES reproduction, until 3 years after final 52.215±2 Audit and RecordsÐNegotiation. payment under this contract or for any 12. Section 52.214–26 is revised to As prescribed in 15.106–1(b), insert shorter period specified in Subpart 4.7, read as follows: the following clause: Contractor Records Retention, of the Federal Acquisition Regulation (FAR), or for any 52.214±26 Audit and RecordsÐSealed Audit and Records—Negotiation (Oct 1995) longer period required by statute or by other Bidding. (a) As used in this clause, records includes clauses of this contract. In addition— As prescribed in 14.201–7(a), books, documents, accounting procedures (1) If this contract is completely or partially inserting the following clause: and practices, and other data, regardless of terminated, the records relating to the work type and regardless of whether such items are terminated shall be made available for 3 Audit and Records—Sealed Bidding (Oct in written form, in the form of computer data, years after any resulting final termination 1995) or in any other form. settlement; and (a) As used in this clause, records includes (b) Examination of costs. If this is a cost- (2) Records relating to appeals under the books, documents, accounting procedures reimbursement, incentive, time-and- Disputes clause or to litigation or the and practices, and other data, regardless of materials, labor-hour, or price redeterminable settlement of claims arising under or relating type and regardless of whether such items are contract, or any combination of these, the to this contract shall be made available until in written form, in the form of computer data, Contractor shall maintain and the such appeals, litigation, or claims are finally or in any other form. Contracting Officer, or an authorized resolved. (b) Cost or pricing data. If the Contractor representative of the Contracting Officer, (g) The Contractor shall insert a clause has been required to submit cost or pricing shall have the right to examine and audit all containing all the terms of this clause, data in connection with the pricing of any records and other evidence sufficient to including this paragraph (a), in all modification to this contract, the Contracting reflect properly all costs claimed to have subcontracts under this contract that exceed Officer, or an authorized representative of the been incurred or anticipated to be incurred the simplified acquisition threshold in FAR Contracting Officer, in order to evaluate the directly or indirectly in performance of this Part 13, and— 42652 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations (1) That are cost-reimbursement, incentive, oral discussions, and for providing dispute involving the Federal time-and-materials, labor-hour, or price- postaward notices and debriefing to Government as an exception to use of redeterminable type or any combination of offerors, (7) require a determination that full and open competition. these; an option is likely to be exercised before (Implementation at FAR 6.302–3.) (2) For which cost or pricing data are Section 1055 also amended 41 U.S.C. required; or providing for evaluation of sealed bid (3) That require the subcontractor to options, (8) allow nonprofit agencies for 416(c) and 15 U.S.C. 637(c) to provide furnish reports as discussed in paragraph (e) the blind or severely disabled to use an exception to the publication of of this clause. Government supply sources in notices in the Commerce Business The clause may be altered only as performing certain Javits-Wagner-O’Day Daily for acquisition of expert necessary to identify properly the contracting contracts, and (9) make procedures for services. (Implementation at FAR parties and the Contracting Officer under the award without discussion the same for 5.201, 5.202, 5.301, and 6.302–3.) Government prime contract. Department of Defense and civilian —Sections 1011 and 1061 amend 10 (End of clause) agencies. This regulatory action was U.S.C. 2305(a) and 41 U.S.C. 253a and Alternate I (OCT 1995). As prescribed in subject to Office of Management and 253b to (1) Make procedures for 15.106–1(c), in facilities contracts, add the Budget review under Executive Order award of contracts without discussion following sentence at the end of paragraph 12866, dated September 30, 1993. comparable in Department of Defense (b) of the basic clause: EFFECTIVE DATE: October 1, 1995. and civilian agencies, (2) require The obligations and rights specified in this solicitations for competitive proposals paragraph shall extend to the use of, and FOR FURTHER INFORMATION CONTACT: Ms. Melissa Rider, Contract Award to include all significant factors and charges for the use of, the facilities under this subfactors and whether they are more contract. Team Leader, at (703) 614–1634 in Alternate II (OCT 1995). As prescribed in reference to this FAR case. For general important, of equal importance or less 15.106–1(c), in cost-reimbursement contracts information, contact the FAR important than cost or price, (3) with educational and other non-profit Secretariat, Room 4037, GS Building, permit agencies to disclose numerical institutions, add the following paragraph (h) Washington, DC 20405 (202) 501–4755. weights assigned to evaluation factors to the basic clause: at their discretion, and (4) allow Please cite FAC 90–31, FAR case 94– (h) The provisions of OMB Circular No. A– award without discussion to other 701. 133, ‘‘Audits of Institutions of Higher than the lowest overall cost offeror. Learning and Other Nonprofit Institutions,’’ SUPPLEMENTARY INFORMATION: (Implementation at FAR 15.406–5, apply to this contract. A. Background 15.407, 15.605, 15.610, and 52.215– Alternate III (OCT 1995). As prescribed in 16.) 15.106–1(c), delete paragraph (d) of the basic The Federal Acquisition Streamlining —Sections 1012 and 1062 amend 10 clause and redesignate the remaining Act of 1994, Pub. L. 103–355 (the Act), paragraphs accordingly. U.S.C. 2305(a) and 41 U.S.C. 253a to provides authorities that streamline the require a determination that it is [FR Doc. 95–19858 Filed 8–15–95; 8:45 am] acquisition process and minimize likely that an option will be exercised BILLING CODE 6820±EP±M burdensome Government-unique before providing for evaluation of requirements. Major changes that can be prices of options in solicitations for expected in the acquisition process as a contracts awarded using sealed bid 48 CFR Parts 2, 4, 5, 6, 14, 15, 17, 19, result of the Act’s implementation procedures. (Implementation at FAR 25, 36, 51 and 52 include changes in the areas of 17.202 and 17.208.) [FAC 90±31; FAR Case 94±701; Item II] Commercial Item Acquisition, the Truth —Sections 1013 and 1063 amend 10 in Negotiations Act, and introduction of U.S.C. 2305(b) and 41 U.S.C. 253b to RIN 9000±AG39 the Federal Acquisition Computer require, within three days of contract Network. award, notification to unsuccessful Federal Acquisition Regulation; This notice announces FAR revisions offerors that a contract has been Contract Award Implementation developed under FAR Case 94–701, awarded and to allow electronic AGENCIES: Department of Defense (DOD), Contract Award Implementation, which transmission of the notice. General Services Administration (GSA), implements the following sections of (Implementation at FAR 2.101, and National Aeronautics and Space the Act: 14.408–1, 14.409–1, 15.1002, 15.1003, Administration (NASA). —Sections 1002 and 1052 amend 10 25.405, and 36.304.) ACTION: Final rule. U.S.C. 2304(b) and 41 U.S.C. 253(b) —Sections 1014 and 1064 amend 10 to—(1) Ensure the continuous U.S.C. 2305(b) and 41 U.S.C. 253b to SUMMARY: This final rule is issued availability of a reliable source of (1) Allow offerors to request a pursuant to the Federal Acquisition supply; (2) satisfy projected needs debriefing within three days of receipt Streamlining Act of 1994 to (1) identify based on a history of high demand; of notice of award and require new Federal Procurement Data System and (3) satisfy a critical need for agencies, to the maximum extent reporting requirements, (2) expand the medical, safety, or emergency practicable, to conduct the debriefings reasons for establishing or maintaining supplies, as reasons for establishing or within five days, and (2) specify alternative sources of supplies or maintaining alternative sources. minimum requirements for content of services, (3) allow acquisition of expert (Implementation at FAR 6.202.) the debriefings. (Implementation at services to support litigation by other —Sections 1003 and 1053 amend 10 FAR 15.1001, 15.1004, 36.607, and than full and open competition and U.S.C. 2304(f)(1)(B)(i) and 41 U.S.C. 52.215–16.) provide an exception to synopsis 253(f)(1)(B)(i) to clarify the approval —Section 1555 amends 40 U.S.C. 481 to requirements, (4) clarify procedures for authority for use of other than full and allow nonprofit agencies for the blind award to a source identified in a statute, open competition. (Implementation at or severely disabled providing (5) clarify approval authority for use of FAR 6.304.) supplies or services under a Javitts- other than full and open competition, —Sections 1005 and 1055 amend 10 Wagner-O’Day Act contract to use (6) revise procedures for use of source U.S.C. 2304(c)(3) and 41 U.S.C. 253(c) Government supply sources in selection evaluation factors in to add the acquisition of expert performing the contract. solicitations, for conducting written or services for use in any litigation or (Implementation at FAR 51.101 and Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42653 51.102.) Other parts of Section 1555 List of Subjects in 48 CFR Parts 2, 4, contract actions as specified in are being implemented separately by 5, 6, 14, 15, 17, 19, 25, 36, 51 and 52 paragraph (b) of this section. GSA (see proposed rule of April 7, * * * * * Government procurement. 1995, 60 FR 17764). 5. Section 5.202 is amended at the —Section 7203 amends 10 U.S.C. 2304 Dated: August 7, 1995. end of paragraph (a)(13) by removing and 41 U.S.C. 253 to state Edward C. Loeb, the word ‘‘or’’; at the end of paragraph Congressional policy regarding Deputy Project Manager for the (a)(14) by removing the period and legislative requirements for award of Implementation of the Federal Acquisition inserting ‘‘; or’’ in its place; and by a new contract to a specific non- Streamlining Act of 1994. adding paragraph (a)(15) to read as Federal Government entity. Therefore, 48 CFR Chapter 1 is follows: (Implementation at FAR 6.302–5.) amended as set forth below: 5.202 Exceptions. 1. The authority citation for 48 CFR —Section 10004 requires the Federal * * * * * Procurement Data System to collect Parts 2, 4, 5, 6, 14, 15, 17, 19, 25, 36, 51 and 52 continue to read as follows: (a) * * * from contracts in excess of $25,000 (15) The contract action is made data on awards to small and Authority: 40 U.S.C. 486(c); 10 U.S.C. under conditions described in 6.302–3 disadvantaged businesses using either chapter 137; and 42 U.S.C. 2473(c). with respect to the services of an expert set asides or full and open to support the Federal Government in competition, awards to businesses PART 2ÐDEFINITIONS OF WORDS AND TERMS any current or anticipated litigation or owned and controlled by women, the dispute. number of offers received in response 2. Section 2.101 is amended by to a solicitation, task or delivery order * * * * * adding, in alphabetical order, the 6. Section 5.301 is amended at the contracts and contracts for the definition Day to read as follows: acquisition of commercial items. end of paragraph (b)(6) by removing (Implementation at FAR 4.601.) 2.101 Definitions. ‘‘or’’; at the end of paragraph (b)(7) by removing the period and inserting ‘‘; * * * * * B. Regulatory Flexibility Act or’’; and by adding paragraph (b)(8) to Day means, unless otherwise read as follows: The Department of Defense, the specified, a calendar day. General Services Administration, and * * * * * 5.301 General. the National Aeronautics and Space * * * * * Administration certify that this final PART 4ÐADMINISTRATIVE MATTERS (b) * * * rule will not have a significant 3. Section 4.601 is amended by (8) The award is for the services of an economic impact on a substantial redesignating existing paragraph (d) as expert to support the Federal number of small entities within the (e); and adding a new paragraph (d) to Government in any current or meaning of the Regulatory Flexibility read as follows: anticipated litigation or dispute Act, 5 U.S.C. 601, et seq., because the pursuant to the exception to full and regulatory changes contained in the rule 4.601 Record requirements. open competition authorized at 6.302–3. relate primarily to the content of * * * * * * * * * * solicitations, debriefings and (d) In addition to the information notifications to offerors, internal described in paragraphs (b) and (c) of 5.303 [Amended] Government procedures, and this section, for procurements in excess 7. Section 5.303 is amended in procedures which apply only to the of $25,000, agencies shall be able to paragraph (b)(2) by removing the acquisition of expert services for access information on the following citation ‘‘15.1001(c)’’ and inserting litigation or to decisions to maintain from the computer file: ‘‘15.1002(c)’’ in its place. alternative sources of supply. The rule (1) Awards to small disadvantaged will increase the amount of pre-award businesses using either set-asides or full PART 6ÐCOMPETITION and post-award information provided to and open competition. REQUIREMENTS the public, but will not have a (2) Awards to business concerns 8. Section 6.202 is amended by significant economic impact. owned and controlled by women. revising paragraph (a)(1); at the end of C. Paperwork Reduction Act (3) The number of offers received in paragraph (a)(2) by removing ‘‘or’’; at response to a solicitation. the end of paragraph (a)(3) by removing The Paperwork Reduction Act does (4) Task or delivery order contracts. the period and inserting a semicolon; (5) Contracts for the acquisition of not apply because the changes to the and adding paragraphs (a)(4) through commercial items. FAR do not impose recordkeeping or (a)(6) to read as follows: information collection requirements, or * * * * * collections of information from offerors, 6.202 Establishing or maintaining contractors, or members of the public PART 5ÐPUBLICIZING CONTRACTÐ alternative sources. which require the approval of the Office ACTIONS (a) * * * of Management and Budget under 44 4. Section 5.201 is amended by (1) Increase or maintain competition U.S.C. 3501, et seq. revising paragraph (a) to read as follows: and likely result in reduced overall costs for the acquisition, or for any D. Public Comments 5.201 General. anticipated acquisition; Eighteen public comments were (a) As required by the Small Business * * * * * received in response to the proposed Act (15 U.S.C. 637(e)) and the Office of (4) Ensure the continuous availability rule published in the Federal Register Federal Procurement Policy Act (41 of a reliable source of supplies or on January 9, 1995 (60 FR 2472). These U.S.C. 416), agencies shall furnish for services; comments were considered in publication in the Commerce Business (5) Satisfy projected needs based on a formulation of this final rule. Daily (CBD) notices of proposed history of high demand; or 42654 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations (6) Satisfy a critical need for medical, (c) Limitations. (1) This authority additional use of informal documents, safety, or emergency supplies. shall not be used when a provision of including telegrams or electronic * * * * * law requires an agency to award a new transmissions, as notices of awards. 9. Section 6.302–3 is amended by contract to a specified non-Federal 13. Section 14.409–1 is revised to read revising the heading and paragraph Government entity unless the provision as follows: of law specifically— (a)(2); and by adding paragraph (b)(3) to 14.409±1 Award of unclassified contracts. read as follows: (i) Identifies the entity involved; (ii) Refers to 10 U.S.C. 2304(j) for (a)(1) The contracting officer shall as 6.302±3 Industrial mobilization; armed services acquisitions or section a minimum (subject to any restrictions engineering, developmental, or research 303(h) of the Federal Property and in Subpart 9.4)— capability; or expert services. (i) Notify each unsuccessful bidder in Administrative Services Act of 1949 for writing or electronically within three (a) * * * civilian agency acquisitions; and (2) Full and open competition need (iii) States that award to that entity days after contract award, that its bid was not accepted. ‘‘Day,’’ for purposes not to be provided for when it is shall be made in contravention of the of the notification process, means necessary to award the contract to a merit-based selection procedures in 10 calendar day, except that the period will particular source or sources in order: U.S.C. 2304(j) or section 303(h) of the run until a day which is not a Saturday, (i) to maintain a facility, producer, Federal Property and Administrative manufacturer, or other supplier Sunday, or legal holiday; Services Act, as appropriate. However, (ii) Extend appreciation for the available for furnishing supplies or this limitation does not apply— services in case of a national emergency interest the unsuccessful bidder has (A) When the work provided for in shown in submitting a bid; and or to achieve industrial mobilization, the contract is a continuation of the (ii) to establish or maintain an (iii) When award is made to other work performed by the specified entity than a low bidder, state the reason for essential engineering, research, or other under a preceding contract; or nonprofit institution or a federally rejection in the notice to each of the (B) To any contract requiring the unsuccessful low bidders. funded research and development National Academy of Sciences to center, or (2) For acquisitions subject to the investigate, examine, or experiment Trade Agreements Act or the North (iii) to acquire the services of an upon any subject of science or art of expert for any current or anticipated American Free Trade Agreement significance to an executive agency and (NAFTA) Implementation Act (see litigation or dispute. to report on those matters to the (b) * * * 25.405(e)), agencies shall include in Congress or any agency of the Federal notices given unsuccessful bidders from (3) Use of the authority in paragraph Government. (a)(2)(iii) of this section may be designated or NAFTA countries— appropriate when it is necessary to * * * * * (i) The dollar amount of the acquire the services of either— (3) The authority in (a)(2)(ii) of this successful bid; and (ii) The name and address of the (i) An expert to use, in any litigation subsection may be used only for purchases of brand-name commercial successful bidder. or dispute (including any reasonably (b) Information included in paragraph foreseeable litigation or dispute) items for resale through commissaries or other similar facilities. Ordinarily, these (a)(2) of this subsection shall be involving the Government in any trial, provided to any unsuccessful bidder hearing, or proceeding before any court, purchases will involve articles desired or preferred by customers of the selling upon request except when multiple administrative tribunal, or agency, awards have been made and furnishing whether or not the expert is expected to activities (but see 6.301(d)). 11. Section 6.304 is amended by information on the successful bids testify. Examples of such services would require so much work as to include, but are not limited to: revising paragraph (a)(2) to read as follows: interfere with normal operations of the (A) Assisting the Government in the contracting office. In such analysis, presentation, or defense of any 6.304 Approval of the justification. circumstances, only information claim or request for adjustment to (a) * * * concerning location of the abstract of contract terms and conditions, whether (2) For a proposed contract over offers need be given. asserted by a contractor or the $100,000 but not exceeding $1,000,000, (c) When a request is received Government, which is in litigation or by the competition advocate for the concerning an unclassified invitation dispute, or is anticipated to result in procuring activity designated pursuant from an inquirer who is neither a bidder dispute or litigation before any court, to 6.501 or an official described in nor a representative of a bidder, the administrative tribunal, or agency, or paragraph (a)(3) or (a)(4) of this section. contracting officer should make every (B) Participating in any part of an This authority is not delegable. effort to furnish the names of successful alternative dispute resolution process, * * * * * bidders and, if requested, the prices at including but not limited to evaluators, which awards were made. However, fact finders, or witnesses, regardless of PART 14ÐSEALED BIDDING when such requests require so much whether the expert is expected to testify; work as to interfere with the normal or 12. Section 14.408–1 is amended by operations of the contracting office, the (ii) A neutral person, e.g., mediators revising paragraphs (a)(1) and (d)(2) to inquirer will be advised where a copy or arbitrators, to facilitate the resolution read as follows: of the abstract of offers may be seen. of issues in an alternative dispute 14.408±1 General. (d) Requests for records shall be resolution process. governed by agency regulations * * * * * (a) * * * implementing Subpart 24.2. 10. Section 6.302–5 is amended by (1) by written or electronic revising paragraph (c)(1) and adding notice,* * * 14.503±1 [Amended] paragraph (c)(3) to read as follows: * * * * * 14. Section 14.503–1 is amended at (d) * * * the end of paragraph (g) by removing the 6.302±5 Authorized or required by statute. (2) Use of the Award portion of SF 33, phrase ‘‘(see 15.1003)’’ and inserting * * * * * SF 26, or SF 1447, does not preclude the ‘‘(see 15.1004)’’ in its place. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42655 PART 15ÐCONTRACTING BY (d)(1) The solicitation should be discussions (other than communications NEGOTIATION structured to provide for the selection of conducted for the purpose of minor the source whose proposal offers the clarification) are considered necessary 15.406±5 [Amended] greatest value to the Government in (see 15.407(d)(4)). Once the Government 15. Section 15.406–5 is amended in terms of performance, risk management, states its intent to award without paragraph (c) by inserting the word cost or price, and other factors. At a discussion, the rationale for reversal of ‘‘significant’’ after the word ‘‘all’’; and minimum, the solicitation shall clearly this decision shall be documented in the by removing the phrase ‘‘(see 15.605(e) state the significant evaluation factors, contract file. and (f)’’ and inserting in its place ‘‘(see such as cost or price, cost or price- (b) Except as provided in paragraph 15.605(d) and (e)’’. related factors, past performance and (a) of this section, the contracting officer 16. Section 15.407 is amended by other non-cost or non-price-related shall conduct written or oral revising paragraph (d)(4) to read as factors, and any significant subfactors, discussions with all responsible offerors follows: that will be considered in making the who submit proposals within the source selection, and their relative competitive range. The content and 15.407 Solicitation provisions. importance (see 15.406–5(c)). The extent of the discussions is a matter of * * * * * solicitation shall inform offerors of the contracting officer’s judgment, based (d) * * * minimum requirements that apply to on the particular facts of each (4) Insert in RFP’s the provision at particular evaluation factors and acquisition (but see paragraphs (c) and 52.215–16, Contract Award. significant subfactors. Further, the (d) of this section). (i) If the RFP is for construction, the solicitation shall state whether all * * * * * contracting officer shall use the evaluation factors other than cost or 21. Section 15.612 is amended by provision with its Alternate I. If awards price, when combined, are— revising paragraph (f) to read as follows: are to be made without discussions, also (i) Significantly more important than use Alternate II. cost or price; 15.612 Formal source selection. (ii) If the contracting officer intends to (ii) Approximately equal to cost or * * * * * evaluate offers and make award without price; or (f) Postaward notices and debriefings. discussions, use the basic provision (iii) Significantly less important than See 15.1002(c) and 15.1004. with its Alternate II. cost or price. * * * * * (2) The solicitation may elaborate on 15.1001 through 15.1005 [Redesignated as the relative importance of factors and 15.1002 through 15.1006] 15.412 [Amended] subfactors at the discretion of the 22. Sections 15.1001 through 15.1005 17. Section 15.412 is amended in the contracting officer. Agencies may elect are redesignated as 15.1002 through second sentence of paragraph (d) by to assign numerical weights to 15.1006, respectively; and a new removing the citation ‘‘15.1001(c)(1)’’ evaluation factors and employ those 15.1001 is added to read as follows: and inserting ‘‘15.1002(c)(1)’’ in its weights when evaluating proposals. 15.1001 General. place. Numerical weights need not be 18. Section 15.605 is amended by disclosed in solicitations; however, This subpart applies to the use of revising the heading, and paragraphs (a), nothing precludes an agency from competitive proposals, as described in (b)(1) introductory text, (b)(1)(iii), (b)(2), disclosing the weights on a case-by-case 6.102(b), and a combination of and (d) to read as follows: basis. The solicitation may state that competitive procedures, as described in award will be made to the offeror that 6.102(c). To the extent practicable, 15.605 Evaluation factors and subfactors. meets the solicitation’s minimum however, the procedures and intent of (a) The factors and subfactors that will criteria for acceptable award at the this subpart, with reasonable be considered in evaluating proposals lowest cost or price. modification, should be followed for acquisitions described in 6.102(d): shall be tailored to each acquisition and * * * * * shall include only those factors that will broad agency announcements, small have an impact on the source selection 15.609 [Amended] business innovation research contracts, decision. 19. Section 15.609 is amended in and architect-engineer contracts. (b)(1) The evaluation factors and paragraph (c) by removing ‘‘(see However, they do not apply to multiple subfactors that apply to an acquisition 15.1001(b))’’ and inserting ‘‘(see award schedules, as described in and the relative importance of those 15.1002(b))’’ in its place. 6.102(d)(3). factors and subfactors are within the 20. Section 15.610 is amended by 23. Newly designated section 15.1002 broad discretion of agency acquisition revising paragraphs (a) and (b) to read is amended by revising paragraph (a), officials except that— as follows: and the introductory text of paragraph (b)(2); by removing paragraph (c)(2) and * * * * * 15.610 Written or oral discussion. (iii) Quality shall be addressed in redesignating paragraph (c)(3) as (c)(2); every source selection through inclusion (a) The requirement in paragraph (b) and by amending the newly designated in one or more of the non-cost of this section for written or oral paragraph (c)(2) by removing evaluation factors or subfactors, such as discussion need not be applied in ‘‘15.1001(c)(1)(i)’’ and inserting past performance, technical excellence, acquisitions— ‘‘15.1002(c)(1)(i)’’. The revised text (1) In which prices are fixed by law management capability, personnel reads as follows: or regulation; qualifications, prior experience, and (2) Of the set-aside portion of a partial 15.1002 Notifications to unsuccessful schedule compliance. set-aside; or offerors. * * * * * (3) In which the solicitation notified (a) General. Within three days after (2) Any other relevant factors or all offerors that the Government intends the date of contract award, the subfactors, such as cost realism, may to evaluate proposals and make award contracting officer shall notify, in also be included. without discussion, unless the writing or electronically, each offeror * * * * * contracting officer determines that whose proposal is determined to be 42656 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations unacceptable or whose offer is not support. If the contracting officer is PART 17ÐSPECIAL CONTRACTING selected for award. ‘‘Day,’’ for purposes unavailable, another agency METHODS of the notification process, means representative may be designated by the calendar day, except that the period will contracting officer on a case-by-case 26. Section 17.202 is amended by run until a day which is not a Saturday, basis, with the approval of an individual revising paragraph (a); and at the end of Sunday, or legal holiday. a level above the contracting officer. paragraph (b)(1)(ii) by removing ‘‘; or’’ and inserting a period in its place. The (b) * * * (d) At a minimum, the debriefing revised text reads as follows: (2) In a small business set-aside (see information shall include— Subpart 19.5), upon completion of (1) The Government’s evaluation of 17.202 Use of options. negotiations and determinations of the significant weaknesses or (a) Subject to the limitations of responsibility, but prior to award, the deficiencies in the offeror’s proposal, if paragraphs (b) and (c) of this section, for contracting officer shall notify each applicable; both sealed bidding and contracting by unsuccessful offeror in writing or (2) The overall evaluated cost or price negotiation, the contracting officer may electronically of the name and location and technical rating, if applicable, of the include options in contracts when it is of the apparent successful offeror. The successful offeror and the debriefed in the Government’s interest. When notice shall also state that: offeror; using sealed bidding, the contracting * * * * * (3) The overall ranking of all offerors officer shall make a written 24. Newly designated section 15.1003 when any ranking was developed by the determination that there is a reasonable is amended by revising the first agency during the source selection; likelihood that the options will be sentence to read as follows: (4) A summary of the rationale for exercised before including the provision 15.1003 Notification to successful offeror. award; at 52.217–5, Evaluation of Options, in The contracting officer shall award a (5) For acquisitions of commercial the solicitation. (See 17.207(f) with contract with reasonable promptness to end items, the make and model of the regard to the exercise of options.) the successful offeror (selected in item to be delivered by the successful * * * * * accordance with 15.611(d)) by offeror; and 27. Section 17.208 is amended by transmitting written or electronic notice (6) Reasonable responses to relevant revising paragraphs (b) and (c)(4) to read of the award to that offeror (but see questions about whether source as follows: 15.608(b)). * * * selection procedures contained in the 17.208 Solicitation provisions and 25. Newly designated section 15.1004 solicitation, applicable regulations, and contract clauses. is revised to read as follows: other applicable authorities were * * * * * followed. (b) The contracting officer shall insert 15.1004 Debriefing of offerors. (e) The debriefing shall not include (a) When a contract is awarded on the a provision substantially the same as the point-by-point comparisons of the provision at 52.217–4, Evaluation of basis of competitive proposals, an debriefed offeror’s proposal with those offeror, upon its written request Options Exercised at Time of Contract of other offerors. Moreover, debriefing Award, in solicitations when the received by the agency within three shall not reveal any information exempt days after the date on which that offeror solicitation includes an option clause, from release under the Freedom of the contracting officer has determined has received notice of contract award, Information Act including— shall be debriefed and furnished the that there is a reasonable likelihood that (1) Trade secrets; the option will be exercised, and the basis for the selection decision and (2) Privileged or confidential contract award. When practicable, option may be exercised at the time of manufacturing processes and contract award. debriefing requests received more than techniques; three days after the offeror receives (c) * * * (3) Commercial and financial (4) The contracting officer has notice of contract award shall be information that is privileged or determined that there is a reasonable accommodated. However, confidential, including cost likelihood that the option will be accommodating such untimely breakdowns, profit, indirect cost rates, exercised. For sealed bids, the debriefing requests does not extend the and similar information; and determination shall be in writing. time within which suspension of performance can be required, as this (4) The names of individuals * * * * * providing reference information about accommodation is not a ‘‘required PART 19ÐSMALL BUSINESS AND debriefing’’ as described in FAR Part 33. an offeror’s past performance. (f) The contracting officer shall SMALL DISADVANTAGED BUSINESS To the maximum extent practicable, the CONCERNS debriefing should occur within five days include an official summary of the after receipt of the written request. debriefing in the contract file. 19.302 [Amended] ‘‘Day,’’ for purposes of the debriefing (g) If, within one year of contract 28. Section 19.302 is amended in process, means calendar day, except award, a protest causes the agency to paragraph (d)(1) introductory text by that the period will run until a day issue either a new solicitation or a new removing the word ‘‘below’’ and which is not a Saturday, Sunday, or request for best and final offers on the inserting ‘‘of this section’’ in its place; legal holiday. protested contract award, the agency and removing ‘‘(see 15.1001(b)(2))’’ and (b) Debriefings of successful and shall make available to all prospective inserting ‘‘(see 15.1002(b)(2))’’ in its unsuccessful offerors may be done offerors— place. orally, in writing, by electronic means, (1) Information provided in any or any other method acceptable to the debriefings conducted on the original 19.501 [Amended] contracting officer. award about the successful offeror’s 29. Section 19.501 is amended in the (c) The contracting officer should proposal; and second sentence of paragraphs (h)(1) normally chair any debriefing session (2) Other nonproprietary information and (h)(2) by removing the citation held. Individuals actually responsible that would have been provided to the ‘‘15.1001(b)(2)’’ and inserting for the evaluations shall provide original offerors. ‘‘15.1002(b)(2) in their place. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42657 PART 25ÐFOREIGN ACQUISITION People Who Are Blind or Severely However, the Government reserves the right Disabled, to the Federal Government to conduct discussions if later determined by 30. Section 25.405 is amended by (See Subpart 8.7). the Contracting Officer to be necessary. revising paragraph (e) to read as follows: * * * * * [FR Doc. 95–19859 Filed 8–15–95; 8:45 am] 25.405 Procedures. 34. Section 51.102 is amended by BILLING CODE 6820±EP±M * * * * * revising the second sentence of (e) Within three days after a contract paragraph (a) introductory text to read award for an eligible product, agencies as follows: 48 CFR Parts 31, 42, and 52 shall give unsuccessful offerors from 51.102 Authorization to use Government [FAC 90±31; FAR Case 94±751; Item III] designated or NAFTA countries notice supply sources. RIN 9000±AG20 in accordance with 14.409–1 and (a) * * * Except for findings under 15.1002. ‘‘Day,’’ for purposes of the 51.101(a)(3), the determination shall be Federal Acquisition Regulation; notification process, means calendar based on, but not limited to, Penalties on Unallowable Indirect day, except that the period will run considerations of the following factors: Costs until a day which is not a Saturday, * * * * * Sunday, or legal holiday. AGENCIES: Department of Defense (DOD), General Services Administration (GSA), PART 36ÐCONSTRUCTION AND PART 52ÐSOLICITATION PROVISIONS AND CONTRACT CLAUSES and National Aeronautics and Space ARCHITECT-ENGINEER CONTRACTS Administration (NASA). 35. Section 52.215–16 is amended by 31. Section 36.304 is amended by ACTION: Final rule. revising the introductory text to read as revising the date in the provision follows: heading and by revising paragraph (c); SUMMARY: This final rule is issued by adding paragraph (h); by removing pursuant to the Federal Acquisition 36.304 Notice of award. Alternate II and redesignating Alternate Streamlining Act of 1994 to amend the When a notice of award is issued, it III as Alternate II; and revising Federal Acquisition Regulation (FAR) to shall be done in writing or Alternates I and II to read as follows: implement the requirements for electronically, shall contain information 52.215±16 Contract Award. penalties for unallowable costs. This required by 14.408, and shall— regulatory action was subject to Office * * * * * * * * * * of Management and Budget review 32. Section 36.607 is amended by Contract Award (Oct 1995) under Executive Order 12866, dated designating the existing text as * * * * * September 30, 1993. paragraph (a) and adding paragraph (b) (c) The Government intends to evaluate EFFECTIVE DATE: October 1, 1995. to read as follows: proposals and award a contract after FOR FURTHER INFORMATION CONTACT: conducting written or oral discussions with 36.607 Release of information on firm all responsible offerors whose proposals have Mr. Clarence Belton, Cost Principles selection. been determined to be within the competitive Team Leader, at (703) 602–2357 in * * * * * range. However, each initial offer should reference to this FAR case. For general (b) Debriefings of successful and contain the offeror’s best terms from a cost information, contact the FAR unsuccessful firms will be held after or price and technical standpoint. Secretariat, Room 4037, GS Building, final selection has taken place and will * * * * * Washington, DC 20405 (202) 501–4755. be conducted, to the extent practicable, (h) The Government may disclose the Please cite FAC 90–31, FAR case 94– in accordance with 15.1004 (b) through following information in post-award 751. (g). Note that 15.1004 (d)(2) through debriefings to other offerors: (1) the overall evaluated cost or price and technical rating SUPPLEMENTARY INFORMATION: (d)(5) does not apply to architect- of the successful offeror; (2) the overall A. Background engineer contracts. ranking of all offerors, when any ranking was developed by the agency during source The Federal Acquisition Streamlining PART 51ÐUSE OF GOVERNMENT selection; (3) a summary of the rationale for Act of 1994, Pub. L. 103–355 (the Act), SOURCES BY CONTRACTORS award; and (4) for acquisitions of commercial provides authorities that streamline the end items, the make and model of the item acquisition process and minimize 33. Section 51.101 is amended at the to be delivered by the successful offeror. end of paragraph (a)(1) by removing burdensome Government-unique (End of provision) ‘‘or’’ and at the end of paragraph (a)(2) requirements. Major changes that can be Alternate I (OCT 1995). As prescribed in expected in the acquisition process as a by removing the period and inserting ‘‘; 15.407(d)(4)(i), substitute the following or’’ and by adding paragraph (a)(3) to result of the Act’s implementation paragraph (d) for paragraph (d) of the basic include changes in the areas of read as follows: provision: (d) The Government may accept any item Commercial Item Acquisition, the Truth 51.101 Policy. or combination of items, unless doing so is in Negotiations Act, and introduction of (a) * * * precluded by a restrictive limitation in the the Federal Acquisition Computer (3) A contract under the Javits- solicitation or offer. Network (FACNET). Wagner-O’Day Act (41 U.S.C. 46, et seq.) Alternate II (OCT 1995). As prescribed in Sections 2101 and 2151 of the Federal if: 15.407(d)(4)(ii), substitute the following Acquisition Streamlining Act of 1994 (i) the nonprofit agency requesting use paragraph (c) for paragraph (c) of the basic change the contract value threshold for of the supplies and services is providing provision: assessment of penalties on unallowable a commodity or service to the Federal (c) The Government intends to evaluate costs from $100,000 to $500,000 and proposals and award a contract without Government, and discussions with offerors (except expand the coverage from the (ii) the supplies or services received communications conducted for the purpose Department of Defense to all executive are directly used in making or providing of minor clarification). Therefore, each initial agencies. This final rule makes the a commodity or service, approved by offer should contain the offeror’s best terms required changes. With the exception of the Committee for Purchase From from a cost or price and technical standpoint. the threshold value, the penalty 42658 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations provisions in the new law are the same certification provisions and the related 42.709±2 Responsibilities. as those implemented in the current contract clause prescription. (a) The cognizant contracting officer is Defense Federal Acquisition Regulation (b) If unallowable costs are included responsible for— Supplement. in final indirect cost settlement (1) Determining whether the penalties in 42.709–1(a) should be assessed; B. Regulatory Flexibility Act proposals, penalties may be assessed. See 42.709 for administrative (2) Determining whether such The Department of Defense, the procedures regarding the penalty penalties should be waived pursuant to General Services Administration, and assessment provisions and the related 42.709–5; and the National Aeronautics and Space contract clause prescription. (3) Referring the matter to the Administration certify that this final appropriate criminal investigative rule will not have a significant PART 42ÐCONTRACT organization for review and for economic impact on a substantial ADMINISTRATION appropriate coordination of remedies, if number of small entities under the there is evidence that the contractor Regulatory Flexibility Act, 5 U.S.C. 601, 3. Sections 42.709 thru 42.709–6 are knowingly submitted unallowable costs. et seq., because most contracts awarded added to read as follows: (b) The contract auditor, in the review to small businesses are awarded Sec. and/or the determination of final competitively on a firm-fixed-price basis 42.709 Scope. indirect cost proposals for contracts and, therefore, are not subject to the 42.709–1 General. subject to this section, is responsible 42.709–2 Responsibilities. FAR cost principles. for— 42.709–3 Assessing the penalty. (1) Recommending to the contracting C. Paperwork Reduction Act 42.709–4 Computing interest. 42.709–5 Waiver of the penalty. officer which costs may be unallowable The Paperwork Reduction Act does 42.709–6 Contract clause. and subject to the penalties in 42.709– not apply because the changes to the 1(a); FAR do not impose recordkeeping or 42.709 Scope. (2) Providing rationale and supporting information collection requirements, or (a) This section implements 10 U.S.C. documentation for any collections of information from offerors, 2324 (a) through (d) and 41 U.S.C. 256 recommendation; and contractors, or members of the public (a) through (d). It covers the assessment (3) Referring the matter to the which require the approval of the Office of penalties against contractors which appropriate criminal investigative of Management and Budget under 44 include unallowable indirect costs in— organization for review and for U.S.C. 3501, et seq. (1) Final indirect cost rate proposals; appropriate coordination of remedies, if or there is evidence that the contractor D. Public Comments knowingly submitted unallowable costs. (2) The final statement of costs Twelve public comments were incurred or estimated to be incurred 42.709±3 Assessing the penalty. received in response to the proposed under a fixed-price incentive contract. Unless a waiver is granted pursuant to rule published in the Federal Register (b) This section applies to all 42.709–5, the cognizant contracting on December 19, 1994 (59 FR 65460). contracts in excess of $500,000, except officer shall— The comments were considered in the fixed-price contracts without cost (a) Assess the penalty in 42.709– formulation of this final rule. incentives or any firm-fixed-price 1(a)(1), when the submitted cost is List of Subjects in 48 CFR Parts 31, 42, contracts for the purchase of expressly unallowable under a cost and 52 commercial items. principle in the FAR or an executive agency supplement that defines the Government procurement. 42.709±1 General. allowability of specific selected costs; or Dated: August 7, 1995. (a) The following penalties apply to (b) Assess the penalty in 42.709– Edward C. Loeb, contracts covered by this section: 1(a)(2), when the submitted cost was Deputy Project Manager for the (1) If the indirect cost is expressly determined to be unallowable for that Implementation of the Federal Acquisition unallowable under a cost principle in contractor prior to submission of the Streamlining Act of 1994. the FAR, or an executive agency proposal. Prior determinations of Therefore, 48 CFR Parts 31, 42, and 52 supplement to the FAR, that defines the unallowability may be evidenced by— are amended as set forth below: allowability of specific selected costs, (1) A DCAA Form 1, Notice of 1. The authority citation for 48 CFR the penalty is equal to— Contract Costs Suspended and/or Parts 31, 42, and 52 continues to read (i) The amount of the disallowed costs Disapproved (see 48 CFR 242.705–2), or as follows: allocated to contracts that are subject to any similar notice which the contractor this section for which an indirect cost elected not to appeal and was not Authority: 40 U.S.C. 486(c); 10 U.S.C. withdrawn by the cognizant chapter 137; and 42 U.S.C. 2473(c). proposal has been submitted; plus (ii) Interest on the paid portion, if any, Government agency; (2) A contracting officer final decision PART 31ÐCONTRACT COST of the disallowance. PRINCIPLES AND PROCEDURES which was not appealed; (2) If the indirect cost was determined (3) A prior executive agency Board of to be unallowable for that contractor 2. Section 31.110 is added to read as Contract Appeals or court decision before proposal submission, the penalty follows: involving the contractor, which upheld is two times the amount in paragraph the cost disallowance; or 31.110 Indirect cost rate certification and (a)(1)(i) of this section. (4) A determination or agreement of penalties on unallowable costs. (b) These penalties are in addition to unallowability under 31.201–6. (a) Certain contracts require other administrative, civil, and criminal (c) Issue a final decision (see 33.211) certification of the indirect cost rates penalties provided by law. which includes a demand for payment proposed for progress, billing, or final (c) It is not necessary for unallowable of any penalty assessed under paragraph payment purposes. See 42.703–2 for costs to have been paid to the contractor (a) or (b) of this section. The letter shall administrative procedures regarding the in order to assess a penalty. state that the determination is a final Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42659 decision under the Disputes clause of (2) The unallowable costs subject to Secretary of the Treasury pursuant to Pub. L. the contract. (Demanding payment of the penalty were inadvertently 92–41 (85 Stat. 97). the penalty is separate from demanding incorporated into the proposal; i.e., their (e) If the Contracting Officer determines repayment of any paid portion of the inclusion resulted from an that a cost submitted by the Contractor in its proposal includes a cost previously disallowed cost.) unintentional error, notwithstanding the determined to be unallowable for that exercise of due care. 42.709±4 Computing interest. Contractor, then the Contractor will be 42.709±6 Contract clause. assessed a penalty in an amount equal to two For 42.709–1(a)(1)(ii), compute times the amount of the disallowed cost interest on any paid portion of the Use the clause at 52.242–3, Penalties allocated to this contract. disallowed cost as follows: for Unallowable Costs, in all (f) Determinations under paragraphs (d) (a) Consider the overpayment to have solicitations and contracts over and (e) of this clause are final decisions occurred, and interest to have begun $500,000 except fixed-price contracts within the meaning of the Contract Disputes accumulating, from the midpoint of the without cost incentives or any firm- Act of 1978 (41 U.S.C. 601, et seq.). contractor’s fiscal year. Use an alternate fixed-price contract for the purchase of (g) Pursuant to the criteria in FAR 42.709– equitable method if the cost was not commercial items. Generally, covered 5, the Contracting Officer may waive the paid evenly over the fiscal year. contracts are those which contain one of penalties in paragraph (d) or (e) of this clause. (b) Use the interest rate specified by the clauses at 52.216–7, 52.216–13, (h) Payment by the Contractor of any the Secretary of the Treasury pursuant 52.216–16, or 52.216–17, or a similar penalty assessed under this clause does not to Pub. L. 92–41 (85 Stat. 97). clause from an executive agency’s constitute repayment to the Government of (c) Compute interest from the date of supplement to the FAR. any unallowable cost which has been paid by overpayment to the date of the demand the Government to the Contractor. letter for payment of the penalty. PART 52ÐSOLICITATION PROVISIONS (End of clause) (d) Determine the paid portion of the AND CONTRACT CLAUSES disallowed costs in consultation with [FR Doc. 95–19860 Filed 8–15–95; 8:45 am] 5. Section 52.242–3 is added to read BILLING CODE 6820±EP±M the contract auditor. as follows: 42.709±5 Waiver of the penalty. 52.242±3 Penalties for Unallowable Costs. 48 CFR Parts 31, 37, 42 and 52 The cognizant contracting officer shall As prescribed in 42.709–6, use the waive the penalties at 42.709–1(a) following clause: [FAC 90±31; FAR Case 94±754; Item IV] when— (a) The contractor withdraws the Penalties for Unallowable Costs (Oct 1995) RIN 9000±AG21 proposal before the Government (a) Definition. Proposal, as used in this formally initiates an audit of the clause, means either— Federal Acquisition Regulation; proposal and the contractor submits a (1) A final indirect cost rate proposal Implementation of Various Cost revised proposal (an audit will be submitted by the Contractor after the Principle Provisions deemed to be formally initiated when expiration of its fiscal year which— (i) Relates to any payment made on the AGENCIES: the Government provides the contractor Department of Defense (DOD), basis of billing rates; or General Services Administration (GSA), with written notice, or holds an (ii) Will be used in negotiating the final entrance conference, indicating that and National Aeronautics and Space contract price; or Administration (NASA). audit work on a specific final indirect (2) The final statement of costs incurred cost proposal has begun); and estimated to be incurred under the ACTION: Final rule. (b) The amount of the unallowable Incentive Price Revision clause (if SUMMARY: The Federal Acquisition costs under the proposal which are applicable), which is used to establish the Regulatory Council is amending the subject to the penalty is $10,000 or less final contract price. Federal Acquisition Regulation (FAR) to (i.e., if the amount of expressly or (b) Contractors which include unallowable indirect costs in a proposal may be subject implement Section 2101 of the Federal previously determined unallowable to penalties. The penalties are prescribed in Acquisition Streamlining Act of 1994. costs which would be allocated to the 10 U.S.C. 2324 or 41 U.S.C. 256, as Section 2101 adds the costs of lobbying contracts specified in 42.709(b) is applicable, which is implemented in Section the legislative body of a political $10,000 or less); or 42.709 of the Federal Acquisition Regulation subdivision of a state to the list of (c) The contractor demonstrates, to (FAR). unallowable costs; adds the cost of the cognizant contracting officer’s (c) The Contractor shall not include in any satisfaction, that— proposal any cost which is unallowable, as ‘‘conventions’’ to the list of costs to be (1) It has established policies and defined in Part 31 of the FAR, or an executive clarified in the cost principles; and personnel training and an internal agency supplement to Part 31 of the FAR. expands the coverage to the Coast Guard control and review system that provide (d) If the Contracting Officer determines and NASA. The provisions are made that a cost submitted by the Contractor in its assurance that unallowable costs subject generally applicable to all other proposal is expressly unallowable under a executive agencies. This regulatory to penalties are precluded from being cost principle in the FAR, or an executive included in the contractor’s final action was subject to Office of agency supplement to the FAR, that defines Management and Budget review under indirect cost rate proposals (e.g., the the allowability of specific selected costs, the types of controls required for Contractor shall be assessed a penalty equal Executive Order 12866, dated satisfactory participation in the to— September 30, 1993. Department of Defense sponsored self- (1) The amount of the disallowed cost EFFECTIVE DATE: October 1, 1995. governance programs, specific allocated to this contract; plus FOR FURTHER INFORMATION CONTACT: accounting controls over indirect costs, (2) Simple interest, to be computed— Mr. Clarence Belton, Cost Principles (i) On the amount the Contractor was paid compliance tests which demonstrate (whether as a progress or billing payment) in Team Leader, at (703)602–2357, in that the controls are effective, and excess of the amount to which the Contractor reference to this FAR case. For general Government audits which have not was entitled; and information, contact the FAR disclosed recurring instances of (ii) Using the applicable rate effective for Secretariat, Room 4037, GS Building, expressly unallowable costs); and each six-month interval prescribed by the Washington, DC 20405 (202) 501–4755. 42660 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Please cite FAC 90–31, FAR case 94– published in the Federal Register on agreement entered into with the 754. December 13, 1994 (59 FR 64268). These government of that country before comments were considered in the November 29, 1989. 10 U.S.C. 2324(e)(3) SUPPLEMENTARY INFORMATION: formulation of this final rule. and 41 U.S.C. 256(e)(2) permit the head A. Background of the agency, or designee, to waive List of Subjects in 48 CFR Parts 31, 37, these cost allowability limitations under The Federal Acquisition Streamlining 42 and 52 Act of 1994 (the Act), Pub. L. 103–355, certain circumstances (see 37.113 and provides the authority to streamline the Government procurement. the solicitation provision at 52.237–8). acquisition process and minimize Dated: August 7, 1995. * * * * * burdensome requirements unique to the Edward C. Loeb, 31.205±22 [Amended] Federal Government. Major changes that Deputy Project Manager for the can be expected in the acquisition Implementation of the Federal Acquisition 4. Section 31.205–22 is amended in process as a result of the Act’s Streamlining Act of 1994. paragraphs (a) (3) and (4) by revising the implementation include changes in the Therefore, 48 CFR Parts 31, 37, 42 and phrase ‘‘Federal or state’’ to read areas of Commercial Item Acquisition, 52 are amended as set forth below: ‘‘Federal, state, or local’’ each time it the Truth in Negotiations Act, and 1. The authority citation for 48 CFR appears. introduction of the Federal Acquisition Parts 31, 37, 42 and 52 continues to read Computer Network. 31.205±43 [Amended] as follows: This notice announces revisions 5. Section 31.205–43 is amended in developed under FAR case 94–754, Authority: 40 U.S.C. 486(c); 10 U.S.C. the introductory text of paragraph (c) based on Section 2101 of the Act that chapter 137; and 42 U.S.C. 2473(c). and (c)(3)(ii) by inserting ‘‘convention,’’ adds the costs of lobbying the legislative after ‘‘meeting,’’ and in paragraph (c)(1) body of a political subdivision of a state PART 31ÐCONTRACT COST PRINCIPLES AND PROCEDURES by inserting ‘‘conventions,’’ after to the list of unallowable costs; adds the ‘‘meetings,’’. cost of ‘‘conventions’’ to the costs to be 31.205±1 [Amended] 6. Section 31.603(b) is revised to read clarified in the cost principles; and 2. Section 31.205–1(f)(3) is amended as follows: expands the coverage to the Coast Guard by adding ‘‘conventions,’’ after and the National Aeronautics and Space ‘‘meetings,’’. 31.603 Requirements. Administration. Section 2151 amends 3. Section 31.205–6 is amended in * * * * * 41 U.S.C. 256 to include all the paragraph (g)(2) by adding a sentence at (b) Agencies are not expected to place provisions of 10 U.S.C. 2324, as the end of the introductory text and amended by Section 2101. Therefore, additional restrictions on individual adding paragraph (g)(3) to read as the provisions are made generally items of cost. However, under 10 U.S.C. follows: applicable to all other executive 2324(e) and 41 U.S.C. 256(e), the following costs are unallowable: agencies. The new FAR language, with 31.205±6 Compensation for personal only minor variations, was transferred services. (1) Costs of entertainment, including from the current coverage in the Defense * * * * * amusement, diversion, and social Federal Acquisition Regulation (g) * * * activities, and any costs directly Supplement. (2) * * * In addition, paragraph (g)(3) associated with such costs (such as tickets to shows or sports events, meals, B. Regulatory Flexibility Act of this subsection applies if the severance cost is for foreign nationals lodging, rentals, transportation, and The Department of Defense, the employed outside the United States. gratuities). General Services Administration, and (2) Costs incurred to influence the National Aeronautics and Space * * * * * (3) Notwithstanding the reference to (directly or indirectly) legislative action Administration certify that this final on any matter pending before Congress, rule will not have a significant geographical area in 31.205–6(b)(1), under 10 U.S.C. 2324(e)(1)(M) and 41 a State legislature, or a legislative body economic impact on a substantial of a political subdivision of a State. number of small entities within the U.S.C. 256(e)(1)(M), the costs of severance payments to foreign nationals (3) Costs incurred in defense of any meaning of the Regulatory Flexibility civil or criminal fraud proceeding or Act, 5 U.S.C. 601, et seq., because most employed under a service contract performed outside the United States are similar proceeding (including filing of contracts awarded to small businesses any false certification) brought by the are awarded competitively on a firm- unallowable to the extent that such payments exceed amounts typically United States where the contractor is fixed-price basis and, therefore, are not found liable or has pleaded nolo subject to the FAR cost principles. paid to employees providing similar services in the same industry in the contendere to a charge of fraud or C. Paperwork Reduction Act United States. Further, under 10 U.S.C. similar proceeding (including filing of a The Paperwork Reduction Act does 2324(e)(1)(N) and 41 U.S.C. 256(e)(1)(N), false certification). not apply because the changes to the all such costs of severance payments (4) Payments of fines and penalties FAR do not impose recordkeeping or which are otherwise allowable are resulting from violations of, or failure to information collection requirements, or unallowable if the termination of comply with, Federal, state, local, or collections of information from offerors, employment of the foreign national is foreign laws and regulations, except contractors, or members of the public the result of the closing of, or the when incurred as a result of compliance which require the approval of the Office curtailment of activities at, a United with specific terms and conditions of of Management and Budget under 44 States facility in that country at the the contract or specific written U.S.C. 3501, et seq. request of the government of that instructions from the contracting officer country; this does not apply if the authorizing in advance such payments D. Public Comments closing of a facility or curtailment of in accordance with applicable Eight public comments were received activities is made pursuant to a status- regulations in the FAR or an executive in response to the proposed rule of-forces or other country-to-country agency supplement to the FAR. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42661 (5) Costs of any membership in any items of cost. However, under 10 U.S.C. 42.703 Policy social, dining, or country club or 2324(e) and 41 U.S.C. 256(e), the costs * * * * * organization. cited in 31.603(b) are unallowable. (c) * * * (6) Costs of alcoholic beverages. (2) To ensure compliance with 10 (7) Contributions or donations, PART 37ÐSERVICE CONTRACTING U.S.C. 2324(a) and 41 U.S.C. 256(a), use regardless of the recipient. established final indirect cost rates in 8. Sections 37.113, 37.113–1 and (8) Costs of advertising designed to negotiating the final price of fixed-price 37.113–2 are added to read as follows: promote the contractor or its products. incentive and fixed-price (9) Costs of promotional items and Sec. redeterminable contracts and in other memorabilia, including models, gifts, 37.113 Severance payments to foreign nationals. situations requiring that indirect costs and souvenirs. be settled before contract prices are (10) Costs for travel by commercial 37.113–1 Waiver of cost allowability established. aircraft which exceed the amount of the limitations. 37.113–2 Solicitation provision and 10. Section 42.705–1 is amended by standard commercial fare. revising paragraph (b)(4) and adding (11) Costs incurred in making any contract clause. (b)(5)(v) to read as follows: payment (commonly known as a 37.113 Severance payments to foreign ‘‘golden parachute payment’’) which nationals. 42.705±1 Contracting officer determination is— procedure. (i) In an amount in excess of the 37.113±1 Waiver of cost allowability limitations. * * * * * normal severance pay paid by the (b) * * * contractor to an employee upon (a) The head of any agency, or (4) The Government negotiating team termination of employment; and designee, may waive the 31.205–6(g)(3) shall develop a negotiation position. (ii) Is paid to the employee contingent cost allowability limitations on Pursuant to 10 U.S.C. 2324(f) and 41 upon, and following, a change in severance payments to foreign nationals U.S.C. 256(f), the contracting, officer management control over, or ownership for contracts that— shall— of, the contractor or a substantial (i) Provide significant support (i) Not resolve any questioned costs portion of the contractor’s assets. services for (i) members of the armed until obtaining— (12) Costs of commercial insurance forces stationed or deployed outside the (A) Adequate documentation on the that protects against the costs of the United States, or (ii) employees of an costs; and contractor for correction of the executive agency posted outside the (B) The contract auditor’s opinion on contractor’s own defects in materials or United States; and the allowability of the costs. workmanship. (2) Will be performed in whole or in (ii) Whenever possible, invite the (13) Costs of severance pay paid by part outside the United States. contract auditor to serve as an advisor the contractor to foreign nationals at any negotiation or meeting with the employed by the contractor under a (b) Waivers can be granted only before contract award. contractor on the determination of the service contract performed outside the contractor’s final indirect cost rates. United States, to the extent that the (c) Waivers cannot be granted for— (1) Military banking contracts, which (5) * * * amount of the severance pay paid in any (v) Notify the contractor of the are covered by 10 U.S.C. 2324(e)(2); or case exceeds the amount paid in the individual costs which were considered (2) Severance payments made by a industry involved under the customary unallowable and the respective amounts contractor to a foreign national or prevailing practice for firms in that of the disallowance. industry providing similar services in employed by the contractor under a the United States, as determined by DOD service contract in the Republic of PART 52ÐSOLICITATION PROVISIONS regulations in the FAR or in an the Philippines, if the discontinuation AND CONTRACT CLAUSES executive agency supplement to the of the foreign national is the result of FAR. the termination of basing rights of the 11. Sections 52.237–8 and 52.237–9 (14) Costs of severance pay paid by United States military in the Republic of are added to read as follows: the contractor to a foreign national the Philippines (section 1351(b) of 52.237±8 Restriction on Severance employed by the contractor under a Public Law 102–484, 10 U.S.C. 1592, Payments to Foreign Nationals. service contract performed in a foreign note). country if the termination of the As prescribed in 37.113–2(a), use the employment of the foreign national is 37.113±2 Solicitation provision and following provision: contract clause. the result of the closing of, or Restriction on Severance Payments to curtailment of activities at, a United (a) Use the provision at 52.237–8, Foreign Nationals (Oct 1995) States facility in that country at the Restriction on Severance Payments to (a) The Federal Acquisition Regulation request of the government of that Foreign Nationals, in all solicitations (FAR), at 31.205–6(g)(3), limits the cost country. that meet the criteria in 37.113–1(a), allowability of severance payments to foreign (15) Costs incurred by a contractor in except for those excluded by 37.113– nationals employed under a service contract connection with any criminal, civil, or 1(c). performed outside the United States unless administrative proceedings commenced (b) When the head of an agency, or the head of the agency, or designee, grants a by the United States or a State, to the waiver pursuant to FAR 37.113–1 before designee, has granted a waiver pursuant contract award. extent provided in 10 U.S.C. 2324(k) or to 37.113–1, use the clause at 52.237–9, (b) In making the determination concerning 41 U.S.C. 256(k). Waiver of Limitation on Severance the granting of a waiver, the head of the 7. Section 31.703(b) is revised to read Payments to Foreign Nationals. agency, or designee, will determine that— as follows: (1) The application of the severance pay PART 42ÐCONTRACT limitations to the contract would adversely 31.703 Requirements. ADMINISTRATION affect the continuation of a program, project, * * * * * or activity that provides significant support (b) Agencies are not expected to place 9. Section 42.703(c)(2) is revised to services for (i) members of the armed forces additional restrictions on individual read as follows: stationed or deployed outside the United 42662 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations States, or (ii) employees of an executive SUPPLEMENTARY INFORMATION: wording relating to the unallowability of agency posted outside the United States; A. Background entertainment costs and to delete the (2) The Contractor has taken (or has ‘‘but see’’ provision. established plans to take) appropriate actions The Federal Acquisition Streamlining within its control to minimize the amount Act of 1994, Public Law 103–355 (the B. Regulatory Flexibility Act and number of incidents of the payment of Act), provides authorities that The Department of Defense, the severance pay to employees under the streamline the acquisition process and General Services Administration, and contract who are foreign nationals; and minimize burdensome government- (3) The payment of severance pay is the National Aeronautics and Space necessary in order to comply with a law that unique requirements. Major changes Administration certify that this final is generally applicable to a significant that can be expected in the acquisition rule will not have a significant number of businesses in the country in process as a result of the Act’s economic impact on a substantial which the foreign national receiving the implementation include changes in the number of small entities within the payment performed services under the areas of Commercial Item Acquisition, meaning of the Regulatory Flexibility contract, or is necessary to comply with a the Truth in Negotiations Act, and Act, 5 U.S.C. 601, et seq., because most collective bargaining agreement. introduction of the Federal Acquisition contracts awarded to small businesses (End of provision) Computer Network. This notice are awarded competitively on a firm- announces Federal Acquisition 52.237±9 Waiver of Limitation on fixed-price basis and, therefore, are not Severance Payments to Foreign Nationals. Regulation (FAR) revisions developed subject to the FAR cost principles. under FAR case 94–750 to implement As prescribed in 37.113–2(b), use the Section 2192 of the Act. C. Paperwork Reduction Act following clause: The final rule revisions to the cost The Paperwork Reduction Act does Waiver of Limitation on Severance Payments principles at FAR 31.205–13 and not apply because the changes to the to Foreign Nationals (Oct 1995) 31.205–14 are made as a result of FAR do not impose recordkeeping or (a) Pursuant to 10 U.S.C. 2324(e)(3)(A) or Section 2192 of the Federal Acquisition information collection requirements, or 41 U.S.C. 256(e)(2)(A), as applicable, the cost Streamlining Act of 1994. An interim collection of information from offerors, allowability limitations in FAR 31.205– rule was promulgated to meet the 120- contractors, or members of the public 6(g)(3) are waived. day and 90-day deadlines in Section which require the approval of OMB (b) This clause may be incorporated into 2192 for changes to FAR 31.205–13 and under 44 U.S.C. 3501, et seq. subcontracts issued under this contract, if 31.205–14, respectively. The interim approved by the Contracting Officer. rule was published in the Federal D. Public Comments (End of clause) Register on January 13, 1995, 60 FR Twenty-three public comments were [FR Doc. 95–19861 Filed 8–15–95; 8:45 am] 3314. This final rule replaces the received in response to the interim rule BILLING CODE 6820±EP±M interim rule in its entirety for any published in the Federal Register on contracts containing the interim rule. January 13, 1995 (60 FR 3314). These Thus, the provisions of the interim rule comments were considered in the 48 CFR Part 31 will not apply to costs incurred under formulation of this final rule. any contract under any circumstances. [FAC 90±31, FAR Case 94±750; Item V] To comply with the requirements of List of Subjects in 48 CFR Part 31 RIN 9000±AG33 paragraph (a)(1) of Section 2192, the Government procurement. final rule provides that the costs of gifts Dated: August 7, 1995 Federal Acquisition Regulation; are expressly unallowable (31.205– Edward C. Loeb, Entertainment, Gift, and Recreation 13(b)). To clarify that the rule does not Deputy Project Manager for the Costs for Contractor Employees disallow costs which meet the Implementation of the Federal Acquisition definition of and are properly accounted AGENCIES: Streamlining Act of 1994. Department of Defense (DOD), for as compensation or recognition General Services Administration (GSA), awards, the final rule provides a Therefore, 48 CFR Part 31 is amended and National Aeronautics and Space reference to 31.205–6, which allows as set forth below: Administration (NASA). compensation awards recognizing PART 31ÐCONTRACT COST ACTION: Final rule. performance but also allows for PRINCIPLES AND PROCEDURES recognition awards pursuant to an SUMMARY: This final rule amends the established contractor plan or policy. 1. The authority citation for 48 CFR Federal Acquisition Regulation to revise Additionally, it makes the costs of Part 31 continues to read as follows: the cost principles governing recreation expressly unallowable with entertainment, gift and recreation costs Authority: 40 U.S.C. 486(c); 10 U.S.C. the exception of costs of company for contractor employees. This chapter 137; and 42 U.S.C. 2473(c). sponsored employee sports teams and regulatory action was subject to Office 2. Section 31.205–13 is revised to read employee organizations designed to of Management and Budget review as follows: improve company loyalty, team work, or under Executive Order 12866, dated physical fitness. The final rule retains 31.205±13 Employee morale, health, September 30, 1993. the allowability of ‘‘wellness/fitness welfare, food service, and dormitory costs EFFECTIVE DATE: October 1, 1995. centers’’ found in the interim rule. The and credits. FOR FURTHER INFORMATION CONTACT: final rule eliminates the requirement (a) Aggregate costs incurred on Mr. Clarence M. Belton, Team Leader, that costs are only allowable to the activities designed to improve working Cost Principles Team, at (703) 602– extent that the net amount per employee conditions, employer-employee 2357, in reference to this FAR case. For must be reasonable for all categories of relations, employee morale, and general information, contact the FAR costs under this cost principle. employee performance (less income Secretariat, Room 4037, GS Building, To comply with the requirements of generated by these activities) are Washington, DC 20405 (202) 501–4755. paragraph (a)(2) of Section 2192, the allowable, except as limited by Please cite FAC 90–31, FAR case 94– final rule revises the cost principle at paragraphs (b), (c), and (d) of this 750. 31.205–14 to incorporate the statutory subsection. Some examples of allowable Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42663 activities are house publications, health similar sources, may be included as Secretariat, Room 4037, GS Building, clinics, wellness/fitness centers, costs incurred under paragraph (a) of Washington, DC 20405 (202) 501–4755. employee counseling services, and food this subsection only to the extent that Please cite FAC 90–31, FAR case 94– and dormitory services, which include the contractor demonstrates that an 752. operating or furnishing facilities for equivalent amount of the costs incurred cafeterias, dining rooms, canteens, by the employee organization would be SUPPLEMENTARY INFORMATION: lunch wagons, vending machines, living allowable if directly incurred by the A. Background accommodations, or similar types of contractor. services for the contractor’s employees 3. Section 31.205–14 is revised to read The Federal Acquisition Streamlining at or near the contractor’s facilities. as follows: Act of 1994, Pub. L. 103–355 (the Act), (b) Costs of gifts are unallowable. provides authorities that streamline the (Gifts do not include awards for 31.205±14 Entertainment costs. acquisition process and minimize performance made pursuant to 31.205– Costs of amusement, diversions, burdensome Government-unique 6(f) or awards made in recognition of social activities, and any directly requirements. Major changes that can be employee achievements pursuant to an associated costs such as tickets to shows expected in the acquisition process as a established contractor plan or policy.) or sports events, meals, lodging, rentals, result of the Act’s implementation (c) Costs of recreation are transportation, and gratuities are include changes in the areas of unallowable, except for the costs of unallowable. Costs made specifically Commercial Item Acquisition, the Truth employees’ participation in company unallowable under this cost principle in Negotiations Act, and introduction of sponsored sports teams or employee are not allowable under any other cost the Federal Acquisition Computer organizations designed to improve principle. Costs of membership in Network (FACNET). company loyalty, team work, or social, dining, or country clubs or other physical fitness. organizations having the same purposes Section 2151 of the Act amends (d) Losses from operating food and are also unallowable, regardless of Section 306 of the Federal Property and dormitory services may be included as whether the cost is reported as taxable Administrative Services of 1949 (41 costs only if the contractor’s objective is income to the employees. U.S.C. 256). It extends requirements for to operate such services on a break-even contractor certification of indirect costs [FR Doc. 95–19862 Filed 8–15–95; 8:45 am] basis. Losses sustained because food to the civilian agencies. Pursuant to 10 services or lodging accommodations are BILLING CODE 6820±EP±M U.S.C. 2324(h), the Department of furnished without charge or at prices or Defense already determines or negotiates contractor indirect cost rates rates which obviously would not be 48 CFR Parts 42 and 52 conducive to the accomplishment of the on the basis of a certified proposal. [FAC 90±31; FAR Case 94±752; Item VI] above objective are not allowable. A loss B. Regulatory Flexibility Act may be allowed, however, to the extent RIN 9000±AG29 that the contractor can demonstrate that The Department of Defense, the unusual circumstances exist (e.g., where Federal Acquisition Regulation; General Services Administration, and the contractor must provide food or Contractor Overhead Certification the National Aeronautics and Space dormitory services at remote locations Administration certify that this final AGENCIES: where adequate commercial facilities Department of Defense (DOD), rule will not have a significant are not reasonably available; or where General Services Administration (GSA), economic impact on a substantial charged but unproductive labor costs and National Aeronautics and Space number of small entities within the would be excessive but for the services Administration (NASA). meaning of the Regulatory Flexibility provided or where cessation or ACTION: Final rule. Act, 5 U.S.C. 601, et seq., because most reduction of food or dormitory SUMMARY: contracts awarded to small businesses operations will not otherwise yield net This final rule is issued pursuant to the Federal Acquisition are awarded competitively on a firm- cost savings) such that even with fixed-price basis and, therefore, do not efficient management, operating the Streamlining Act of 1994 (the Act) to implement the requirements for require submission of indirect cost rate services on a break-even basis would proposals. require charging inordinately high contractor certification of indirect costs prices, or prices or rates higher than (see proposed rule published at 59 FR C. Paperwork Reduction Act those charged by commercial 65464, December 19, 1994). Section The Paperwork Reduction Act does establishments offering the same 2151 of the Act amended Section 306 of not apply because the changes to the services in the same geographical areas. the Federal Property and Administrative FAR do not impose additional Costs of food and dormitory services Services Act of 1949 (41 U.S.C. 256). recordkeeping or information collection shall include an allocable share of This provision extended to the civilian requirements, or collections of indirect expenses pertaining to these agencies the same certificate of indirect information from offerors, contractors, activities. costs which is currently applicable to (e) When the contractor has an Department of Defense (DOD) contracts, or members of the public which require arrangement authorizing an employee pursuant to 10 U.S.C. 2324(h). This the approval of the Office of association to provide or operate a regulatory action was subject to Office Management and Budget under 44 service, such as vending machines in of Management and Budget review U.S.C. 3501, et. seq. under Executive Order 12866, dated the contractor’s plant, and retain the D. Public Comments profits, such profits shall be treated in September 30, 1993. the same manner as if the contractor EFFECTIVE DATE: October 1, 1995. Seven public comments were received were providing the service (but see FOR FURTHER INFORMATION CONTACT: Mr. in response to the proposed rule paragraph (f) of this subsection). Clarence Belton, Cost Principles Team published in the Federal Register on (f) Contributions by the contractor to Leader, at (703) 602–2357, in reference December 19, 1994 (59 FR 65464). These an employee organization, including to this FAR case. For general comments were considered in the funds from vending machine receipts or information, contact the FAR formulation of this final rule. 42664 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations List of Subjects in 48 CFR Parts 42 and (ii) Set low enough to ensure that billing or final indirect costs rates for 52 potentially unallowable costs will not (identify period covered by rate) are allowable in accordance with the Government procurement. be reimbursed. (d) False certification. The contracting requirements of contracts to which they Dated: August 7, 1995. officer should consult with legal apply and with the cost principles of the Federal Acquisition Regulation (FAR) and its Edward C. Loeb, counsel to determine appropriate action supplements applicable to those contracts; Deputy Project Manager for the when a contractor certificate of indirect 3. This proposal does not include any costs Implementation of the Federal Acquisition costs is thought to be false. which are unallowable under applicable cost Streamlining Act of 1994. (e) Penalties for unallowable costs. 10 principles of the FAR or its supplements, Therefore, 48 CFR Parts 42 and 52 are U.S.C. 2324(a) through (d) and 41 U.S.C. including, but not limited to: advertising and amended as set forth below: 256 (a) through (d) prescribe penalties public relations costs, contributions and donations, entertainment costs, fines and 1. The authority citation for 48 CFR for submission of unallowable costs in final indirect cost rate proposals (see penalties, lobbying costs, defense of fraud Parts 42 and 52 continues to read as proceedings, and goodwill; and follows: 42.709 for penalties and contracting officer responsibilities). 4. All costs included in this proposal are Authority: 40 U.S.C. 486(c); 10 U.S.C. (f) Contract clause. (1) Except as properly allocable to Government contracts chapter 137; and 42 U.S.C. 2473(c). on the basis of a beneficial or causal provided in paragraph (f)(2) of this relationship between the expenses incurred PART 42ÐCONTRACT subsection, the clause at 52.242–4, and the contracts to which they are allocated ADMINISTRATION Certification of Indirect Costs, shall be in accordance with applicable acquisition incorporated into all solicitations and regulations. 42.703 General. contracts which provide for— I declare under penalty of perjury that the 2. Section 42.703 is redesignated as (i) Interim reimbursement of indirect foregoing is true and correct. llllllllllllllllll 42.703–1 and a new section 42.703 is costs; Firm: added as a heading to read as set forth (ii) Establishment of final indirect Signature: llllllllllllllll above. costs rates; or Name of Certifying Official: llllllll (iii) Contract financing that includes 3. Section 42.703–2 is added to read Title: llllllllllllllllll interim payment of indirect costs, e.g., as follows: llllllllllll progress payments based on cost Date of Execution: (End of clause) 42.703±2 Certificate of indirect costs. (Subpart 32.5) or progress payments (a) General. In accordance with 10 based on percentage or stage of [FR Doc. 95–19863 Filed 8–15–95; 8:45 am] U.S.C. 2324(h) and 41 U.S.C. 256(h), a completion. BILLING CODE 6820±EP±M proposal shall not be accepted and no (2) The Department of Energy may agreement shall be made to establish provide an alternate clause in its agency billing rates or final indirect cost rates supplement for its Management and 48 CFR Parts 1 and 6 unless the costs have been certified by Operating contracts. the contractor. PART 52ÐSOLICITATION PROVISIONS [Federal Acquisition Circular 90±31; Item VII] (b) Waiver of certification. (1) The AND CONTRACT CLAUSES agency head, or designee, may waive the Federal Acquisition Regulation; certification requirement when— 4. Section 52.242–4 is added to read Technical Amendments (i) It is determined to be in the as follows: interest of the United States; and 52.242±4 Certification of Indirect Costs. AGENCIES: Department of Defense (DOD), (ii) The reasons for the determination As prescribed in 42.703–2(f), insert General Services Administration (GSA), are put in writing and made available to the following clause: and National Aeronautics and Space the public. Administration (NASA). (2) A waiver may be appropriate for Certification of Indirect Costs (Oct 1995) ACTION: Final rule; technical a contract with— (a) The Contractor shall— amendments. (i) A foreign government or (1) Certify any proposal to establish or international organization, such as a modify billing rates or to establish final indirect cost rates; SUMMARY: In Federal Acquisition subsidiary body of the North Atlantic Circular (FAC) 84–60 (55 FR 36782, Treaty Organization; (2) Use the format in paragraph (c) of this clause to certify; and September 6, 1990), section 52.237–9 (ii) A state or local government (3) Have the certificate signed by an was removed and reserved. This entry subject to OMB Circular A–87; individual of the Contractor’s organization at was inadvertently left in § 1.160. This (iii) An educational institution subject a level no lower than a vice president or chief document corrects § 1.106 by removing to OMB Circular A–21; and financial officer of the business segment of ‘‘52.237–9’’ from the List of approved (iv) A nonprofit organization subject the Contractor that submits the proposal. OMB control numbers. (b) Failure by the Contractor to submit a to OMB Circular A–122. In FAC 84–56 (55 FR 3881, February (c) Failure to certify. (1) If the signed certificate, as described in this clause, shall result in payment of indirect costs at 5, 1990), section 6.304(a)(1) was contractor has not certified its proposal rates unilaterally established by the incorrectly revised. This document for billing rates or indirect costs rates Government. correctly revises section 6.304(a)(1) by and a waiver is not appropriate, the (c) The certificate of indirect costs shall removing subparagraphs (a)(1)(i) contracting officer shall unilaterally read as follows: through (a)(1)(iv). establish the rates if they are necessary Certificate of Indirect Costs for continuation of the contract. DATES: Effective Date: August 16, 1995. (2) Rates established unilaterally This is to certify that to the best of my FOR FURTHER INFORMATION CONTACT: knowledge and belief: should be— 1. I have reviewed this indirect cost The FAR Secretariat, Room 4037, GS (i) Based on audited historical data or proposal; Building, Washington, DC 20405, (202) other available data as long as 2. All costs included in this proposal 501–4755. Please cite FAC 90–31, unallowable costs are excluded; and (identify proposal and date) to establish Technical Corrections. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42665 List of Subjects in 48 CFR Parts 1 and 6 Government procurement. Dated: August 7, 1995. C. Allen Olson, Director, Office of Federal Acquisition Policy. Therefore, 48 CFR Parts 1 and 6 are amended as set forth in the technical amendments appearing below: 1. The authority citation for 48 CFR Parts 1 and 6 continued to read as follows: Authority: 40 U.S.C. 486(c); 10 U.S.C. Chapter 137; and 42 U.S.C. 2473(c). PART 1ÐFEDERAL ACQUISITION REGULATIONS SYSTEM 1.106 [Amended] 2. Section 1.106 is amended under the ‘‘FAR Segment’’ and ‘‘OMB Control Number’’ headings by removing ‘‘52.237–9’’ and ‘‘9000–0103’’, respectively. PART 6ÐCOMPETITION REQUIREMENTS 6.304 [Amended] 3. Section 6.304 is amended by removing paragraphs (a)(1)(i) through (a)(1)(iv). [FR Doc. 95–19864 Filed 8–15–95; 8:45 am] BILLING CODE 6820±EP±M federal register August 16,1995 Wednesday Regulations; ProposedRule Refuge-Specific HuntingandFishing 50 CFRPart32 Fish andWildlifeService Interior Department ofthe Part III 42667 42668 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules DEPARTMENT OF THE INTERIOR wildlife refuge is opened to migratory Secretary of the Interior to permit the game bird hunting, upland game use of any area within the Refuge Fish and Wildlife Service hunting, big game hunting or sport System for any purpose, including but fishing through publication in the not limited to, hunting, fishing and 50 CFR Part 32 Federal Register. These regulations may public recreation, accommodations and RIN 1018±AC80 list the wildlife species that may be access, when he determines that such hunted or are subject to sport fishing, uses are compatible with the major Refuge-Specific Hunting and Fishing seasons, bag limits, methods of hunting purpose(s) for which the area was Regulations or fishing, descriptions of open areas, established. and other provisions as appropriate. The Refuge Recreation Act authorizes AGENCY: Fish and Wildlife Service, Previously issued refuge-specific the Secretary to administer areas within Interior. regulations for hunting and fishing are the Refuge System for public recreation ACTION: Proposed rule. contained in 50 CFR part 32. Many of as an appropriate incidental or the amendments to these sections are secondary use only to the extent that it SUMMARY: The Fish and Wildlife Service being promulgated to standardize and is practicable and not inconsistent with (Service) proposes to amend certain clarify the existing language of these the primary purpose(s) for which the regulations that pertain to migratory regulations. areas were established. The Refuge game bird hunting, upland game Cross Creeks National Wildlife Refuge Recreation Act also authorizes the hunting, big game hunting and sport in Tennessee was opened to migratory Secretary to issue regulations to carry fishing on individual national wildlife game bird hunting in 1984; however, out the purposes of the Act. Hunting refuges. Refuge hunting and fishing this hunting was suspended for geese and sport fishing plans are developed programs are reviewed annually to for several years. Now, in cooperation for each refuge prior to opening it to determine whether the individual refuge with the State of Tennessee, the resident hunting or fishing. In many cases, regulations governing these programs Canada geese hunt is being restored. refuge-specific hunting and fishing should be modified, deleted or have Text is being added to paragraph A. regulations are included in the hunting additions made to them. Changing (Hunting of Migratory Game Birds) of and sport fishing plans to ensure the environmental conditions, State and that refuge listing to reflect this change. compatibility of the hunting and sport Federal regulations, and other factors The Service has made a grammatical fishing programs with the purposes for affecting wildlife populations and correction in paragraph C. (Big Game which the refuge was established. Initial habitat may warrant modifications to Hunting) of Wichita Mountains National compliance with the NWRSAA and ensure the continued compatibility of Wildlife Refuge in Oklahoma in Refuge Recreation Act is ensured when hunting and fishing with the purposes correcting the ‘‘conditions’’ language hunting and sport fishing plans are for which the individual refuges were from is permitted to are permitted. The developed, and the determinations established. Modifications are designed, State of Alaska made no revisions to its required by these acts are made prior to to the extent practical, to make refuge regulations. The alphabetical listing of the addition of refuges to the lists of hunting and fishing programs consistent North Platte National Wildlife Refuge is areas open to hunting and fishing in 50 with State regulations. added under the State of Nebraska. The CFR part 32. Continued compliance is DATES: Comments on this proposed rule refuge has been officially opened to ensured by annual review of hunting will be accepted on or before September sport fishing under State fishing and sport fishing programs and 15, 1995. regulations; however, it was regulations. ADDRESSES: Assistant Director—Refuges inadvertently dropped from the listing Paperwork Reduction Act and Wildlife, U.S. Fish and Wildlife when refuge hunting and fishing The information collection Service, 1849 C Street NW., MS 670 regulations were consolidated in 1993. requirements for part 32 are found in 50 ARLSQ, Washington, DC 20240. [58 FR 5064, January 19, 1993]. CFR part 25 and have been approved by FOR FURTHER INFORMATION CONTACT: Request for Comments the Office of Management and Budget Duncan L. Brown, Esq. at the above Department of the Interior policy is, under 44 U.S.C. 3501 et seq. and address; Telephone (703) 358–1744. whenever practicable, to afford the assigned clearance number 1018–0014. SUPPLEMENTARY INFORMATION: 50 CFR public a meaningful opportunity to The information is being collected to part 32 contains provisions governing participate in the rulemaking process. A assist the Service in administering these hunting and fishing on national wildlife 30-day comment period is specified in programs in accordance with statutory refuges. Hunting and fishing are order to facilitate public input prior to authorities which require that regulated on refuges to (1) ensure the opening of the 1995–1996 hunting recreational uses be compatible with the compatibility with refuge purposes, (2) season. Accordingly, interested persons primary purposes for which the areas properly manage the wildlife resource, may submit written comments were established. The information (3) protect other refuge values, and (4) concerning this proposed rule to the requested in the application form is ensure refuge user safety. On many person listed above under the heading required to obtain a benefit. refuges, the Service policy of adopting ADDRESSES. All substantive comments The public reporting burden for the State hunting regulations is adequate in will be reviewed and considered. application form is estimated to average meeting these objectives. On other six (6) minutes per response, including refuges, it is necessary to supplement Statutory Authority time for reviewing instructions, State regulations with more restrictive The National Wildlife Refuge System gathering and maintaining data, and Federal regulations to ensure that the Administration Act (NWRSAA) of 1966, completing the form. Direct comments Service meets its management as amended (16 U.S.C. 668dd), and the on the burden estimate or any other responsibilities, as outlined under the Refuge Recreation Act of 1962 (16 aspect of this form to the Service section entitled ‘‘Conformance with U.S.C. 460k) govern the administration Information Collection Clearance Statutory and Regulatory Authorities.’’ and public use of national wildlife Officer, U.S. Fish and Wildlife Service, Refuge-specific hunting and fishing refuges. Specifically, Section 4(d)(1)(A) 1849 C Street NW., MS 224 ARLSQ, regulations may be issued only after a of the NWRSAA authorizes the Washington, D.C. 20240; and the Office Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42669 of Management and Budget, Paperwork conditions that apply to individual and Wildlife, U.S. Fish and Wildlife Reduction Project (1018–0014), refuge hunts, sport fishing activities and Service, 1011 E. Tudor Rd., Washington, D.C. 20530. maps of the respective areas are retained Anchorage, Alaska 99503; at refuge headquarters and can be Telephone (907) 786–3545. Economic Effect obtained from the regional offices of the Duncan L. Brown, Esq., Division of This rulemaking was not subject to U.S. Fish and Wildlife Service at the Refuges, U.S. Fish and Wildlife the Office of Management and Budget addresses listed below: Service, Washington, DC 20240, is the review under Executive Order 12866. In Region 1— primary author of this rulemaking addition, a review under the Regulatory California, Hawaii, Idaho, Nevada, document. Flexibility Act of 1980 (5 U.S.C. 601 et Oregon, and Washington. seq.) has been done to determine Assistant Regional Director—Refuges List of Subjects in 50 CFR Part 32 whether the proposed rulemaking and Wildlife, U.S. Fish and Wildlife Hunting, Fishing, Reporting and would have a significant effect on a Service, Eastside Federal Complex, recordkeeping requirements, Wildlife, substantial number of small entities, Suite 1692, 911 N.E. 11th Avenue, Wildlife refuges. which include businesses, organizations Portland, Oregon 97232–4181; Accordingly, Part 32 of Chapter I of or governmental jurisdictions. This Telephone (503) 231–6214. proposed rule would have minimal Region 2— Title 50 of the Code of Federal effect on such entities. Arizona, New Mexico, Oklahoma and Regulations is proposed to be amended as follows: Federalism Texas. Assistant Regional Director—Refuges PART 32Ð[AMENDED] This proposed rule will not have and Wildlife U.S. Fish and Wildlife substantial direct effects on the States, Service, Box 1306, Albuquerque, 1. The authority citation for Part 32 on the relationship between the national New Mexico 87103; Telephone continues to read as follows: government and the States, or on the (505) 766–1829. distribution of power and Authority: 5 U.S.C. 301; 16 U.S.C. 460k, Region 3— 664, 668dd, and 715i. responsibilities among the various Illinois, Indiana, Iowa, Michigan, levels of government. Therefore, in Minnesota, Missouri, Ohio and § 32.7 [Amended]. accordance with Executive Order 12612, Wisconsin. it is determined that this proposed rule 2. Section 32.7 is amended by adding Assistant Regional Director—Refuges the alphabetical listing of ‘‘North Platte does not have sufficient Federalism and Wildlife, U.S. Fish and Wildlife implications to warrant the preparation National Wildlife Refuge’’ under the Service, Federal Building, Fort State of Nebraska. of a Federalism Assessment. Snelling, Twin Cities, Minnesota 3. Section 32.22 Arizona is amended 55111; Telephone (612) 725–3507. Environmental Considerations by revising paragraph A. of Bill Region 4— Williams River National Wildlife Compliance with the National Alabama, Arkansas, Florida, Georgia, Refuge; and by adding paragraphs A.8. Environmental Policy Act of 1969 Kentucky, Louisiana, Mississippi, through A.13. inclusive, revising (NEPA) (42 U.S.C. 4332(C)) is ensured North Carolina, Tennessee, South paragraph B.4. and adding paragraphs when hunting and sport fishing plans Carolina, Puerto Rico and the Virgin B.5. and B.6. to Cibola National Wildlife are developed, and the determinations Islands. required by this act are made prior to Assistant Regional Director—Refuges Refuge to read as follows: the addition of refuges to the lists of and Wildlife, U.S. Fish and Wildlife § 32.22 Arizona. areas open to hunting and fishing in 50 Service, 1875 Century Boulevard, * * * * * CFR part 32. The changes in hunting Room 324, Atlanta, Georgia 30345; and fishing herein proposed have been Telephone (404) 679–7152. Bill Williams River National Wildlife reviewed with regard to Section 7 of the Region 5— Refuge Endangered Species Act of 1973 (16 Connecticut, Delaware, District of U.S.C. 1531–1543) and have been found A. Hunting of Migratory Game Birds. Columbia, Maine, Maryland, Hunting of mourning and white-winged to either have no affect on or are not Massachusetts, New Hampshire, doves is permitted on designated areas of the likely to adversely affected listed New Jersey, New York, refuge subject to the following condition: species or critical habitat. The Pennsylvania, Rhode Island, Legal weapon is shotgun only. amendment of refuge-specific hunting Vermont, Virginia and West * * * * * and fishing regulations are subject to a Virginia. categorical exclusion from the NEPA Assistant Regional Director—Refuges Cibola National Wildlife Refuge process if they do not significantly alter and Wildlife, U.S. Fish and Wildlife A. Hunting of Migratory Game the existing use of a particular national Service, 300 Westgate Center Drive, Birds. * * * wildlife refuge. The Service exclusion Hadley, Massachusetts 01035; * * * * * found at 516 DM 6, App. 1, 1.4B(5) is Telephone (413) 253–8550. 8. Hunting is not permitted within 50 yards employed here as these amendments are Region 6— of any road or levee. considered ‘‘[m]inor changes in the Colorado, Kansas, Montana, Nebraska, 9. Decoys are required for waterfowl amounts or types of public use on FWS North Dakota, South Dakota, Utah hunting and must be removed from the or State-managed lands, in accordance and Wyoming. refuge daily. with regulations, management plans, Assistant Regional Director—Refuges 10. Waterfowl hunters are limited to 10 and procedures.’’ These refuge-specific and Wildlife, U.S. Fish and Wildlife shells per day in Farm Unit 2. hunting and fishing revisions to existing 11. During the Arizona waterfowl season, Service, Box 25486, Denver Federal Farm Unit 2 is closed to dove hunting until regulations simply qualify or otherwise Center, Denver, Colorado 80225; noon each day. define an existing hunting or fishing Telephone (303) 236–8145. 12. In Farm Unit 2, waterfowl hunters must activity for purposes of resource Region 7— remain within 50 feet of designated station management. Information regarding Alaska. while hunting except when actively hunting and fishing permits and the Assistant Regional Director—Refuges retrieving downed birds. 42670 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 13. During the goose season the Hart Mine of Arkansas Highway 1, frogging is permitted San Luis National Wildlife Refuge Marsh Area is closed to hunting until 10 a.m. for the entire State season. The use of bow daily. and arrow for taking bullfrogs is prohibited. A. Hunting of Migratory Game Birds. * ** B. Upland Game Hunting. * * * 5. Section 32.24 California is * * * * * * * * * * amended by revising paragraphs A.1., 5. Vehicles may stop only at designated 4. Hunting of cottontail rabbit is permitted A.2., and A.3. of Delevan National parking areas; the dropping of passengers or from September 1 through the last day of the Wildlife Refuge; by adding new equipment, or stopping between designated parking areas is prohibited. respective State’s quail season. paragraph A.5. to Kesterson National 5. During the Arizona waterfowl season, B. Upland Game Hunting. Hunting of Wildlife Refuge; by revising paragraphs pheasants is permitted on designated areas of hunting of quail and rabbit is not permitted A.1. and A.2. of Modoc National in Farm Unit 2 until noon. the refuge subject to the following 6. Hunting is not permitted within 50 yards Wildlife Refuge; by revising paragraphs conditions: of any road or levee. A.1., A.2., and B.1. of Sacramento 1. Hunters shall possess and use, while in National Wildlife Refuge; and by adding the field, only non-toxic shotshells. * * * * * new paragraph A.5. and revising 2. Hunters may not possess more than 25 4. Section 32.23 Arkansas is amended by shotshells while in the field. paragraph B. of San Luis National revising paragraphs B. and C. of Felsenthal * * * * * National Wildlife Refuge; by revising Wildlife Refuge to read as follows: paragraphs B. and C. of Overflow National 6. Section 32.25 Colorado is amended Wildlife Refuge; and by revising paragraphs § 32.24 California. by revising paragraphs A. and B. of D.1. and D.4. of White River National * * * * * Arapaho National Wildlife Refuge to Wildlife Refuge to read as follows: read as follows: Delevan National Wildlife Refuge § 32.23 Arkansas. § 32.25 Colorado. A. Hunting of Migratory Game Birds.* ** * * * * * 1. Firearms must be unloaded while being * * * * * transported between parking areas and Arapaho National Wildlife Refuge Felsenthal National Wildlife Refuge spaced blind areas. A. Hunting of Migratory Game Birds. * * * * * 2. Snipe hunting is not permitted in the Hunting of migratory game birds is allowed B. Upland Game Hunting. Hunting of spaced blind area. on designated areas of the refuge pursuant to quail, squirrel, rabbit, raccoon, opossum, 3. Hunters assigned to the spaced blind State law. beaver, nutria, and coyote is permitted on area are restricted to within 100 feet of their B. Upland Game Hunting. Upland game designated areas of the refuge subject to the assigned hunt site except for retrieving hunting is allowed on designated areas of the following condition: Permits are required. downed birds, placing decoys, or traveling to refuge pursuant to State law and subject, C. Big Game Hunting. Hunting of white- and from the area. also, to the following condition: Hunters shall possess and use, while in the field, only tailed deer, turkey and feral hogs is permitted * * * * * on designated areas of the refuge subject to nontoxic shot. the following condition: Permits are required. Kesterson National Wildlife Refuge * * * * * * * * * * A. Hunting of Migratory Game Birds. * ** 7. Section 32.27 Delaware is amended by adding new paragraph B.4., revising Overflow National Wildlife Refuge * * * * * introductory language of paragraph C., 5. Access to Salt Slough is via boats only. * * * * * Boats may only be launched at the Highway and adding new paragraph C.4. to B. Upland Game Hunting. Hunting of 140 (Fremont Ford State Recreational Area) Bombay Hook National Wildlife Refuge; quail, squirrel, rabbit, raccoon, opossum, and Highway 165 access points. The use of and by adding new paragraph B.4. to beaver, nutria, and coyote is permitted on air-thrust and/or inboard water thrust boats Prime Hook National Wildlife Refuge to designated areas of the refuge subject to the is not permitted. The speed limit of 5 mph read as follows: following condition: Permits are required. is in effect. § 32.27 Delaware. C. Big Game Hunting. Hunting of white- * * * * * tailed deer, turkey, and feral hogs is * * * * * permitted on designated areas of the refuge Modoc National Wildlife Refuge subject to the following condition: Permits Bombay Hook National Wildlife Refuge are required. A. Hunting of Migratory Game Birds. * ** 1. A permit issued by the refuge to hunters * * * * * * * * * * with advance reservations only is required B. Upland Game Hunting. * * * White River National Wildlife Refuge for the first weekend. * * * * * 2. After the first weekend of the open 4. Shotgun hunters will possess and use, * * * * * season, hunting is permitted only on while in the field, only non-toxic shot. D. Sport Fishing. * * * Tuesdays, Thursdays and Saturdays. Hunters * * * * * 1. Fishing is permitted from March 1 must check in and out of the refuge by use C. Big Game Hunting. Hunting of deer and through November 30 except as posted and of self-service permits. turkey is permitted on designated areas of the as follows: fishing is permitted year-round in * * * * * LaGrueu, Essex, Prairie, and Brooks Bayous, refuge subject to the following conditions: Big Island Chute, Moon Lake and Belknap Sacramento National Wildlife Refuge * * * * * Lake next to Arkansas Highway 1, Indian 4. A valid State permit is required for Bay, the Arkansas Post Canal and adjacent A. Hunting of Migratory Game Birds. * ** turkey hunting. 1. Firearms must be unloaded while being drainage ditches, those borrow ditches * * * * * located adjacent to the West bank of that transported between parking areas and portion of the White River Levee north of the spaced blind areas. Prime Hook National Wildlife Refuge Arkansas Power and Light Company power 2. Snipe hunting is not permitted in the line right-of-way, and all refuge owned spaced blind area. * * * * * waters located North of Arkansas Highway 1. * * * * * B. Upland Game Hunting. * * * * * * * * B. Upland Game Hunting. * * * * * * * * 4. Frogging is permitted on all refuge 1. A special one-day only pheasant hunt is 4. Shotgun hunters will possess and use, while in the field, only non-toxic shot. owned waters open for sport fishing as permitted in the spaced blind area on the follows: South of Arkansas Highway 1, first Monday after the opening of the State * * * * * frogging is permitted from the beginning of pheasant hunting season. 8. Section 32.31 Idaho is amended by the State season through November 30; North * * * * * revising paragraph D. of Kootenai Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42671 National Wildlife Refuge to read as B. Upland Game Hunting. * * * and use of lead shot is still permitted for wild follows: * * * * * turkey hunting. 3. Only non-toxic shot may be used or * * * * * § 32.31 Idaho. possessed while hunting bobwhite quail. Walnut Creek National Wildlife Refuge * * * * * C. Big Game Hunting. Hunting of white- tailed deer is permitted on designated areas * * * * * Kootenai National Wildlife Refuge of the refuge subject to the following B. Upland Game Hunting. * * * * * * * * conditions: * * * * * D. Sport Fishing. Fishing is permitted only 1. Hunters must check in and out of the 3. All hunters must wear one or more of on Myrtle Creek subject to the following refuge each day of hunting. the following articles of visible, external, condition: Only bank fishing is permitted. 2. Hunting blinds may not be left over solid blaze orange clothing: a vest, coat, Fishing from boats, float tubes, or other night on the refuge. jacket, sweatshirt, sweater, shirt or coveralls. personal flotation devices is prohibited. * * * * * * * * * * * * * * * Mark Twain National Wildlife Refuge 12. Section 32.35 Kansas is amended 9. Section 32.32 Illinois is amended by revising paragraphs B. and C. of Flint by revising paragraph D.1. and adding * * * * * Hills National Wildlife Refuge; and by new paragraph D.5. to Chautauqua B. Upland Game Hunting. * * * revising paragraphs A. and B. of Quivira National Wildlife Refuge; by adding * * * * * National Wildlife Refuge to read as new paragraphs A.3., A.4. and B.3. to 3. Only non-toxic shot may be used or follows: Crab Orchard National Wildlife Refuge; possessed while hunting all permitted birds, by adding new paragraph B.3., and except wild turkeys. The possession and use § 32.35 Kansas. revising paragraph C. of Cypress Creek of lead shot is still permitted for wild turkey * * * * * hunting. National Wildlife Refuge; by adding Flint Hills National Wildlife Refuge new paragraph B.3. to Mark Twain * * * * * National Wildlife Refuge; and by adding * * * * * Upper Mississippi River National B. Upland Game Hunting. Hunting of new paragraph B.4. to Upper Wildlife and Fish Refuge Mississippi River National Wildlife upland game is permitted on designated areas of the refuge subject to the following Refuge to read as follows: * * * * * B. Upland Game Hunting. * * * conditions: § 32.32 Illinois. 1. Dogs may not be used for hunting * * * * * furbearing animals or non-game animals. * * * * * 4. Only non-toxic shot may be used or 2. Hunters shall possess and use, while in possessed while hunting squirrels, and all Chautauqua National Wildlife Refuge the field, only non-toxic shot or rimfire permitted birds, except wild turkeys. The firearms. * * * * * possession and use of lead shot is still C. Big Game Hunting. Hunting of big game D. Sport Fishing. * * * permitted for wild turkey hunting. is permitted on designated areas of the refuge 1. Sport fishing is allowed on Lake * * * * * subject to the following conditions: Chautauqua from February 15 through 1. Only shotguns, muzzleloading firearms, October 15. Sport fishing is not allowed in 10. Section 32.33 Indiana is amended or bow and arrow are permitted except the Waterfowl Hunting Area during by adding new paragraph B.4. to during controlled hunts. waterfowl hunting season. Muscatatuck National Wildlife Refuge to 2. Hunters shall possess and use, while in * * * * * read as follows: the field, only non-toxic shot while shotgun hunting for turkey. 5. Weis Lake on the Cameron Unit is closed § 32.33 Indiana. to all public entry from October 16 through * * * * * February 14. * * * * * Quivira National Wildlife Refuge Muscatatuck National Wildlife Refuge Crab Orchard National Wildlife Refuge A. Hunting of Migratory Game Birds. A. Hunting of Migratory Game Birds. * * * * * Hunting of geese, ducks, coots, rails (Virginia *** B. Upland Game Hunting. * * * and Sora only), mourning doves, and common snipe is permitted on designated * * * * * * * * * * areas of the refuge subject to the following 3. Waterfowl hunters may not possess 4. Only non-toxic shot may be used or condition: Non-toxic shot is required when more than 20 shells during the possessed while hunting for bobwhite quail. hunting any game on the refuge. The combined duck and goose seasons. * * * * * possession of lead shot in the field is Goose hunters may not possess more prohibited. 11. Section 32.34 Iowa is amended by than 10 shells during the goose season. B. Upland Game Hunting. Hunting of revising paragraph B. of Union Slough 4. Hunting in the Cambria Neck dove pheasant, bobwhite quail, squirrel, and rabbit National Wildlife Refuge; and by adding field is closed on Tuesdays and is permitted on designated areas of the refuge new paragraph B.3. to Walnut Creek subject to the following conditions: Thursdays. All Cambria Neck dove National Wildlife Refuge to read as 1. The refuge is closed to all hunting from hunters are required to sign in and out follows: March 1 through August 31. and report their harvest. 2. Squirrels and rabbits may only be B. Upland Game Hunting. * * * § 32.34 Iowa. hunted during the portion of the Kansas * * * * * * * * * * seasons that fall outside the March 1 through 3. Only non-toxic shot may be used or August 31 closed period. possessed while hunting all permitted birds, Union Slough National Wildlife Refuge * * * * * except wild turkeys. The possession and use * * * * * 13. Section 32.36 Kentucky is of lead shot is still permitted for wild turkey B. Upland Game Hunting. Hunting of amended by revising paragraph D.1. of hunting. upland game is permitted in designated areas Reelfoot National Wildlife Refuge to * * * * * of the refuge subject to the following read as follows: Cypress Creek National Wildlife Refuge condition: Only non-toxic shot may be used or possessed while hunting all permitted § 32.36 Kentucky. * * * * * birds, except wild turkeys. The possession * * * * * 42672 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules Reelfoot National Wildlife Refuge § 32.39 Maryland. C. Big Game Hunting. Big game hunting is * * * * * permitted throughout the district. * * * * * D. Sport Fishing. Sport fishing is permitted D. Sport Fishing. * * * Patuxent Wildlife Research Center throughout the district. 1. Fishing is permitted on the Long Point Unit (north of Upper Blue Basin) from March * * * * * Rice Lake National Wildlife Refuge 15 through November 15 and on the Grassy B. Upland Game Hunting. * * * * * * * * Island Unit (south of the Upper Blue Basin) * * * * * from February 1 through November 15. 6. Shotgun hunters will possess and use, B. Upland Game Hunting. * * * * * * * * while in the field, only non-toxic shot. 1. Only non-toxic shot may be used or possessed while hunting for sharp-tailed 14. Section 32.37 Louisiana is * * * * * amended by revising paragraphs B., grouse, ruffed grouse, or spruce grouse. 17. Section 32.40 Massachusetts is C. Big Game Hunting. * * * D.1., D.4. and removing paragraph D.5. amended by adding new paragraph B.3. * * * * * of Catahoula National Wildlife Refuge to to Oxbow National Wildlife Refuge to read as follows: 4. Hunting of deer on the Rice Lake Unit read as follows: is by firearm and archery; hunting on the § 32.37 Louisiana. § 32.40 Massachusetts. Sandstone Unit is by archery only. * * * * * * * * * * * * * * * Catahoula National Wildlife Refuge Oxbow National Wildlife Refuge Sherburne National Wildlife Refuge * * * * * * * * * * * * * * * B. Upland Game Hunting. Hunting of B. Upland Game Hunting. * * * B. Upland Game Hunting. * * * raccoon, squirrel, rabbit, and feral hogs is 1. Only non-toxic shot may be used or permitted on designated areas of the refuge * * * * * possessed while hunting for ruffed grouse or subject to the following condition: Permits 3. Hunters will possess and use, while in ring-necked pheasant. are required. the field, only non-toxic shot. * * * * * * * * * * * * * * * 18. Section 32.42 Minnesota is D. Sport Fishing. * * * Tamarac National Wildlife Refuge 1. Fishing is permitted from one hour amended by adding new paragraph B.1. before sunrise until one-half hour after to Big Stone National Wildlife Refuge; A. Hunting of Migratory Game Birds. sunset. Only pole and line or rod and reel by adding new paragraph B.3. to Hunting of geese, ducks, coots, woodcock fishing is permitted. Snagging is prohibited. Minnesota Valley National Wildlife and snipe is permitted on designated areas of * * * * * Refuge; by revising paragraphs A., B., C., the refuge subject to the following 4. All other refuge waters, including Duck and D. of Morris Wetland Management conditions: Lake, Muddy Bayou, ditches, all outlet District; by adding new paragraph B.1. * * * * * waters, and all flooded woodlands are open and revising paragraph C.4. of Rice Lake B. Upland Game Hunting. Hunting of to fishing and boating from March 1 through National Wildlife Refuge; by adding ruffed grouse, gray and fox squirrel, October 31. new paragraph B.1. to Sherburne cottontail rabbit, jackrabbit, snowshoe hare, * * * * * National Wildlife Refuge; and by red fox, raccoon, and striped skunk is 15. Section 32.38 Maine is amended revising introductory language of permitted on designated areas of the refuge subject to the following conditions: by revising paragraph B.2. of Rachel paragraph A. and revising paragraph B. Carson National Wildlife Refuge; and by 1. Hunting by tribal members is in of Tamarac National Wildlife Refuge to accordance with White Earth Indian revising paragraphs A. and B. of read as follows: Sunkhaze Meadows National Wildlife Reservation regulations on those parts of the Reservation that are part of the refuge. Refuge to read as follows: § 32.42 Minnesota. 2. Red fox, raccoon, and striped skunk may § 32.38 Maine. * * * * * be hunted only from one-half hour before Big Stone National Wildlife Refuge sunrise until sunset during open seasons for * * * * * other small game species. Dogs may not be * * * * * Rachel Carson National Wildlife Refuge used for fox or raccoon hunting. B. Upland Game Hunting. * * * * * * * * 1. Only non-toxic shot may be used or * * * * * B. Upland Game Hunting. * * * possessed while hunting for partridge or ring- 19. Section 32.45 Montana is * * * * * necked pheasant. amended by revising paragraph B. of 2. Hunters will possess and use, while * * * * * Black Coulee National Wildlife Refuge; in the field, only non-toxic shot. Minnesota Valley National Wildlife by adding paragraph B.3. to Bowdoin Sunkhaze Meadows National Wildlife Refuge National Wildlife Refuge; by revising Refuge paragraph B. of Lake Mason National * * * * * Wildlife Refuge; by revising paragraphs A. Hunting of Migratory Game Birds. B. Upland Game Hunting. * * * A., C., and D. of Lee Metcalf National Hunting of migratory game birds is permitted * * * * * Wildlife Refuge; and by revising on designated areas of the refuge pursuant to paragraph B. of Warhorse National State law. 3. Only non-toxic shot may be used or B. Upland Game Hunting. Hunting of possessed while hunting for ring-necked Wildlife Refuge to read as follows: pheasant. upland game is permitted on designated § 32.45 Montana. areas of the refuge subject to the following * * * * * condition: Shotgun hunters will and possess * * * * * and use, while in the field, only non-toxic Morris Wetland Management District Black Coulee National Wildlife Refuge shot. A. Hunting of Migratory Game Birds. 16. Section 32.39 Maryland is Hunting of migratory game birds is permitted * * * * * amended by adding new paragraph B.6. throughout the district. B. Upland Game Hunting. Hunting of to Patuxent Wildlife Research Center to B. Upland Game Hunting. Upland game upland game is permitted on designated read as follows: hunting is permitted throughout the district. areas of the refuge subject to the following Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42673 condition: Hunters shall possess and use, D. Sport Fishing. Sport fishing is allowed C. Big Game Hunting. Hunting of mule while in the field, only nontoxic shot. on designated areas of the refuge pursuant to deer and white-tailed deer is permitted on * * * * * State law. designated areas of the refuge. * * * * * * * * * * Bowdoin National Wildlife Refuge 21. Section 32.47 Nevada is amended 23. Section 32.51 New York is * * * * * by revising paragraphs A. and B. of Ash amended by adding new paragraph B.4. B. Upland Game Hunting. * * * Meadows National Wildlife Refuge; and to Iroquois National Wildlife Refuge to * * * * * by revising paragraph C. of Desert read as follows: 3. Hunters shall possess and use, while in National Wildlife Refuge to read as § 32.51 New York. the field, only nontoxic shot. follows: * * * * * * * * * * § 32.47 Nevada. Iroquois National Wildlife Refuge Lake Mason National Wildlife Refuge * * * * * * * * * * * * * * * Ash Meadows National Wildlife Refuge B. Upland Game Hunting. * * * B. Upland Game Hunting. Hunting of upland game is permitted on designated A. Hunting of Migratory Game Birds. * * * * * areas of the refuge subject to the following Hunting of geese, ducks, coots, moorhens, 4. Shotgun hunters will possess and use, condition: Hunters shall possess and use, snipe, and dove is permitted on designated while in the field, only non-toxic shot. while in the field, only nontoxic shot. areas of the refuge. * * * * * * * * * * B. Upland Game Hunting. Hunting of 24. Section 32.52 North Carolina is quail, cottontail rabbits and jackrabbits is amended by revising paragraph D.1. of Lee Metcalf National Wildlife Refuge permitted on designated areas of the refuge Pee Dee National Wildlife Refuge; and subject to the following conditions: A. Hunting of Migratory Game Birds. by revising introductory language of 1. Hunting of cottontail rabbits and paragraph B., revising paragraph C.2., Hunting of geese, ducks and coots is jackrabbits is permitted only during the State permitted on designated areas of the refuge quail hunting season. and adding new paragraphs B.7., B.8., subject to the following conditions: 2. Only shotguns are permitted. C.8. and C.9. to Pocosin Lakes National 1. Hunters may not use or possess more Wildlife Refuge to read as follows: than 15 shells per day. * * * * * 2. Shooting is permitted only from or Desert National Wildlife Refuge § 32.52 North Carolina. within 10 feet of designated blinds. * * * * * 3. Maximum of 5 hunters per blind. * * * * * 4. Hunters are required to record hunt C. Big Game Hunting. Hunting of bighorn Pee Dee National Wildlife Refuge information at Hunter Access Points. sheep is permitted on designated areas of the range subject to the following conditions: * * * * * * * * * * 1. Bighorn sheep guides are required to D. Sport Fishing. * * * C. Big Game Hunting. Hunting of white- obtain a Special Use Permit prior to taking 1. Fishing is permitted from March 15 through October 15. tailed deer and mule deer is permitted on clients onto the range. designated areas of the refuge subject to the 2. Natural bighorn sheep mortality (pick-up * * * * * following conditions: heads) found on the range are government 1. Only archery hunting is permitted. property and possession or removal of them Pocosin Lakes National Wildlife Refuge 2. Hunters are required to enter and exit from the range is not permitted. * * * * * and record hunt information at Hunter * * * * * B. Upland Game Hunting. Hunting of Access Points. quail, squirrel, raccoon, opossum, rabbit, and 3. Deer stands left on the refuge must be 22. Section 32.50 New Mexico is fox is permitted on designated areas of the identified with a name and address and be amended by adding new paragraphs refuge subject to the following conditions: accessible to other hunters. A.5. and A.6., and revising paragraphs 4. Deer may not be retrieved from closed * * * * * B. and C. of Bitter Lake National 7. Hunters shall use only shotguns and/or areas without prior consent from refuge staff. Wildlife Refuge to read as follows: D. Sport Fishing. Fishing is permitted on 22 caliber rim-fire rifles for upland game hunts. designated areas of the refuge. All fishing is § 32.50 New Mexico. pursuant to State law. 8. Hunters shall possess and use, while in * * * * * the field, only nontoxic shot on designated * * * * * areas of the refuge. Bitter Lake National Wildlife Refuge Warhorse National Wildlife Refuge C. Big Game Hunting. * * * A. Hunting of Migratory Game Birds. * * * * * * * * * * * * * * * * * * 2. Only shotguns, muzzle-loaders, and bow B. Upland Game Hunting. Hunting of 5. Hunting in Hunt Area B is permitted on and arrow are allowed for big game hunts. upland game birds is permitted on all days within the State authorized season. designated areas of the refuge subject to the * * * * * 6. Hunting in Hunt Area C is permitted following condition: Hunters shall possess 8. Archery hunting on the Pungo Unit is from mid-October through the end of and use, while in the field, only nontoxic permitted during the regular State archery January, on Tuesday, Thursday, and Saturday shot. season and from November 1 through 30. of each week from one-half hour before State bag limits apply. * * * * * sunrise to 1 p.m. Dove hunting is prohibited 9. Shotgun, muzzle loaders, and bow and 20. Section 32.46 Nebraska is in Hunt Area C. arrow are permitted on the Pungo Unit amended by revising paragraph D. of B. Upland Game Hunting. Hunting of subject to the following condition: Permits pheasant, quail, cottontail, and jack rabbits is are required. North Platte National Wildlife Refuge to permitted on designated areas of the refuge read as follows: * * * * * subject to the following conditions: 25. Section 32.53 North Dakota is § 32.46 Nebraska. 1. Hunters shall possess and use, while in the field, only nontoxic shot. amended by revising paragraph B. of * * * * * 2. Hunting in Hunt Area B is permitted on Arrowwood National Wildlife Refuge; by revising paragraphs B., C.1., C.2., and North Platte National Wildlife Refuge all days within the State authorized seasons. 3. The hunting of rabbit and quail is adding paragraphs C.3. through C.7. * * * * * prohibited in Hunt Area C. inclusive to Audubon National Wildlife 42674 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules Refuge; by adding paragraph B.3. to J. Lake Alice National Wildlife Refuge 2. Archery hunting is not allowed during the firearm deer season. Clark Salyer National Wildlife Refuge; * * * * * by revising paragraph B. of Lake Alice B. Upland Game Hunting. Hunting of * * * * * National Wildlife Refuge; by revising upland game and fox is permitted on Tewaukon National Wildlife Refuge paragraph C. of Lake Nettie National designated areas of the refuge subject to the Wildlife Refuge; by revising paragraphs following condition: Hunters shall possess * * * * * B., C., and D. of Long Lake National and use, while in the field, only nontoxic B. Upland Game Hunting. Hunting of ring- Wildlife Refuge; by adding paragraph shot. necked pheasant is permitted on designated B.3. to Lostwood National Wildlife areas of the refuge. * * * * * C. Big Game Hunting. Hunting of white- Refuge; by revising paragraph C. of Lake Nettie National Wildlife Refuge tailed deer is permitted on designated areas Slade National Wildlife Refuge; and by of the refuge. revising paragraphs B. and C. of * * * * * C. Big Game Hunting. Hunting of white- * * * * * Tewaukon National Wildlife Refuge to 26. Section 32.55 Oklahoma is amended by read as follows: tailed deer is permitted on designated areas of the refuge subject to the following revising paragraphs C. and D.4. of Wichita Mountains Wildlife Refuge to read as follows: § 32.53 North Dakota. conditions: ′ * * * * * 1. Deer hunting with rifle and muzzleloader is subject to all State § 32.55 Oklahoma. Arrowwood National Wildlife Refuge regulations and license units. 2. Deer archery hunting is open the day * * * * * * * * * * following the close of the rifle deer hunting B. Upland Game Hunting. Hunting of Wichita Mountains National Wildlife season through the close of the State archery Refuge pheasant, sharp-tailed grouse, partridge, season. rabbit and fox is permitted on designated * * * * * * * * * * areas of the refuge subject to the following C. Big Game Hunting. Hunting of elk and conditions: Long Lake National Wildlife Refuge white-tailed deer is permitted on designated 1. Hunting is permitted from December 1st areas of the refuge subject to the following through the end of the regular seasons. * * * * * condition: Permits and payment of a fee are B. Upland Game Hunting. Hunting of ring- 2. Hunters shall possess and use, while in required. necked pheasant, sharp-tailed grouse and the field, only nontoxic shot. D. Sport Fishing. * * * * * * * * gray partridge is permitted on designated areas of the refuge subject to the following * * * * * Audubon National Wildlife Refuge conditions: 4. Lake Elmer Thomas is open to fishing. 1. Only steel shot may be used. Bass fishing on Lake Elmer Thomas is * * * * * 2. Upland gamebird season is from restricted to catch and release. B. Upland Game Hunting. Hunting of ring- December 1 through the end of the State 27. Section 32.56 Oregon is amended necked pheasants, gray partridge and sharp- season. tailed grouse is permitted on designated areas by revising paragraphs A.1., A.2., A.5., C. Big Game Hunting. Hunting of deer only B., D.1., D.3., and removing paragraphs of the refuge subject to the following is permitted on designated areas of the refuge conditions: subject to the following conditions: A.6., A.7., B.5., and D.5. of Cold Springs 1. Hunting is permitted from December 1 1. Hunters must enter the refuge on foot National Wildlife Refuge; by revising until the close of the State season. only. paragraphs A.2. and B.1. of Malheur 2. Only non-toxic shot is permitted for 2. Archery hunting is not allowed during National Wildlife Refuge; by revising upland game hunting. the firearm deer season. paragraphs A.1., A.2., A.4., A.5., A.6., 3. All islands are closed to hunting. D. Sport Fishing. Fishing is permitted on B., D.1., and D.2., and adding new 4. Vehicle use is restricted to the tour route designated areas of the refuge subject to the paragraph D.3., and removing paragraph road only. following conditions: C. Big Game Hunting. * * * A.7. of McKay Creek National Wildlife 1. bank fishing is restricted to public use Refuge; and by revising paragraphs A.1., 1. Rifle and muzzleloader deer hunting areas on Unit 1, Unit 2, and Long Lake Creek. opens according to State regulations. 2. Boat fishing is restricted to Unit 1. A.4., A.5., revising introductory 2. Refuge and State permits are required for 3. Boats are restricted to 25 HP maximum. language of paragraph B., revising the first one and one-half days of the State 4. Boats are restricted to the period from paragraphs B.1., B.3., B.4., B.5., D.1. rifle season. May 1 through September 30. through D.4. inclusive, and removing 3. Orange clothing is required for deer 5. Ice fishing is restricted to Unit 1. paragraphs A.6. through A.8. inclusive hunters as per State regulations. 6. Ice houses must be removed by March of Umatilla National Wildlife Refuge to 4. Hunting with bow and arrow is 1 annually. permitted only the day following the close of read as follows: * * * * * the State deer firearms season through the § 32.56 Oregon. close of the State archery season. Lostwood National Wildlife Refuge 5. All islands are closed to hunting. * * * * * 6. All refuge roads are closed for use by * * * * * Cold Springs National Wildlife Refuge rifle deer hunters except for retrieval of deer. B. Upland Game Hunting. * * * 7. Muzzleloader and archery deer hunters A. Hunting of Migratory Game Birds. * * * may use the auto tour route for access during * * * * * 1. The refuge is open from 5 a.m. to one the hunt and all roads for retrieval of deer. 3. Hunters shall possess and use, while in and one-half hours after sunset. Decoys and the field, only nontoxic shot. * * * * * other personal property may not be left on * * * * * the refuge overnight. J. Clark Salyer National Wildlife Refuge 2. Hunting is permitted only on Tuesdays, Slade National Wildlife Refuge Thursdays, Saturdays, Thanksgiving Day, * * * * * Christmas Day and New Year’s Day. B. Upland Game Hunting. * * * * * * * * C. Big Game Hunting. Deer hunting is * * * * * * * * * * permitted on designated areas of the refuge 5. Hunters may not possess more than 25 3. Hunters shall possess and use, while in subject to the following conditions: shells while in the field. the field, only nontoxic shot. 1. Hunters may enter the refuge on foot B. Upland Game Hunting. Hunting of * * * * * only. pheasant and quail is permitted on Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42675 designated areas of the refuge subject to the 2. Fishing is permitted from March 1 Santee National Wildlife Refuge following conditions: through September 30. 1. The refuge is open from 5 a.m. to one 3. Fishing is permitted only with hook and A. Hunting of Migratory Game Birds. and one-half hours after sunset. line. Hunting of mourning doves, ducks, and coots is permitted on designated areas of the refuge 2. Hunting is permitted only on Tuesdays, * * * * * Thursdays, Saturdays, Thanksgiving Day, subject to the following condition: Permits Christmas Day and New Year’s Day. Umatilla National Wildlife Refuge are required. 3. Hunters shall possess and use, while in * * * * * the field, only non-toxic shot. A. Hunting of Migratory Game Birds. * * * 4. Hunters may not possess more than 25 1. The refuge is open from 5 a.m. to one 30. Section 32.61 South Dakota is shells while in the field. and one-half hours after sunset except for the amended by revising paragraph B. of Hunter Check Station parking lot at the Pocasse National Wildlife Refuge to read * * * * * McCormack Unit which is open each as follows: D. Sport Fishing. * * * morning two hours prior to State shooting 1. Use of non-motorized boats and boats hours for waterfowl. Decoys, boats and other § 32.61 South Dakota. with electric motors is permitted from March personal property must be removed from the * * * * * 1 through September 30. refuge following each day’s hunt. * * * * * * * * * * Pocasse National Wildlife Refuge 3. Fishing is permitted only with hook and 4. Hunters may not possess more than 25 line. * * * * * shells while in the field. B. Upland Game Hunting. Hunting of * * * * * 5. Permits are required for hunting on the pheasant is permitted on designated areas of McCormack Unit. Malheur National Wildlife Refuge the refuge subject to the following condition: B. Upland Game Hunting. Hunting of Hunters shall possess and use, while in the A. Hunting of Migratory Game Birds. * * * pheasant and quail is permitted on field, only nontoxic shot. * * * * * designated areas of the refuge subject to the following conditions: * * * * * 2. Snipe and dove hunters shall possess 1. Hunting of upland game birds is not and use, while in the field, only non-toxic 31. Section 32.62 Tennessee is allowed until noon of each hunt day. shot. amended by revising paragraphs A. and B. Upland Game Hunting. * * * * * * * * D.1. of Cross Creeks National Wildlife 1. Hunting of pheasant, quail, partridge, 3. Hunters shall possess and use, while in Refuge; and by revising introductory and rabbit is permitted from the third the field, only non-toxic shot. language of paragraph D. and revising Saturday in November to the end of the State 4. Hunters may not possess more than 25 paragraph D.1. of Lake Isom National pheasant season in designated zones of the shells while in the field. Wildlife Refuge to read as follows: Blitzen Valley east of Highway 205. Hunting 5. Permits are required for hunting on the is also permitted on Malheur Lake during the McCormack Unit. § 32.62 Tennessee. waterfowl hunting season. * * * * * * * * * * * * * * * D. Sport Fishing. * * * 1. The refuge is open from 5 a.m. to one Cross Creeks National Wildlife Refuge McKay Creek National Wildlife Refuge and one-half hours after sunset. A. Hunting of Migratory Game Birds. A. Hunting of Migratory Game Birds. * * * 2. Fishing is permitted on refuge Hunting of resident Canada geese during the impoundments and ponds from February 1 1. The refuge is open from 5 a.m. to one Special State September season is permitted through September 30. Other refuge waters and one-half hours after sunset. Decoys and on designated areas of the refuge subject to (Columbia River and its backwaters) are open other personal property may not be left on the following condition: Permits are required. the refuge overnight. in accordance with State regulation. 3. Only non-motorized boats and boats * * * * * 2. Hunting is permitted only on Tuesdays, D. Sport Fishing. * * * Saturdays, Thanksgiving Day, Christmas Day with electric motors are permitted on refuge and New Year’s Day. impoundments and ponds. * * * * * 4. Fishing is permitted only with hook and 1. Fishing is permitted on refuge pools and * * * * * line. reservoirs from March 15 through October 31 4. Hunters may not possess more than 25 from sunrise to sunset. shells while in the field. * * * * * 5. Permits are required for the opening 28. Section 32.57 Pennsylvania is * * * * * weekend of the season when it coincides amended by adding new paragraph B.4. Lake Isom National Wildlife Refuge with the season opening for upland game to Erie National Wildlife Refuge to read birds. as follows: * * * * * 6. The use of boats is prohibited. D. Sport Fishing. Fishing is permitted on B. Upland Game Hunting. Hunting of § 32.57 Pennsylvania. designated areas of the refuge subject to the pheasant and quail is permitted on following conditions: designated areas of the refuge subject to the * * * * * 1. Fishing is permitted from March 15 following conditions: Erie National Wildlife Refuge through October 15 only from sunrise to 1. The refuge is open from 5 a.m. to one sunset. * * * * * and one-half hours after sunset. * * * * * 2. Hunting is permitted only on Tuesdays, B. Upland Game Hunting. * * * Thursdays, Saturdays, Thanksgiving Day, * * * * * 32. Section 32.64 Utah is amended by Christmas Day and New Year’s Day. 4. Shotgun hunters will possess and use, revising paragraph B. of Ouray National 3. Hunters shall possess and use, while in while in the field, only non-toxic shot. Wildlife Refuge to read as follows: the field, only non-toxic shot. * * * * * 4. Hunters may not possess more than 25 § 32.64 Utah. shells while in the field. 29. Section 32.60 South Carolina is * * * * * 5. Permits are required for the opening amended by revising paragraph A. of weekend of the season. Santee National Wildlife Refuge to read Ouray National Wildlife Refuge * * * * * as follows: * * * * * D. Sport Fishing. * * * B. Upland Game Hunting. Hunting of 1. The refuge is open from 5 a.m. to one § 32.60 South Carolina. pheasant is permitted on designated areas of and one-half hours after sunset. * * * * * the refuge subject to the following condition: 42676 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules Hunters shall possess and use, while in the 7. The furthest downstream island B. Upland Game Hunting. Hunting of field, only nontoxic shot. (Columbia River mile 341–343) in the pheasant and quail is permitted on * * * * * Hanford Islands Division is closed to designated areas of the refuge subject to the hunting. following conditions: 33. Section 32.65 Vermont is B. Upland Game Hunting. Hunting of 1. Hunting of upland game birds is not amended by revising paragraphs B.1., pheasant and quail is permitted on allowed until noon of each hunt day. B.2., and adding new paragraphs B.3., designated areas of the refuge subject to the * * * * * B.4., C.3. and C.4. to Missisquoi following conditions: 3. Hunters may not possess more than 25 National Wildlife Refuge to read as 1. Hunting of upland game birds is not shells while in the field. allowed until noon of each hunt day. follows: * * * * * * * * * * D. Sport Fishing. Fishing is permitted on § 32.65 Vermont. 4. Hunters may not possess more than 25 designated areas of the refuge subject to the shells while in the field. * * * * * following conditions: 5. On the first Saturday in December, only 1. The refuge is open from 5 a.m. to one Missisquoi National Wildlife Refuge youth aged 10–17 and an accompanying and one-half hours after sunset. adult aged 18 or over may hunt. * * * * * 2. Fishing is permitted on refuge 6. The furthest downstream island B. Upland Game Hunting. * * * impoundments and ponds from February 1 (Columbia River mile 341–343) in the through September 30. Other refuge waters 1. All hunters must register at Refuge Hanford Islands Division is closed to Headquarters prior to hunting on the refuge. hunting. (Columbia River and its backwaters) are open 2. The use of rifles is not permitted on that in accordance with State regulations. portion of the refuge lying east of the * * * * * 3. Fishing is permitted only with hook and Missisquoi River. D. Sport Fishing. Fishing is permitted on line. 3. Hunting is not permitted from January designated areas of the McNary Division subject to the following conditions: * * * * * 1 through August 31. 35. Section 32.68 West Virginia is amended 4. Shotgun hunters will possess and use, 1. The refuge is open from 5 a.m. to one and one-half hours after sunset. by adding new paragraph B.4. to Ohio River while in the field, only non-toxic shot. Islands National Wildlife Refuge to read as C. Big Game Hunting. * * * 2. Fishing is permitted from February 1 through September 30. follows: * * * * * 3. The use of boats and other floatation § 32.68 West Virginia. 3. All hunters must register at Refuge devices is not permitted. Headquarters prior to hunting on the refuge. 4. Fishing is permitted only with hook and * * * * * 4. Only portable tree stands are allowed. line. Unattended tree stands are prohibited. Ohio River Islands National Wildlife * * * * * Refuge * * * * * Toppenish National Wildlife Refuge 34. Section 32.67 Washington is * * * * * amended by revising paragraphs A.2 A. Hunting of Migratory Game Birds. * * * B. Upland Game Hunting. * * * through A.7. inclusive, removing 1. The refuge is open from 5 a.m. to one * * * * * paragraph A.8., revising introductory and one-half hours after sunset. Decoys and 4. Hunters will possess and use, while in language of paragraph B., revising other personal property may not be left on the field, only non-toxic shot. the refuge overnight. paragraphs B.1. and D., and adding * * * * * 2. Hunters may not possess more than 25 36. Section 32.70 Wyoming is paragraphs B.4., B.5, and B.6. to McNary shells while in the field. National Wildlife Refuge; by revising 3. Hunters in the marked hunt site areas amended by revising paragraph B. of paragraphs A.1., A.2., A.3., B., and must hunt within fifty (50) feet of designated Pathfinder National Wildlife Refuge; adding new paragraph A.4. to blind sites except when shooting to retrieve and by revising paragraph B. of Toppenish National Wildlife Refuge; crippled birds. Seeskadee National Wildlife Refuge to and by revising paragraphs A.3., A.4., 4. On the first Saturday in December, only read as follows: youth aged 10–17 and an accompanying A.5., introductory language of paragraph adult aged 18 or over may hunt. § 32.70 Wyoming. B., B.1., B.3., and D., and removing B. Upland Game Hunting. Hunting of * * * * * paragraph A.6. of Umatilla National pheasant and quail is permitted on Wildlife Refuge to read as follows: designated areas of the refuge subject to the Pathfinder National Wildlife Refuge following conditions: * * * * * § 32.67 Washington. 1. Hunting of upland game birds is not B. Upland Game Hunting. Hunting of sage allowed until noon of each hunt day. * * * * * grouse and cottontail rabbit is permitted on 2. Hunters shall possess and use, while in designated areas of the refuge subject to the McNary National Wildlife Refuge the field, only non-toxic shot. following condition: Hunters shall possess 3. Hunters may not possess more than 25 A. Hunting of Migratory Game Birds. * * * and use, while in the field, only nontoxic shells while in the field. shot. * * * * * 4. On the first Saturday in December, only 2. The refuge is open from 5 a.m. to one youth aged 10–17 and an accompanying * * * * * and one-half hours after sunset. Decoys and adult aged 18 or over may hunt. other personal property may not be left on Seedskadee National Wildlife Refuge * * * * * the refuge overnight. * * * * * 3. Hunting is permitted only Wednesdays, Umatilla National Wildlife Refuge B. Upland Game Hunting. Hunting of sage Saturdays, Sundays, Thanksgiving Day, grouse and cottontail rabbit is permitted on A. Hunting of Migratory Game Birds. * ** Christmas Day, and New Year’s Day. designated areas of the refuge subject to the 4. Hunters in the marked hunt site area of * * * * * following condition: Hunters shall possess the McNary Division must hunt within fifty 3. The refuge is open from 5 a.m. to one and use, while in the field, only nontoxic (50) feet of designated blind sites except and one-half hours after sunset. Decoys, shot. when shooting to retrieve crippled birds. boats, and other personal property may not 5. Hunters may not possess more than 25 be left on the refuge overnight. * * * * * shells while in the field. 4. Hunters may not possess more than 25 37. Section 32.69 Wisconsin is 6. On the first Saturday in December, only shells while in the field. amended by adding new paragraph B.1. youth aged 10–17 and an accompanying 5. Digging or hunting from pit blinds is to Horicon National Wildlife Refuge; adult aged 18 or over may hunt. prohibited. and by adding new paragraph B.4. to Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42677 Necedah National Wildlife Refuge to read as follows: § 32.69 Wisconsin. * * * * * Horicon National Wildlife Refuge * * * * * B. Upland Game Hunting. * * * 1. Only non-toxic shot may be used or possessed while hunting for ring-necked pheasant or gray partridge. * * * * * Necedah National Wildlife Refuge * * * * * B. Upland Game Hunting. * * * * * * * * 4. Only non-toxic shot may be used or possessed while hunting for ruffed grouse. * * * * * Dated: July 31, 1995. George T. Frampton, Jr., Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 95–20037 Filed 8–15–95; 8:45 am] BILLING CODE 4310±55±P federal register August 16,1995 Wednesday Member Institutions;FinalRules Assessment RateScheduleforSAIF- Assessments; RetentionofExistent 12 CFRPart327 Corporation Insurance Federal Deposit Part IV 42679 42680 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations FEDERAL DEPOSIT INSURANCE Deposit Insurance Corporation, DRR is reached, the Board is adopting CORPORATION Washington, DC 20429. an assessment rate schedule for BIF members of 4 to 31 basis points that will SUPPLEMENTARY INFORMATION: 12 CFR Part 327 become effective the first day of the I. Background month after the month in which the RIN 3064±AB58 On February 16, 1995, the Board DRR is achieved. Assessments collected Assessments published for public comment a at the previous rate schedule that proposal to lower the assessment rate exceed the amounts due under the new AGENCY: Federal Deposit Insurance schedule for BIF members to 4 to 31 schedule after the DRR has been Corporation. basis points from the current schedule achieved will be refunded in one or ACTION: Final rule. of 23 to 31 basis points. The Board more payments, with interest, from the further proposed to amend the effective date of the new schedule (or, SUMMARY: The Board of Directors assessment rate matrix to widen the in the case of June 30 overpayments, (Board) of the Federal Deposit Insurance existing rate spread from 8 basis points from June 30 or, if later, the actual Corporation (FDIC) is amending the to 27 basis points. 60 FR 9270 (Feb. 16, payment date). As proposed, the Board FDIC’s regulation on assessments to 1995). The Board is now adopting the is further adopting a process to adjust establish a new assessment rate proposed amendments with minor rates semiannually without a new schedule of 4 to 31 basis points for modifications. notice-and-comment rulemaking institutions whose deposits are subject Under the assessment schedule proceeding, using an adjustment factor to assessment by the Bank Insurance currently in effect, BIF members have of 5 basis points. Fund (BIF). In addition, the Board is been assessed rates for FDIC insurance At the request of Board Member amending the assessment schedule to ranging from 23 basis points for Jonathan Fiechter and interested outside widen the existing assessment rate institutions with the best assessment parties, the Board held a hearing at FDIC spread from 8 basis points to 27 basis risk classification to 31 basis points for headquarters in Washington, D.C. on points. The Board is further amending the riskiest institutions. This assessment March 17, 1995, to provide the the assessments regulation to establish a schedule was based on the requirements opportunity for interested parties to procedure for adjusting the rate of section 7(b)(2)(E) of the Federal express orally their views on the schedule semiannually as necessary to Deposit Insurance Act (FDI Act), 12 proposals to decrease assessment rates maintain the designated reserve ratio U.S.C. 1817(b)(2)(E). That provision was for members of the BIF while retaining (DRR) at 1.25 percent. enacted as part of section 302 of the the existing 23 to 31 basis point The Board is adopting the new Federal Deposit Insurance Corporation assessment schedule for members of the assessment schedule to satisfy the Improvement Act of 1991 (FDICIA) Savings Association Insurance Fund requirements of section 7(b) of the (Pub. L. 102–242, 105 Stat. 2236, 2345) (SAIF), on the competitive impact of the Federal Deposit Insurance Act that, once which completely revised the disparity between BIF and SAIF rates, the reserve ratio of the BIF reaches the assessment provisions of the FDI Act by and on possible solutions for DRR of 1.25 percent of total estimated requiring the FDIC to: (1) Establish a recapitalizing the SAIF and paying the interest on Financing Corporation insured deposits, rates be set to system of risk-based assessments; (2) bonds. Every person or organization that maintain the DRR. The new schedule establish assessment rates sufficient to requested an opportunity to testify was will apply to the semiannual period in provide revenue at least equivalent to which the DRR has been achieved accommodated. that generated by an annual 23 basis A total of twenty witnesses were (which is expected to occur in the 1 point rate until the BIF reserve ratio heard by the full FDIC Board during the second quarter of 1995) and to 2 achieves the DRR of 1.25 percent of day-long hearing. They included the semiannual periods thereafter, subject to total estimated insured deposits; (3) modification semiannually by the FDIC. American Bankers Association (ABA), when the reserve ratio remains below the Independent Bankers Association of Specifically, the new assessment the DRR of 1.25 percent, set rates to schedule, which will reduce BIF America (IBAA), America’s Community achieve that ratio within one year or Bankers, the Savings Association assessment rates for all but the riskiest establish a recapitalization schedule to institutions, will become effective on Insurance Fund Industry Advisory do so within 15 years; and (4) once the Committee, the National Association of the first day of the month after the DRR is achieved, set rates to maintain month in which the DRR is achieved. Home Builders, representatives of the reserve ratio at the DRR. several bank and thrift state Assessments collected at the previous Due to the health of the banking assessment schedule that exceed the associations, individual bank and thrift industry, current projections indicate executives, a private sector attorney, amount due under the new schedule that the BIF may have recapitalized and an independent consultant. The will be refunded, with interest, from the sometime during the second quarter of written testimony of each witness as effective date of the new schedule. 1995, although recapitalization has not well as the hearing record are included EFFECTIVE DATE: September 15, 1995. yet been verified. The actual month of in the FDIC’s public comment file on FOR FURTHER INFORMATION CONTACT: recapitalization cannot be confirmed the two proposals. Frederick S. Carns, Chief, Financial until data from the June 30, 1995, In total, the FDIC received over 3,200 Markets Section, Division of Research Reports of Condition and Income (call comments on the BIF proposal (together and Statistics, (202) 898–3930; Christine reports) is processed, which the FDIC with the comments received on the Blair, Financial Economist, Division of expects to occur early in September. Board’s proposal to retain the existing Research and Statistics, (202) 898–3936; Accordingly, to implement the statutory assessment rate schedule for members of Connie Brindle, Chief, Assessment provisions which will apply once the the Savings Association Insurance Operations Section, Division of Finance, Fund), including the testimony from the (703) 516–5553; Claude A. Rollin, 1 The reserve ratio is the dollar amount of the BIF public hearing. After taking account of fund balance divided by the estimated insured Senior Counsel, Legal Division (202) deposits of BIF members. duplicates, 2,891 comments were 898–3985; or Martha Coulter, Counsel, 2 The DRR of 1.25 percent is equivalent to $1.25 tabulated representing 2,310 individual Legal Division (202) 898–7348, Federal for each $100 of estimated insured deposits. BIF member respondents, 454 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42681 individual SAIF member respondents, longer apply. Accordingly, the Board at the DRR taking into consideration the 61 trade associations and 66 other must now establish an assessment following factors: (1) Expected operating individuals/organizations. schedule that satisfies the directive of expenses; (2) case resolution Following is a discussion of: (1) The section 7(b)(1) to establish a risk-based expenditures and income; (3) the effect statutory framework for setting assessment system, based on the of assessments on members’ earnings assessment rates, (2) the new assessment statutory factors which must be and capital; and (4) any other factors the rate spread, (3) the new assessment rate considered in that determination; and Board may deem appropriate.4 Section schedule, (4) the method for applying the directive of section 7(b)(2) to 7(b)(2)(A)(iii) limits the Board’s the schedule in the semiannual period maintain the BIF reserve ratio at 1.25 discretion to set assessment rates by during which the DRR is achieved, and percent, considering the statutory imposing a minimum semiannual (5) the process for limited adjustment of factors which must inform that decision. assessment of $1,000 per BIF member.5 the new schedule in future semiannual As a practical matter, there is significant As stated in the proposal, the Board periods. A summary of the comments overlap between the factors to be views the DRR as a target around which received is included with the specific considered under section 7(b)(1) and the actual reserve ratio would fluctuate, issue(s) addressed by the parties those to be considered under section rather than as a rigid ceiling above submitting comments. 7(b)(2). For example, in determining which the reserve ratio could not rise even slightly.6 The Board based this II. Statutory Framework for Setting risk-based assessments, the Board must interpretation on (1) the impossibility of Assessment Rates consider the probability and likely amount of losses to the fund. When controlling the economic factors which A. Introduction setting assessments to maintain the affect the size of the BIF; (2) the Section 7(b) of the FDI Act governs reserve ratio at the DRR, the Board must legislative history of section 7(b); and the Board’s authority for setting consider the same underlying data but (3) the other statutory directives of assessment rates for members of the BIF. denominated as ‘‘case resolution section 7(b) that the FDIC establish a 12 U.S.C. 1817(b). Section 7(b)(1) (A) expenditures’’. Thus, these system of risk-based assessments and and (C) require that the FDIC maintain determinations are interdependent and impose a minimum semiannual a risk-based assessment system, setting any decision concerning an appropriate assessment of $1,000 (either of which assessments based on (1) the probable assessment schedule will consider and may cause the reserve ratio to exceed risk to the fund posed by each insured balance all of the statutory factors that 1.25 percent in the current economic depository institution taking into underlie these two directives. circumstances). The Board further stated account different categories and In the current favorable economic that in the event the reserve ratio concentrations of assets and liabilities environment even with assessment rates exceeds the DRR due to economic and any other relevant factors; (2) the as low as prudently possible consistent factors beyond its control (such as the likely amount of any such loss; and (3) with the Board’s fiduciary level of investment income) or as a the revenue needs of the fund. Section responsibilities to the insurance fund, result of effectuating other statutory 7(b)(2)(A) of the FDI Act requires the the FDIC recognizes that the reserve directives (such as the requirement to Board to set semiannual assessments to ratio may grow beyond 1.25 percent as have a risk-based assessment system), maintain the BIF reserve ratio at the a result of the impact on the fund the Board considers that it will have DRR once the BIF is recapitalized,3 balance of revenues generated from risk- complied with the statute because the taking into consideration the fund’s: (1) based assessments, the $1,000 Board will have set rates to maintain the Expected operating expenses; (2) case semiannual minimum assessment, and reserve ratio at 1.25 percent in resolution expenditures and income; (3) investment income. Under these the effect of assessments on members’ circumstances, any new assessment 4 The directive to ‘‘set rates to maintain the earnings and capital; and (4) any other schedule adopted by the Board must be reserve ratio at the designated reserve ratio’’ was the result of balancing the directive to enacted as part of the amendments to section 7 factors that the Board may deem made by the FDIC Assessment Rate Act of 1990 appropriate. Section 7(b)(2)(A)(iii) maintain a risk-based assessment system (Assessment Rate Act). Pub. L. 101–508, 104 Stat. further directs the Board to impose on (and the statutory factors attendant 1388, 1388–14. The Assessment Rate Act is Subtitle each institution a minimum assessment thereto) and the directive to set rates to A of Title II of the Omnibus Budget Reconciliation maintain the DRR (and the statutory Act of 1990. See, discussion of legislative history of not less than $1,000 semiannually. in the proposed regulation. 60 FR 9270 at 9272 When the reserve ratio remains below factors attendant thereto). As discussed (Feb. 16, 1995). the DRR, the statute explicitly directs more fully below, the statute and the 5 As enacted in FDICIA, section 7(b)(2)(A)(iii) of the Board to set rates that will at a legislative history provide little the FDI Act provides that the semiannual minimum generate revenue equivalent guidance as to how to weigh the wide assessment for each member of a deposit insurance range of statutory factors that go into fund shall be not less than $1,000. Accordingly, BIF to the amount generated by an average members must pay the greater of their risk-based assessment rate of 23 basis points. FDI this decision. The following sections rate or $2000 each year. Act, section 7(b)(2)(E). address the Board’s interpretation of the 6 Treating the DRR as a target would necessarily For the first time since the current interplay of the directives of section 7(b) include the concept of fluctuations above and and include a discussion of comments below the target. If the reserve ratio falls below provisions of section 7(b) were enacted 1.25% in a semiannual period, the Board could in 1991, the determination that the BIF received on the related issues in the adjust the assessment schedule in the next has achieved the DRR is imminent and, proposal. semiannual period to restore the ratio. Section therefore, the minimum 23 basis point B. Maintain ‘‘At’’ the DRR 7(b)(3)(A) of the FDI Act contemplates precisely average assessment requirement will no that. That section provides that, after the DRR is The Board is adopting the proposed achieved, if the reserve ratio falls below the DRR, the Board is required to set semiannual assessments 3 The DRR of the BIF currently is 1.25 percent of interpretation of the statutory sufficient to increase the reserve ratio to the DRR estimated insured deposits. FDI Act, section requirement to maintain the reserve within one year or in accordance with a 7(b)(2)(A)(iv). The Board may increase the DRR to ratio at the DRR in which the Board recapitalization schedule promulgated to restore the such higher percentage as the Board determines to views the DRR as a target. Pursuant to reserve ratio to the DRR within 15 years. be justified for a particular year by circumstances Conversely, when the reserve ratio rises above the raising a significant risk of substantial future losses section 7(b)(2)(A)(i) of the FDI Act, the DRR for any period, the Board could adjust the to the fund. However, the Board is not authorized Board must set semiannual assessments assessment schedule downward to reflect the to decrease the DRR below 1.25 percent. Id. to maintain the reserve ratio of the BIF increase. 42682 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations accordance with statutory requirements that the Board might make to the Moreover, Congress must have for a risk-based assessment system and assessment schedule. understood that the reserve ratio cannot a minimum semiannual assessment. The For example, the primary argument of be maintained precisely at 1.25 percent Board is adopting this interpretation the ABA is that the Board cannot because such an interpretation would with added discussion to clarify the intentionally set assessments to generate require that amounts in excess of 1.25 need to balance the directives of section assessment income which its own percent be returned to the industry. In 7(b) and the statutory factors which predictions show will increase the the current economic environment, the must be considered in that balancing reserve ratio above the DRR. According fund will likely grow beyond the DRR decision. to the ABA, to do so would render as a result of investment income and meaningless the requirement that the revenue generated by the risk-based 1. Comments Board must make a determination that assessment system. Thus, an The appropriate interpretation of the circumstances raising a significant risk interpretation which requires the FDIC directive to ‘‘maintain the reserve ratio of substantial future losses to the fund to maintain the reserve ratio precisely at at the designated reserve ratio’’ was one justify an increase in the DRR. 1.25 percent would necessarily require of the issues that elicited the greatest Similarly, the IBAA stated that in light a mechanism for providing assessment response from commenters. Of the 864 of its own projections, FDIC appears to credits (known as rebates) to BIF respondents that addressed this issue, be managing the fund at a level higher members for amounts in excess of 1.25 851 (813 BIF members, 30 trade than 1.25 percent. percent. However, as discussed more associations, 4 SAIF members and 4 2. The Board’s Rationale for Interpreting fully in Section II.D below, in FDICIA other individuals or organizations) the DRR as a Target Congress deleted the FDIC’s authority in believed that the DRR of 1.25 percent section 7(d), 12 U.S.C. 1817(d), to As described more fully below, the should be interpreted as a precise provide rebates. In addition, Congress Board continues to believe that viewing number or a ceiling and that all can be presumed to have been aware the DRR as a target to be maintained assessment revenue (and in some cases that at no time in its 62-year history has over time is the correct position investment income) in excess of 1.25 the FDIC rebated investment income to because: (1) It reflects the inconstancy of the industry, including the period from percent should be returned to BIF economic factors which make it 1989–1990 which was the only time that members. Thirteen respondents (8 BIF impossible for the FDIC to maintain the the FDIC had the authority to rebate members, 2 trade associations, 2 SAIF reserve ratio precisely at 1.25 percent; investment income. Indeed, even if the members and 1 other individual) agreed (2) it better comports with Congress’ FDIC’s last-existing rebate authority had with the Board that the DRR is view of the DRR as a target as indicated not been removed on January 1, 1994, necessarily a target about which the by the legislative history and the reserve ratio will fluctuate. As noted practical impact of Congress’ investment income could not be rebated above, the concept of the DRR as a elimination of the FDIC’s rebate and could cause the reserve ratio to rise precise number above which the BIF authority in section 7(d); and (3) it gives even with minimal assessments. (b) Legislative History. The second may not rise necessarily requires a effect to other provisions of section 7(b), element upon which the Board based its mechanism to return excess most importantly, the requirement for a assessments. See Section II.D below for risk-based assessment system. A interpretation of the ‘‘maintain at’’ a discussion of comments addressing discussion of each of these elements of requirement is the legislative history of the FDIC’s authority to provide rebates. the Board’s rationale follows. section 7(b). Section 208 of the By contrast, the Center for Study of (a) Management of Reserve is Financial Institutions Reform, Recovery, Responsive Law/Essential Information Imprecise. The first element upon and Enforcement Act of 1989 (FIRREA) interpreted the statutory DRR as a floor which the Board based its interpretation amended section 7(b) of the FDI Act to and urged the FDIC to establish a higher of the ‘‘maintain at’’ requirement is the establish a DRR and set the level at 1.25 range for the DRR with a target average FDIC’s inability to control economic percent. Pub. L. 101–73, 103 Stat. 183, of 1.63 percent using 1.25 percent as the factors which affect the size of the 206. Prior to FIRREA, beginning in floor and 2.0 percent as the ceiling. reserve ratio, thereby making it 1980, the FDI Act required or authorized Numerous commenters stated that the impossible to manage the BIF precisely the Board to adjust the amount of Board may not intentionally set at 1.25 percent. Changes in the reserve assessment income transferred to the assessments at a level which, based on ratio are a function of the amount of insurance fund, and thereby to increase its own projections, will increase the insured deposits, investment earnings, or decrease the rebate amount, based on reserve ratio above the DRR. assessment revenue (which, in turn, is the actual reserve ratio of the fund Accordingly, many have asserted that by a function of the risk profile of the within a range from 1.10 percent to 1.40 setting the proposed assessment industry and revenue received from the percent, with 1.25 percent as the target.7 schedule at 4 to 31 basis points, the statutory minimum assessment), and FIRREA also prescribed minimum Board will have, in effect, knowingly set revenue from corporate-owned and annual assessment rates which could be the rates to increase the DRR above 1.25 other assets, none of which is in the increased from the scheduled levels, ‘‘if percent without making the required complete control of the FDIC. In necessary to restore the fund’s ratio of statutory finding to increase the DRR. addition, operating expenses and reserves to insured deposits to its target This assertion was based on a insurance losses, including the level within a reasonable period of misreading of a chart publicly provision for future losses, will vary. time.’’ [Emphasis added.] H.R. Conf. distributed at the Board meeting on the Even with regard to the elapsed time Rep. No. 222, 101st Cong., 1st Sess. 396 proposals indicating that under the between the setting of rates for an (1989). proposed rate schedule, the reserve ratio upcoming semiannual assessment The legislative history of would rise to 1.30 percent in 1995 and period and the end of that period, there Congressional hearings in the year prior 1.33 percent in 1996 and remain above is a potential for variations in all of 7 Consumer Checking Account Equity Act of the DRR until the year 2001. The these factors, thus making it impossible 1980, enacted as Title III of the Depository projections in the chart did not reflect to manage the reserve ratio precisely at Institutions Deregulation and Monetary Control Act the possibility of semiannual changes the DRR. of 1980, Pub. L. 96–221, 94 Stat. 132, 148. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42683 to enacting FIRREA is replete with insured and uninsured, contingent and assessment system must incorporate a references to the 1.25 percent reserve noncontingent; range of rates that provides an incentive ratio as a target. Thus, when the DRR (III) Any other factors the Corporation for banks to control risk-taking while at was established, Congress viewed the determines are relevant to assessing the same time taking into account the DRR as a target level. such probability; long-term costs of the risks borne by the The next year, in 1990, the Senate (ii) The likely amount of any such deposit insurer. The Board is well aware Banking Committee clearly considered loss; and that the assessment income generated by the DRR a target as is demonstrated in (iii) The revenue needs of the deposit an effective risk-based assessment the section-by-section analysis of S. insurance fund. system and the minimum semiannual 3045, the language of which was almost Within the scope of these broad assessment may, in the current identical to the Administration bill, factors, the FDIC was granted complete economic situation, cause the reserve S.3093, which was ultimately enacted as discretion to design a risk-based ratio to rise above the target DRR of 1.25 8 the Assessment Rate Act of 1990. That assessment system. See, i.e., S. Rep. percent. Even so, as discussed more analysis repeatedly referred to 1.25 No. 167, 102d Cong., 1st Sess., 57 fully below, this does not eliminate the percent as the ‘‘target level’’. Finally, (1991). necessity for the Board to balance the FDICIA section 104, Recapitalizing the It is clear from the legislative history directives of section 7(b) to have an Bank Insurance Fund, amended the of FDICIA that Congress viewed the flat- effective risk-based assessment system assessment rate provisions of section rate assessment system as providing while at the same time setting rates that 7(b)(1)(C) (in effect December 19, 1991, perverse incentives for institutions to will maintain the reserve ratio at the undertake risky activities funded by through December 31, 1993) as follows: target DRR by giving full consideration insured deposits because they were not to the enumerated statutory factors that If the reserve ratio of the Bank Insurance being charged for that risk, in effect Fund equals or exceeds the fund’s designated are the determinants of the assessment penalizing well-managed institutions. S. schedule. reserve ratio under subparagraph (B), the Rep. No. 167, 102d Cong., 1st Sess. 56 Board of Directors shall set semiannual C. Balancing assessment rates for members of that fund as (1991). By contrast, risk-based appropriate to maintain the reserve ratio at assessments were intended to reduce As discussed below, the main purpose the designated reserve ratio. [Emphasis risk to the BIF by encouraging banks to of S. 543 (the bill that contained the added.] confine themselves to safe and sound language of current section 7(b)) was to This language is particularly activities and decreasing the assure that the BIF would be compelling because its genesis was in S. subsidization of risky banks by more recapitalized so that taxpayer funds 543, the same bill which removed the prudent institutions. Id. would not be at risk. Accordingly, while FDIC’s rebate authority and which was The ABA has asserted that a risk- the statute is specific with respect to the the source of FDICIA’s amendments to based assessment system is unnecessary actions the Board must take to set rates section 7 of the FDI Act. Thus Congress when the BIF does not need assessment when the reserve ratio is below the DRR, appears to have recognized that the income and that the requirement for neither the statute nor the legislative reserve ratio would not remain precisely such a system applies only to history provides guidance with respect determining the spread between the at a target DRR and could exceed that to how the FDIC is to balance the highest and lowest rates in the level. various requirements of section 7(b) (c) Other Statutory Directives of assessment schedule. Once the spread is once the DRR is achieved. Nor does the Section 7(b). The third element upon determined, then the appropriate legislative history provide guidance as which the Board has based its schedule is based solely on the revenue to the appropriate timeframe for interpretation of the ‘‘maintain at’’ needs of the fund. The Board disagrees forecasting losses so that the reserve directive consists of the other mandates with this interpretation because it gives ratio can be maintained at 1.25 percent, of section 7(b): to have an effective risk- effect only to the statutory requirement thereby ultimately protecting the that the revenue needs of the fund be based assessment system and to impose taxpayers. taken into account when establishing or a minimum semiannual assessment of It is clear from the legislative history revising risk-based assessment rates. $1,000. that in enacting FDICIA, Congress was The Board believes that to be Such an interpretation would ignore the focused almost entirely on a future effective, the risk-based assessment compelling legislative history indicating where the reserve ratio would be below system must incorporate a range of rates Congress’ firm determination that banks the DRR, and that the main goal of S. that provides an incentive for be assessed on the basis of the risk that 543 was to assure that the taxpayers institutions to control risk-taking their activities pose to the BIF and that would not be required to rescue the behavior while at the same time they be subject to appropriate economic banking industry as they so recently had covering the long-term costs of the disincentives to risky behavior. been called upon to do with the S&L In summary, the Board believes that obligations undertaken by the deposit industry. For example, on May 29, 1991, to be effective, the risk-based insurer. Robert Glauber, Under Secretary of the Specifically, section 7(b)(1)(C) of the Treasury testified before the House 8 One statutory restraint, however, is that the Ways and Means Committee ‘‘The FDI Act required the FDIC to establish system must be designed so that as long as the BIF a risk-based assessment system for reserve ratio remains below the DRR, the total Administration’s projections are that the calculating an institution’s assessments amount raised by semiannual assessments on BIF will decline substantially over the based on: members cannot be less than the total amount next five years, reaching a negative net (i) The probability that the deposit resulting from a flat rate of 23 basis points. FDI Act, worth of over $22 billion by the end of section 7(b)(2)(E). Although this provision will insurance fund will incur a loss with cease to be effective when the BIF reaches the DRR, 1996.’’ S. Hrg. No. 30, 102d Cong., 1st respect to the institution, taking into it may again become operative if the reserve ratio Sess. 8 (1991). The report of the Senate consideration the risks attributable to— remains below the DRR at some future time. The Banking Committee on S. 543 cited (I) Different categories and Board interprets the minimum assessment Congressional Budget Office projections provision of section 7(b)(2)(E), which requires concentrations of assets; weighted average assessments of 23 basis points, as indicating that the BIF could be (II) Different categories and applying only when the reserve ratio remains below recapitalized within 15 years without concentrations of liabilities, both the DRR for at least a year. imposing premiums as high as 30 basis 42684 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations points or more. However, the Committee six months when setting rates is without different clients based upon an declined to cap premiums at 30 basis foundation in either the statute or the assessment of their risk of loss.11 Private points in the event those projections legislative history and disregards the insurers uniformly underwrite specified proved too optimistic. S. Rep. No. 167, recent past history of bank failures, the risks that are similar in quality and 102d Cong., 1st Sess. 30 (1991). rapid deterioration and collapse of variety by using historical data to set Similarly, Senator John Kerry expressed seemingly healthy institutions, and the premium rates to cover long-term costs concern at the requirement of the bill increasing volatility of numerous of any given risk category.12 In banking, that the banking industry pay back any economic factors affecting both the however, the difficulty for the deposit Treasury borrowings, stating that that industry and the BIF. Moreover, such a insurer is determining when the funding approach could prove to be position ignores Congress’ primary goal revenues of any particular category are impossible. Id. at 230. S. 543 itself in enacting FDICIA—that the fund not sufficient to cover expected costs.13 In contained an elaborate scheme for decrease to the point that taxpayer casualty insurance, for example, the expedited congressional authorization funds are needed to rescue the BIF. events insured against are independent to extend the 15-year recapitalization In fact, the legislative history of of each other and are uncorrelated over schedule if necessary. FDICIA indicates that Congress time. By contrast, bank failures are not The following remarks of intended the FDIC to set premiums in evenly distributed or uncorrelated but Congressman Gerald Kleczka during much the same manner as private tend to be clustered as a function of floor debate in the House reflect the insurance companies, where the economic conditions or shocks.14 This skepticism that banks would be able to insured’s premium is a function of the makes it more difficult to set rates so recapitalize the BIF: risk posed to the insurer. For example, that the long-run revenues are sufficient Mr. Chairman, one of the Members of the in his opening remarks at the Senate to cover the long-run costs of each risk House a short time ago asked, Where are we Banking Committee hearing on risk- category. going to look to bail out the banks? And he based premiums on April 19, 1991, In the absence of legislative direction, answered it himself by saying the banks. Senator Alan Dixon stated, ‘‘I think it is the Board believes that it is compelled Well, I say to you, that is total nonsense. fundamentally important for the Federal The bank bailout, whether or not this bill to give effect to the statutory directive Deposit Insurance Corporation to price to have a meaningful risk-based passes, has already started. The bank its product like every other insurance insurance fund, the FDIC, is broke. This assessment system and the directive to legislation asks for a $70 billion Treasury company—that is, according to risk of set rates to maintain the reserve ratio at loan, which in my estimation will never be loss.’’ S. Hrg. No. 355, 102d Cong., 1st the DRR, by balancing the various repaid by the banks. Sess. 1197 (1991). Accordingly, the statutory factors which underlie those In fact, with the pending bank failures on Board believes it appropriate as part of directives and which, ultimately, are the the line today, it is estimated that $70 billion its process for setting assessments to determinants of an appropriate will not last through the end of next year. At look to the practices of private sector assessment schedule. Neither of these that point we are going to loan them more insurers to inform its decisionmaking. money, more money, and to say that this is directives, nor any single statutory not going to turn into another S&L crisis, I As manager/administrator of the deposit factor, may be given effect at the say, hold on, you are in for a rough ride, insurance fund, the Board has a expense of the other. Thus, for example, because I say that is what is going to happen. fiduciary obligation to manage the fund in weighing the requirement to set in a prudent manner to preserve the 137 Cong. Rec. H8939 (daily ed. Nov. 1, assessments at a target DRR, the fund on behalf of both the banking 1991). ‘‘revenue needs of the fund’’ factor may industry and the taxpayers, who are Until now, the Board’s discretion in not be interpreted, as has been ultimately the insurers of last resort for suggested by some commenters,15 in setting risk-based assessments has been the banking industry. limited by the 23 basis-point minimum such a way that the risk-based Standard private sector insurance assessment system becomes average assessment requirement and the involves one party, the insured, who concomitant need to moderate the meaningless when the fund attains the seeks protection against a specific risk DRR. detrimental impact of a very high rate by paying a premium to another party, on weak institutions which taken the insurer, who agrees to compensate D. Rebates together were the most crucial the insured for any losses resulting from determinants of the assessment The Board is adopting its proposed the risk specified in the contract.9 interpretation that the Board lacks schedule. Once the DRR is achieved, However, federal deposit insurance however, the 23 basis-point minimum rebate authority because that authority differs from private insurance because was eliminated by Congress in FDICIA. requirement will become inapplicable. deposit insurance is intended to be a Therefore, the Board for the first time As discussed below, this position is pledge or guarantee meant to convey based on: (1) The statutory history of must decide as a prudent insurer what confidence to prevent the spread of assessment schedule would achieve an sections 7 (d) and (e); (2) the fact that bank runs and because it provides an Congress repealed the rebate authority effective risk-based assessment system unconditional guarantee to depositors based on long-term deposit insurance in section 7(d); and (3) the legislative that their insured funds are safe history indicating that Congress experience as well as short-term loss regardless of the risks undertaken by an predictions consistent with its insured depository institution.10 obligation to protect the BIF (and 11 Id. at 28. Private insurance companies typically 12 ultimately the taxpayers). Id. operate through a self-sustaining fund 13 FDIC, A Study of the Desirability and The statute is silent with respect to by basing the level of capital needed in Feasibility of a Risk-Based Deposit Insurance the appropriate timeframe the Board reserve on actuarial assessments of past Premium System, A report pursuant to Section should use to project losses. Although and potential losses. The insurer 220(b)(1) of the Financial Institutions Reform, section 7 requires the Board to set Recovery, and Enforcement Act of 1989, submitted charges different premium rates to to the United States Congress by the Federal assessments semiannually to maintain Deposit Insurance Corporation, at 11 (1990). the reserve ratio at the DRR, to assert— 9 Congressional Budget Office, Reforming Federal 14 Id. as did various commenters—that the Deposit Insurance, (1990) xv. 15 See, discussion of ABA comments at Section Board is limited to reviewing the next 10 Id. at xvi. IV.A., infra. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42685 intended that lower rates would be the 138 Cong. Rec. S2073 (daily ed. Feb. 21, particularly important because the substitute for rebates. 1992). (Emphasis added.) Clearing House does not believe that the In the proposal, the Board reviewed In response to the Board’s proposed FDIC will be able to maintain the the FDIC’s authority to provide rebates interpretation regarding the FDIC’s reserve ratio at 1.25 percent by of amounts by which the reserve ratio rebate authority, a total of 482 semiannual rate adjustments only, exceeds the DRR based on both former respondents generally disagreed with without some form of rebate and current statutory provisions in FDI the FDIC’s position; one trade mechanism. Citicorp also criticized the Act sections 7(d) and 7(e) respectively, association appeared to accept the FDIC’s interpretation, indicating that the and the legislative history of those interpretation and it requested a inability to provide rebates when the provisions. Based on that review, the legislative change to restore the rebate reserve ratio exceeds 1.25 percent makes Board proposed a statutory authority. Of those in disagreement, the determination of the proper rate interpretation that: (1) The FDIC’s seven BIF members, four trade schedule all the more critical. The IBAA similarly argues that, authority to provide rebates was associations and one individual without such authority, the FDIC will be eliminated by Congress in FDICIA explicitly disagreed with that unable to manage the BIF at the DRR as effective with the adoption of the interpretation, asserting that the FDIC did, in fact, have authority to provide required and that the FDIC’s statutorily mandated risk-based interpretation ignores the discretion to assessment system on January 1, 1994; rebates. A total of 400 commenters (383 BIF members, 3 SAIF members, 12 trade set rates given to it by Congress in and (2) section 7(e) does not provide connection with the risk-based associations and 2 other commenters) rebate authority, but rather pertains to assessments system. The IBAA and the largely without any discussion of the the method of providing refunds of Bankers Roundtable noted that although 16 FDIC’s legal authority, indicated that assessment overpayments. the authority of section 7(d) was when the BIF reserve ratio exceeds the In FDICIA, Congress provided for removed, the statute does not expressly DRR as a result of assessment income, establishment of a risk-based assessment prohibit the FDIC from providing the FDIC should return to BIF members system that, after the DRR was achieved, rebates pursuant to some other all assessments above 1.25 percent would provide the FDIC with the authority. flexibility to set a broader range of because those funds could be better The Board is unconvinced by the assessment rates. In 1990, Congress had used servicing local communities. In alternative interpretation offered by already provided the FDIC with the addition, 48 commenters (46 BIF commenters that rebate authority exists authority to adjust assessment rates members and 2 trade associations) in section 7(e), which authorizes the upward to ensure that the BIF received responded that assessment income in FDIC to refund or credit to an insured sufficient revenue.17 In FDICIA, excess of 1.25 percent other than the institution any assessment payment in Congress intended that same rate $1,000 statutory semiannual minimum excess of the amount due to the FDIC. adjustment authority to operate in lieu should be returned. Finally, 21 The Board does not believe it can ignore of providing rebates in the event that the commenters (15 BIF members and 6 unequivocal action by the Congress to established rates resulted in collection trade associations) asserted that when eliminate rebate authority by, in effect, of excess assessment revenue. the reserve ratio exceeds the DRR, the re-creating that authority through a new Therefore, Congress eliminated the FDIC should return both assessments interpretation of section 7(e) absent rebate provisions of section 7(d) in their and investment income above 1.25 some indication in the legislative entirety as being obsolete because the percent. history that Congress intended section ability to adjust rates would take the Based on its interpretation of the DRR 7(e) 18 to serve as a substitute for section place of a rebate mechanism. This is as a ceiling on the amount of funds that 7(d) of the FDI Act. clear from the following discussion of may lawfully be retained in the BIF, the Moreover, the FDIC has not located section 212(e)(3) in the Senate Report on ABA has asserted that all amounts any legislative history indicating that S. 543: (including investment income) in excess Congress intended section 7(e) to take of a reserve ratio of 1.25 percent must the place of section 7(d). Therefore, for Section 212(e)(3) replaced current section be rebated to the industry. The ABA has the reasons discussed above, the Board 7(d) with a new section 7(d) recodifying argued that returning excess reserve continues to believe that the better current section 7(b)(9). The deleted text, amounts by means of lowering providing for assessment credits to insured interpretation of the statute is that the institutions when deposit insurance fund subsequent assessments is merely one FDIC has no authority to grant rebates reserve ratios exceed designated reserve method of accomplishing the statutory and that to do so would be in violation ratios, is obsolete in light of the standards for intent to return funds; where that of the statute and contrary to legislative establishing assessments set forth in new method does not suffice to accomplish history. section 7(b)(2)(A)(i) [setting rates to maintain that goal, the statute should be at the DRR]. Under section 7(b)(2)(A)(i), interpreted to find an alternative III. New Rate Spread funds that, under current section 7(d), would method. Accordingly, notwithstanding The Board is adopting without have been rebated to insured depository the statutory history of section 7(e) and modification the proposal to increase institutions through assessment credits will the repeal of section 7(d), it argued that the rate spread from 8 basis points in now be rebated through reduced the FDIC could rely on an interpretation the current assessment schedule to 27 assessments. of the plain meaning of section 7(e) to basis points in the new schedule. implement the statutory purpose. As discussed in Section II.B.2(c), the 16 Section 7(e) provides that the FDIC: The New York Clearing House fundamental goals of risk-based (1) May refund to an insured depository assessment rates are to reflect the risks institution any payment of assessments in excess of (Clearing House) stated that the FDIC the amount due to the Corporation or (2) may credit has rebate authority pursuant to the posed to the insurance fund by such excess toward the payment of the assessment plain meaning of section 7(e) and that next becoming due from such depository institution there is no legislative history to indicate 18 Section 7(e) has been consistently interpreted and upon succeeding assessments until the credit by the FDIC since 1950 to provide authority to is exhausted. that that section should be interpreted refund erroneous overpayments of assessments. The 17 See, discussion of Assessment Rate Act, infra, other than in accordance with a plain FDIC has never interpreted that section as providing note 4. reading. Further, the rebate authority is rebate authority. 42686 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations individual insured institutions and to provide institutions with incentives to control risk taking. In the existing assessment schedule, the maximum rate spread is 8 basis points. See Table 1. Institutions rated 1A pay an annual rate of 23 basis points while institutions rated 3C pay 31 basis points. There is a substantial question as to whether 8 basis points represents a sufficient spread for achieving these goals. BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42687 BILLING CODE 6714±01±C 42688 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations As discussed in the proposal, the which is a fundamental goal of risk- between the lower- and higher-risk current assessment rate spread for BIF based assessments. Larger differences institutions. The Roundtable noted that institutions has been criticized widely are consistent with historical variations ‘‘risk-based premiums should address by bankers, banking scholars and in failure rates across cells of the matrix, all the strengths of an institution, not regulators as overly narrow, and there is viewed in connection with the merely capital. As the schedules now considerable empirical support for this preponderance of evidence regarding contemplate and as other regulators who criticism. Using a variety of actuarially fair premiums.21 The precise examine and evaluate institutions methodologies and different sample magnitude of the differences is open to assess, strong management and strong periods, the vast majority of relevant debate, given the sensitivity of any internal risk control systems are studies of deposit insurance pricing estimates to small changes in important as well.’’ have produced results that are assumptions and to selection of the Forty commenters opposed the consistent with the conclusion that the sample period. However, the Board proposed 27 basis-point spread. For rate spread between healthy and believes that larger rate differences example, the ABA asserted that the troubled institutions should exceed 8 between adjacent cells of the matrix are current spread should be retained basis points.19 While the precise warranted. Accordingly, the Board because it provides a strong incentive estimates vary, there is a clear proposed for comment an increase in for banks to move into the lower-risk consensus from this evidence that the the spread between the lowest and categories as evidenced by the increase rate spread should be widened. highest rates in the assessment schedule in 1A institutions between 1993 and FDIC research likewise suggests that a to 27 basis points from the current 8 1995 from 60 percent to 90 percent of substantially larger spread would be basis point spread. the industry. The ABA also indicated necessary to establish an ‘‘actuarially Of the 357 commenters (332 BIF concern about the emphasis on the fair’’ assessment rate system. Insurance members, 4 SAIF members, 16 trade supervisory rating because of its premiums are actuarially fair when the associations and 5 other organizations/ subjectivity. America’s Community discounted value of the premiums paid individuals) who addressed the issue of Bankers expressed similar reservations over the life of the insurance contract is the increased spread, 298 respondents and indicated that it would be better to expected to generate revenues that equal supported the proposal. Of those, 217 give more weight to capital because it is expected discounted costs to the insurer respondents (including 9 trade both a more objective and more from claims made by the insured over associations and 203 BIF members) controllable factor. Orange National the same period. A 1994 FDIC study expressly approved of the increase to 27 Bancorp commented that examiners used a ‘‘proportional hazards’’ model to basis points; an additional 70 have too much individual discretion in estimate the expected lifetime of banks respondents (including 1 trade assigning risk classifications. It that were in existence as of January 1, association and 69 BIF members) recommended that a standard model for 1993. The study estimated the indicated support for increasing the such evaluations be implemented if one actuarially fair premium that each bank spread but didn’t specifically mention is not already in place. The California must pay annually so that the cost of the proposed increase to 27 basis points. Bankers Association (CBA) opposed the each bank failure to the FDIC would Forty commenters (including 4 trade increased spread because of the belief equal the revenue collected through associations and 35 BIF members) that it too closely correlates with local insurance assessments. The estimates expressed the opinion that the proposed economic conditions that are beyond indicated a rate spread for 1A versus 3C spread was too great; by contrast, 12 institutions on the order of magnitude of commenters, all of whom were BIF the control of the institution. Thus, 100 basis points.20 members, thought the spread should be adverse local economic conditions may In the proposal, the Board expressed wider than proposed. Finally, 18 result in higher risk classifications at a concern that rate differences between commenters (including 2 trade time when the institution can least adjacent cells in the current matrix do associations and 12 BIF members) afford it. The CBA further noted that not provide adequate incentives for expressed reservations about the ‘‘[a] primary objective of deposit institutions to reduce the risk they pose increased weight given to the subjective insurance should be to spread to BIF by improving their condition, supervisory ratings in determining an uncontrollable risk among similarly institution’s risk classification. situated institutions. To impose 19 For a representative sampling of academic Among the commenters supporting additional premiums when that risk is studies on this issue, see Estimating the Value of the proposed increase, numerous actually realized is analogous to Federal Deposit Insurance, The Office of Economic respondents expressed the opinion that charging a person a universal health Analysis, Securities and Exchange Commission insurance rate, and then increasing that (1991); Berry K. Wilson, and Gerald R. Hanweck, A the proposal would provide BIF Solvency Approach to Deposit Insurance Pricing, members with greater incentive to rate when the person actually becomes Georgetown University and George Mason control risk while at the same time sick and requires care.’’ (Emphasis in University (1992); Sarah Kendall and Mark original.) The CBA proposed as an Levonian, A Simple Approach to Better Deposit rewarding well-managed institutions for Insurance Pricing, Proceedings, Conference on Bank limiting risk. For example, Banc One alternative a narrowing of the spread to Structure and Competition, Federal Reserve Bank of Corporation noted, ‘‘Prudent, healthy mitigate the penalties imposed on a Chicago (1991); R. Avery, G. Hanweck and M. institutions should not have to pay for bank for falling into a higher risk Kwast, An Analysis of Risk-Based Deposit category due to the effects of a local Insurance for Commercial Banks, Proceedings, ill-advised activities and high-risk Conference on Bank Structure and Competition, institutions.’’ The New York Clearing economic downturn. Federal Reserve Bank of Chicago (1985). House stated that ‘‘the larger spread is By contrast, the twelve commenters 20 See, Gary S. Fissel Risk Measurement, more actuarially equitable, in that it who indicated that the spread should be Actuarially Fair Deposit Insurance Premiums and reduces the burden that the strongest wider indicated that the proposed the FDIC’s Risk-Related Premium System, FDIC Banking Review (1994), at 16–27, Table 5, Panel B. institutions must bear to support the assessment schedule did not adequately Single-copy subscriptions of this study are available weakest.’’ The Bankers Roundtable reflect the true risk to the BIF. Several to the public free of charge by writing to FDIC indicated its support for incentive-based commenters raised concerns about the Banking Review, Office of Corporate insufficient distinction between the Communications, Federal Deposit Insurance regulation coupled with a strong spread Corporation, 550 17th Street, N.W., Washington, riskiness of low-risk banks. For D.C. 20429. 21 Id., at Tables 2 and 5. example, Wells Fargo Bank stated that Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42689 ‘‘[n]inety percent of banks should not be rate spread would only have been assessment rate structure to encourage included in the lowest risk category.’’ accomplished through an increase in the behavior that will protect the deposit A number of commenters indicated assessment rate paid by weaker insurance fund against excessive losses. support for the proposal that the nine- institutions. In contrast, under the new Nonetheless, the Board remains cell matrix should remain in place schedule the Board is now adopting, the unwilling at this time to increase further pending an in-depth review of the risk rate spread will be widened by means the maximum rate other than by means classification system. Expressing its of a reduction in the rates applicable to of the adjustment factor discussed support for deposit insurance rates as an stronger institutions. below, without further study regarding appropriate incentive for banks to Under the new schedule, all BIF- the overall insurance pricing structure control risky activities, the IBAA insured institutions except those with for the industry. recommended that the FDIC implement assessment risk classification 3C will the premium reduction before enjoy a reduction in their assessment IV. New Assessment Schedule considering modifications to the nine- rates, with a consequent beneficial In light of its interpretation of section cell matrix. The ABA indicated that impact on earnings and capital. The 7(b) discussed above and based on its bankers support keeping the risk only adverse effect on earnings and consideration of the required statutory classification system simple, and it capital conceivably could result from factors, the Board is adopting in the would not, therefore, support any the increase in the rate spread from 8 final rule its proposed new assessment revisions to the matrix involving the basis points to 31 basis points. Under rate schedule ranging from a rate of 4 creation of more categories or a new, the current assessment schedule, weaker basis points for institutions with a risk super-capitalized category. In Citicorp’s institutions are competing with classification of 1A to 31 basis points for view, ‘‘any change in the number of institutions that pay an assessment rate institutions rated 3C (see Table 1) and, cells will create disputes while of 23 basis points. Under the new as noted above, a spread of 27 basis producing very little additional equity’’ schedule, where all but institutions in points. As discussed below, the without greater explanation of the the 3C category will pay reduced rates, adoption of this schedule reflects the underlying rationale for any increase. the weaker institutions will be Board’s determination that the FDIC’s Citicorp called for frequent reviews an competing with a large group of BIF insurance responsibilities require it to institution’s risk so that the risk members that will be paying a rate of look beyond the immediate timeframe classification is based on current only four basis points. In principle, if in estimating losses and the revenue evaluations. the BIF members classified as 1A pass needs of the fund, and to take account along their reduced assessments to their The Board is adopting the proposed of the variability of the factors customers, the weaker institutions may increase in the spread from 8 to 27 basis influencing the BIF reserve ratio, be forced to pay more for deposits or points without modification. Having variability that can be substantial even charge less for loans to stay competitive. carefully considered the comments on within a single assessment period. the proposal, the Board nonetheless The FDIC performed an analysis continues to believe that the assessment simulating the effects of the wider rate A. Comments spread on all insured institutions under rate matrix should be adjusted in the The FDIC received 1401 comments direction of an actuarially fair rate the assumption that the weaker institutions would have to absorb the (1364 BIF members, 11 SAIF members, structure, as described above. In 14 trade associations and 12 other addition, as in the proposal, the Board entire increase in spread in the form of a higher cost of funds. The result was organizations or individuals) that either has decided not to adopt changes to the expressed general support for the nine-cell assessment rate structure at that apart from institutions that have already been identified by the FDIC’s proposed decrease in rates or this time. Accordingly, as proposed, the specifically mentioned support for the new rate matrix retains the existing nine supervisory staff as likely failures, the wider spread is expected to have a proposed schedule of 4 to 31 basis cells. points. However, 347 commenters (320 While the Board appreciates the minimal impact in terms of additional BIF members, 3 SAIF members, 22 trade concern expressed in the comments failures. associations, 1 organization and 1 regarding the additional weight placed A widening of the spread to 27 basis individual) expressed dissatisfaction on supervisory evaluations as a result of points is consistent with the with the rates specifically. As discussed the increased rate spread, the use of implications of the best empirical in Section II.B.1, most of the such evaluations as a risk measure is evidence on this issue and with the commenters argued that the proposed well-established. Historically, Board’s previously stated conviction. rates are too high to comply with the deteriorations in supervisory ratings are Moreover, the increased differences FDIC’s requirement to maintain the BIF associated with a substantially higher between adjacent cells in the matrix at its DRR. Eleven commenters stated incidence of failure. provides additional incentive for weaker When the Board adopted the existing institutions to improve their condition that the proposed schedule was too low. 8-point rate spread in 1992, it expressed and for all institutions to avoid Finally, forty commenters (7 BIF the conviction that widening the spread excessive risk-taking. This is consistent members, 23 SAIF members, 1 trade was desirable but declined to do so with the Board’s desire to create association and 9 other organizations/ because of the potential hardship for adequate incentives through the individuals) urged the FDIC not to troubled institutions and possible decrease BIF rates. additional losses for the insurance rate spread in 1993, the Board expressed its Those commenters who were satisfied 22 conviction that widening the rate spread was with the proposed rate structure fund. At that time, however, a wider desirable in principle, but chose to retain for the time being, the 8 point rate spread. The Board generally were pleased that they will 22 In the FDIC’s 1993 proposal for the existing expressed concern that widening the rate spread enjoy the benefit of a very large decrease statutorily mandated risk-based premium system, while keeping assessment revenue constant, might in assessments in the near future and the Board sought comment on whether the unduly burden the weaker institutions which expressed pride that the BIF will be assessment rate spread embodied in the existing would be subject to greatly increased rates. system, i.e., 8 basis points, should be widened. Of However, the Board retained the right to revisit the recapitalized much earlier than the 96 commenters addressing this issue, 75 favored issue at some future date. 58 FR 34357 (June 25, expected and without taxpayer a wider rate spread. In adopting the existing 8 point 1993). assistance. 42690 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Of the commenters who indicated that which thought the loss projections were period over which to estimate insurance the proposed assessment schedule was completely inadequate for the potential losses, and the relation of this question too high, 115 (including 12 trade risks facing the industry. They to the statutory requirements to associations and 102 BIF members) interpreted the statutory DRR as a floor, maintain the BIF at its target DRR and stated specifically that the rate either for and urged the FDIC to establish a higher to have a system of risk-based institutions with a 1A risk classification range for the DRR with a target average assessments. Subsection (c) describes or for all institutions should be 0 basis of 1.63 percent using 1.25 percent as the the increase in volatility of key points (the ABA position); 87 floor and 2.0 percent as the ceiling. economic variables characteristic of the commenters (including 2 trade In view of the numerous comments on post-1980 period and reviews the associations and 84 BIF members) the propriety of the average rate implied increase in banking-industry risk that asserted that the rate for 1A institutions by the proposal, the Board finds it also occurred during this period. The should be decreased to 2 basis points appropriate to provide here a detailed basic conclusion is that a return to the (the IBAA position). Many cited the summary of the analysis and reasoning relative stability of the 1950–1980 statements in the proposal indicating that served as a basis for its decision to period is unlikely and, thus, the FDIC is that it was likely that the BIF reserve adopt the proposed rate schedule in the likely to experience continued volatility ratio could be maintained at 1.25 final rule. Accordingly, this section in insurance losses in the years ahead. percent in the second half of 1995 solely considers in depth the analysis Subsection (d) provides a brief as a result of investment income as supporting the approach adopted by the discussion of the risks in banking today support for their position that the Board for satisfying the requirements to and a historical perspective on the risks proposed rate schedule is too high, at maintain the reserve ratio at 1.25 associated with highly rated and well least with respect to 1A institutions. percent and to have a risk-based capitalized banks. The information In fact, the ABA argued that when the assessment system. presented indicates that a meaningful BIF does not need assessment income to assessment of risks posed by insured remain at 1.25 percent, the FDIC may B. Review and Balancing of Statutory institutions must look beyond the not assess any BIF members, i.e., Factors immediate timeframe. Subsection (e) assessing a zero rate on all such As discussed in Section II, pursuant discusses the average assessment rates regardless of risk. The ABA’s position is to the directive of section 7(b)(1) to have that would have maintained the fund at that the risk-based assessment spread is a risk-based assessment system and the a given reserve ratio at various times in determined independently from the directive of section 7(b)(2)(A)(ii) to the FDIC’s history, and sets out how it revenue needs of the fund; that spread maintain the reserve ratio at the DRR, would be destabilizing to the banking is simply moved up or down in order to the Board is required to review and industry for the FDIC to attempt to generate the required revenue to offset weigh the following factors when maintain continuous equality of the BIF expenses, i.e., the rate schedule itself is establishing an assessment schedule: to its DRR by trying to equate revenues solely a function of the amount of (1) The probability and likely amount and expenses during every six-month revenue needed to maintain the BIF at of loss to the fund; period. The analysis indicates that an 1.25 percent. Thus, where no income is (2) Case resolution expenditures and average effective assessment rate in the needed, there is no need for the risk- income; range of four to 13 basis points would based assessment system. However, the (3) Expected operating expenses; have matched revenue and expense over ABA argues that beneficial incentives (4) The effect of assessments on most of the FDIC’s history. It also for bank performance will still operate members’ earnings and capital; indicates that recent changes in because riskier banks will not know in (5) The revenue needs of the fund; business conditions, including several advance whether the revenue needs of and statutory changes, strongly suggest that the BIF will require imposition of an (6) Any other factors that the Board a rate at the low end of that range assessment, so unless they improve may deem appropriate. should be adopted. Subsection (f) their performance, they will face the 1. Analytical Framework discusses the implications of volatility prospect of paying higher assessment in insured deposits for the rate-setting rates than their peers. Moreover, they (a) Summary. In principle, the process. argue that a zero rate serves as an requirements to maintain the reserve (b) The Planning Horizon for Rate incentive to manage banks well. ratio at the DRR and to have Setting. An important part of the rate- Some commenters also criticized the assessments for individual institutions setting process is the desire to equate historical basis on which expected based on risk to the fund complement revenues with expenses over a period of losses are forecast by the FDIC. Several and reinforce each other. Maintenance time. The answer to the question ‘‘over commenters asserted that the statute of a particular reserve ratio requires the what period of time?’’ has important requires the Board to set assessments FDIC to attempt to match fund revenue ramifications for the way the FDIC sets based on the revenue needs of the BIF and expense over time. An important assessments and manages its reserve for the succeeding six month period, not element of that requirement comes from ratio, as well as for the banking on a historical basis. Finally, many a risk-based assessment system that industry. This matching of revenue and commenters indicated that the use of equates revenue with ‘‘expected cost’’ expense encompasses most of the the historical average fails to take into over a long period. The estimation of statutory factors required to be account the fundamental changes that expected insurance losses is thus considered by the Board in that it seeks have occurred since FDICIA, i.e., least- important both in the structuring of risk- to determine the revenue needs of the cost resolutions, prompt corrective based assessments and maintaining a fund in light of the probability and action, cross-guaranty authority, and given reserve ratio over a period of time. likely amount of losses, expected case depositor preference statutes. The following subsections outline the resolution expenses and income, and On the other hand, some of the FDIC’s analysis and the use of that the amount of operating expenses. commenters argued that the BIF rates analysis for informing the decision of Purely for expositional purposes, it is should not be decreased at all. Among the Board regarding BIF assessment useful to consider an extreme case these was the Center for Study of rates. Subsection (b) discusses in where revenues and expenses are Responsive Law/Essential Information, general terms the selection of a time balanced over a very short horizon, say Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42691 one day. One could imagine that each Attempting to equate revenues and variables that directly and indirectly morning banks would be billed expenses over a longer period has the affect banking risk. Part (ii) contains a electronically for the cost of any bank risk-spreading advantages classically more specific discussion of failures expected to occur that day. In associated with insurance. Assessments developments in the financial services this extreme case, the BIF could be are collected when times are good to industry and in the characteristics of managed to within very close to its DRR pay for problems when times are bad, insured banks. on a virtually continuous basis (ignoring and there can be some measure of (i) Key economic variables. For about uncertainties about the level of insured stability to the assessment rates, thereby twenty years beginning in the early deposits). avoiding the adverse effects on bank 1950s, the U.S. economy and the In this example the FDIC’s insurance earnings and capital discussed above. commercial banking industry enjoyed a function would be that of allocating Under this regime, the intent would be period of relative stability. Key current costs across banks through to maintain the insurance fund at the economic variables such as inflation, billings and collections on a pay-as-you- DRR on average over the planning interest rates and exchange rates go basis. The word ‘‘insurance’’ is horizon, rather than continuously. displayed remarkable stability, and in normally associated with the concept of The choice of a planning period for part as a result, bank failures were few. spreading risk. This risk spreading can equating revenues and expenses is This period of stability began to end in be over time, across the insured parties, therefore a fundamental decision for the the 1970s. or both, depending on the type of FDIC as manager and fiduciary of sound An important change in the nature of insurance. A pay-as-you-go system in deposit insurance funds. Relevant to the economic volatility resulted from the which the cost of the insured event is judgment is whether it is consistent movement to a floating exchange rate borne entirely at the time the event with the FDIC’s mission that the entire system from a fixed rate system that occurs does not accomplish the cost of banking problems be paid by the occurred in 1973. As international trade spreading of risk over time. banking industry during the assessment Whether the spreading of risk over expanded in the post World War II era, period in which they occur. As time is important in banking is an the maintenance of fixed exchange rates discussed below, the use of a pure pay- empirical question that is discussed required adjustments to trading as-you-go approach is inconsistent with below in subsection (e) of this section. relationships and domestic economic the FDIC’s mandate to charge If the FDIC had operated on a yearly policies of trading nations that were not assessments that reflect the probability pay-as-you-go basis during the post- optimal. Thus, the change substituted and like amount of loss to the insurance 1980 period, for example, assessments volatility in interest rates and funds because this approach ignores the would have been as high as 62 basis commodities prices for increased risks that exist beyond a six-month points in 1991. Rates at that level would volatility in exchange rates. However, as horizon. In addition, the pay-as-you-go have adversely affected the earnings and explained below, subsequent events approach, if adopted as a general rule, capital of the industry and the have tended to increase the volatility in would result in adverse effects on bank soundness of the FDIC insurance fund. other financial and economic variables earnings and capital during times of In general, one can say that the beyond the levels experienced in the stress in banking. shorter the planning horizon over which fixed exchange rate environment. one tries to equate revenues and (c) Increased Economic Volatility and With the Smithsonian Agreement (see expenses, the more certainty there will Bank Stability. The economic be about loss estimates, and the easier environment affecting banks began to Figure 1 for the German mark (DEM) it will be to manage the reserve ratio to change during the 1970s and the pace of and Japanese yen (JPY) in 1971 to 1973), any given level. On the other hand, the change accelerated during the 1980s. exchange rates among all of the major shorter this planning horizon, the less The result is that banking is a riskier currencies were realigned and permitted the FDIC’s business would resemble the and more demanding business today to float without upper and lower risk-spreading function of an insurer than ever before. This subsection bounds. These developments and the greater the risk that high and documents some major changes in the predictably gave rise to considerably volatile insurance premiums would banking environment that have occurred greater exchange rate volatility at a time adversely affect the earnings and capital during the last 15 to 20 years. Part (i) when world trade was also expanding of the banking industry and the contains a discussion of the increased rapidly. soundness of the insurance fund. volatility of certain key macroeconomic BILLING CODE 6714±01±P 42692 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42693 Markets for forward and futures exchange rate contracts developed in order for firms to manage more effectively exchange rate risks and markets for combined currency and interest rate swaps have followed this trend. The Chicago Mercantile Exchanged formed the International Money Market (IMM) and began offering the first foreign exchange futures contract on major currencies in 1972.23 The volatility that gave rise to these contracts can be seen in Figure 2, comparing the volatility in the dollar exchange rate with the German mark and the Japanese yen.24 BILLING CODE 6714±01±P 23 These contracts were also the first financial futures contracts offered in the U.S. 24 Volatility is measured in each period as the standard deviation of the monthly percentage change of each exchange rate. The standard deviation is measured using observations over the prior six months. 42694 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42695 Since 1970, there have been periods and futures contracts for foreign The more uncertain and volatile are of relative calm in exchange rates (e.g., exchange, such volatility would be less exchange rates, the greater the 1976–77) interspersed with periods of manageable and would significantly opportunities for losses and the greater substantial volatility, some considerably lessen foreign trade. the need for hedging assets and extended, and periods with volatility A second source of volatility, not liabilities from exchange rate risk. The varying among currencies. For example, unrelated to the adoption of a floating greater volatility experienced in the first oil embargo in 1973 resulted in exchange rate system, is in the levels exchange rates is translated into greater increased volatility for the mark, but a and term structure of interest rates. interest rate volatility as banks and decrease for the yen. In the European Foreign exchange rates and interest rates other investors attempt to hedge Monetary System currency crisis in late among countries are related through positions in loan and deposit markets summer and early fall of 1992, the yen arbitrage opportunities to borrow and and arbitrage among interest rate actually showed a decline in volatility, lend in different currencies. Banks are differentials that arise among debts but the mark, the most appreciated active participants in foreign markets denominated in various currencies. An European currency at the time, showed and international deposit and loan example of the relationship of the link a sharp increase in volatility. More markets for their own account and those between exchange rate volatility and recently, the change in monetary policy of their customers. Banks that are interest rate volatility was during the by the Federal Reserve in February 1994 lending and borrowing abroad face risks period of adjustment in 1973 to the new resulted in a depreciation of the dollar of exchange rate changes that affect the exchange rate regime and the rise in relative to the mark, increased volatility dollar value of their loans and liabilities U.S. interest rate volatility during this in exchange rates, and sharp increases denominated in foreign currencies. The same period (see Figure 1 for the rapid in foreign and domestic interest rates interest rates banks and other investors appreciation of the DEM and JPY during (see Figure 2 for exchange rate volatility are willing to accept for loans and pay this period and interest rate volatility in from January to May 1995). Without the on borrowings are affected by their Figure 3). well-developed markets for forwards expectations of future exchange rates. BILLING CODE 6714±01±P 42696 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42697 Volatility in the level of interest rates Correspondingly, it was about this time forward, futures, and options on future can be seen in Figure 3 for the 3-month when the volume of interest rate futures interest rates, and options on futures T-bill rate (the darker connected line). contracts was beginning to grow on the contracts. Volatility in the term In this figure, the dark bars are periods Chicago Mercantile Exchange and the structure can also give rise to volatility of recession (peak to trough) as Chicago Board of Trade.26 Soon of bank earnings to the extent that banks designated by the National Bureau of afterwards, over-the-counter interest face gaps between interest sensitive Economic Research. Volatility is rate forwards and swaps were assets and interest sensitive liabilities. presented in this figure as the computed introduced on a meaningful scale and The causes of this volatility in interest likelihood of being in a high interest their growth accelerated by 1986, rates have been linked to expectations of rate volatility regime (the light, spiked coinciding only incidentally with the changes in future short-term interest areas measured on the left axis); that is, period of the collapse in world oil rates fed by the volatility in the rate of a period where the standard deviation of prices. daily interest rate changes is statistically Another source of volatility is in the inflation and inflation expectations. expected to be higher than average. As term structure of interest rates. The Figure 4 shows the 3-month T-bill rate can be seen, the period of the 1960s was importance of the volatility in the term and the difference between the 10-year relatively calm with the exception of the structure stems from the need to have T-bond rate and the 1-year T-bond rate recession of 1969 to 1970. After this accurate estimates of future short-term as a proxy for the steepness in the yield period, interest rates became more interest rates. Expected future short- curve. It is clear that the yield curve has volatile, as did general economic term interest rates form the basis for the been volatile and at times has become activity. During the 1970s, several oil valuation of interest rate swaps, inverted (periods such as 1972 through embargo shocks in 1973 and 1978 late 1974, and early 1978 through 1982 resulted in accelerating inflation and volatility occurring at this time. What is also when the 1-year T-bond yield was contributed considerably to interest rate interesting is that a period of high interest rate volatility occurred in early 1987 coinciding with an higher than the 10-year yield), requiring volatility. The Federal Reserve apparent change in monetary policy. It is important considerable caution in funding long dramatically changed monetary policy to note that changes in monetary policy tend to positions in long-term assets or fixed in October 1979 by switching from an evoke periods of greater interest rate volatility and rate assets with short-term, variable rate interest rate target to a monetary possible adverse effects on bank earnings. 26 The development of interest rate futures liabilities. In periods of substantial aggregates target, such as nonborrowed contracts was given a boost in 1974 with the volatility in the term structure, simple reserves, with the objective of reducing creation of the Commodity Futures Trading methods of interest rate risk inflation. The result of this policy was Commission. The CFTC was given exclusive management, such as duration gap a highly volatile interest rate period responsibility over futures markets. As a by-product management, become incomplete from October 1979 until late 1982.25 of this legislation, cash settlement of futures contracts was permitted. The provision of federal methods of managing interest rate risk. law superseded state laws that prohibited contracts 25 The stock market crash in October 1987 is also settled in cash because they were considered BILLING CODE 6714±01±P clearly evident in Figure 3 with a period of high wagers and were treated as illegal gambling. 42698 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42699 A final source of increased volatility is that arising from general economic activity. To a considerable extent, the volatility in general economic activity can be traced to real shocks, such as the oil embargoes of the 1970s, wars, dissolution of the Soviet Union, and the fiscal and monetary policies of the major industrialized nations. These shocks have caused considerable volatility in commodity prices and real output. The record inflation of the 1970s was followed by a period of slower inflation, but greater commodity price volatility. Figure 5 presents commodity prices (CRB Raw Materials Spot Prices) compared with the Consumer Price Index (All Urban Areas). Although the oil shocks of the 1970s resulted in considerable inflation in commodities and consumer prices, the volatility that also resulted in commodity prices has not abated during the 1980s or early 1990s. BILLING CODE 6714±01±P 42700 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42701 The volatility of prices and general economic activity can have a substantial impact on banking performance, as the experience of the 1980s makes clear. The sectoral inflation and subsequent deflation of agricultural prices in the late 1970s and early- to mid-1980s was a major contributor to the failure of hundreds of agricultural banks. Similarly, the boom and subsequent collapse of oil prices caused significant problems for banks in states whose economies had important energy sectors. The real-estate problems of the 1980s and early 1990s caused major problems for many banks. These problems can be traced in part to unanticipated changes in regional economic conditions, as the behavior of real estate prices departed sharply from past patterns (Figure 6). BILLING CODE 6714±01±P 42702 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42703 (ii) Trends in the banking industry options for firms that formerly were While annual bank failures exceeded since 1980. Since 1980, the business of restricted to bank loans. Banks have single digits only rarely between 1940 banking has changed considerably. As been forced to seek new sources of and 1980, failure rates rose rapidly noted above, risks have increased as income and to implement untested thereafter to a record high of 200 in interest rates, exchange rates and business strategies, and such 1988 (221 including assistance commodity prices have become more experimentation carries inherent risks. transactions). A similar picture emerges volatile and as economic shocks have The major trends affecting the from the data on FDIC insurance losses been transmitted more widely via the banking industry since 1980 are relative to insured deposits (Figure 8). summarized in an accompanying series globalization of markets. Meanwhile, Annual insurance losses were extremely of charts. The charts emphasize the competition in the financial low on average prior to 1980, less than substantial increase in banking risk as marketplace has greatly intensified. The half a basis point of insured deposits, compared to earlier periods, and the and were quite stable; losses for the traditional intermediation function of role of competition and innovation as 1980–94 period exceeded 14 basis banks has assumed a smaller role in forces driving this development. aggregate economic activity, largely Dramatic evidence that banking has points on average and were highly because financial and technological become riskier is observable in the variable. innovations have increased the funding annual rates of bank failure (Figure 7). BILLING CODE 6714±01±P 42704 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42705 BILLING CODE 6714±01±C 42706 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Net loan charge-offs as a percent of average total loans have trended upward since the early 1970s, accelerating rapidly beginning in 1980 and reaching a peak of 1.57 percent in 1991 (Figure 9). Over the same period, bank stocks substantially underperformed the S&P 500 (Figure 10). BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42707 42708 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42709 The effects of increased competition and innovation are inextricably intertwined. Both have played a role in the banking industry’s declining share of financial-sector assets since 1980 (Figure 11). Innovation has transformed the commercial paper market into a formidable competitor for banks. Figure 12 shows that the ratio of commercial paper outstanding to bank commercial and industrial loans (C&I loans) has increased four-fold since 1980. Meanwhile, the ratio of finance- company business loans to bank C&I loans has more than doubled over the same period, and most of this growth has occurred since 1982 (Figure 13). BILLING CODE 6714±01±P 42710 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42711 42712 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42713 The growth in securitization of loans represents another dimension of the competitive pressures faced by banks. By increasing the liquidity and efficiency of the credit markets, securitization produces a narrowing of the spreads available to traditional lenders such as banks and thrifts. The outstanding example of this process occurs in the mortgage market, where the proportion of consumer mortgages pooled for resale (or ‘‘securitized’’) has grown from about 10 percent in 1980 to more than 40 percent as of year-end 1993 (Figure 14). BILLING CODE 6714±01±P 42714 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42715 On the liability side, banks have faced increasing competition from many nonbank financial institutions. Foremost among these have been the money-market mutual funds (MMMFs), which rose from obscurity in 1975 to prominence by 1981: the ratio of MMMF balances to comparable commercial bank deposits (small time and savings deposits) was virtually zero during the mid-1970s, but reached nearly 35 percent by 1981 (Figure 15). After declining briefly to 25 percent in the early 1980s, this ratio grew steadily thereafter, exceeding 40 percent by the end of 1993. BILLING CODE 6714±01±P 42716 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42717 These developments have forced changes in the business strategies of commercial bankers. Faced with diminished opportunities for C&I lending, banks have shifted into real- estate lending in recent years (Figure 16). This new portfolio composition has exacerbated the adverse effects on banks of downturns in regional real estate markets. Noninterest income also has become more important for bankers (Figure 17), and off balance-sheet activities have grown substantially in recent years. The dollar amount of these activities was roughly 60 percent of the comparable amount for on balance-sheet activities in 1984, but this figure grew to 120 percent by the end of the decade. Taken together with the periodic, large- scale movements in and out of particular lending markets (LDC, HLT, commercial real-estate development, and the like), these portfolio shifts suggest that many banks have embarked on a widening search for new profit opportunities in response to the competitive pressures undermining their traditional niche in the financial marketplace. BILLING CODE 6714±01±P 42718 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42719 BILLING CODE 6714±01±C 42720 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Innovations in information systems substantial amount of volatility in reports of potential problems in the technology have effectively integrated insurance losses in the coming years. agricultural sector, and continuing network development, (d) Risks in Banking Today. The economic weakness in California must telecommunication technology and banking industry at present is in good be considered. computing into a tool for expansion in health, with high earnings, high Some historical perspective is also twenty-four hour global trading, market capitalization, and few problem useful for assessing current banking monitoring and sophisticated risk institutions. The risks that currently risks. Information problems are inherent management. These developments have confront the industry do not pose an in evaluating the condition of banking permitted a global markets presence for imminent threat, but several general institutions, and the uncertainty is major banking companies and have concerns can be identified. compounded in attempting to identify Market participants continue to expanded the opportunities for global emerging problems. History shows that anticipate significant volatility in a substantial percentage of bank failures market developments in exchange- interest rates and exchange rates, as traded products and dealing in over-the- have been unanticipated as early as two evidenced by the explosive growth of years prior to failure. The FDIC counter bilateral contracts. Advances in derivative instruments expressly telecommunications, in particular, have examined 1,286 bank-failure cases from designed to hedge against this volatility. 1982–1994 in order to determine the permitted the rapid and inexpensive Competition from nonbank sources transmission of market information and CAMEL ratings of the institutions prior remains intense and likely will increase to failure. Table 2 displays the relevant the globalization of markets. The result for the reasons cited above, putting may be a banking environment that is results. Two years prior to failure, pressure on banks’ interest-rate margins. almost 47 percent of the institutions had more complex and less transparent than The industry is restructuring through 28 at any time since the 1920s. composite CAMEL ratings of 1 or 2. Of mergers and is adjusting to the changing the 1,189 cases for which CAMEL At present, there is no indication that rules with respect to interstate banking ratings could be obtained 3 years prior the forces discussed above are abating. and branching. While these to failure, over 60 percent of the Nor are there reasons to expect that the developments in general bode well for institutions (which accounted for almost degree of competition or the pace of the deposit insurance funds, major 75 percent of failed-bank assets in the innovation will reverse course in the structural changes in an industry sample) were rated 1 or 2. foreseeable future. To the contrary, the usually are accompanied by some costly BILLING CODE 6714±01±P relentless decline of information costs mistakes by individual firms. Finally, the possibility of an economic in recent years augurs, if anything, 28 slowdown later in 1995 and 1996,27 Not all institutions were examined precisely stronger competition for banks, two years prior to failure. The results reflect the occurring on new fronts and originating ratings in the examination database as of two years 27 from new sources. In view of these The consensus forecast reported by Blue Chip prior, but the date of examination varies across Economic Indicators as of July 1995 was for slower institutions. Nonetheless, these data represent the realities, it is reasonable to assume that GDP growth in late 1995 and 1996 than prevailed current rating of the institution as of two years prior the FDIC will continue to experience a in 1994. to failure, based upon the latest examination. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42721 BILLING CODE 6714±01±C 42722 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Similarly, Figure 18 indicates that the vast majority of banks that failed between 1987 and 1994 were well capitalized three years prior to failure. Moreover, 80 percent of failed-bank assets over this period originated from institutions that were well or adequately capitalized three years before failure. BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42723 BILLING CODE 6714±01±C 42724 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations The track record of models developed the cell. Projections for a one-year The ‘‘pro forma’’ model has fared no to project bank failures illustrates the horizon are based on the one-year better. This model assumes that an same issue: these models exhibit a high failure experience of banks that would institution’s current portfolio degree of imprecision. Table 3 presents have qualified for the cell at any time composition will be maintained in the annual forecast errors from two types of during the previous three years, those future and that the recent relationship failure projection models employed by for a two-year horizon are based on the between nonperforming loans and the FDIC. The ‘‘actuarial’’ model groups two-year historical experience, and so subsequent charge-offs will prevail as banks into 25 cells of a matrix based on on. The one- and two-year projection well. The one-and two-year projection current performance characteristics. errors for failed-bank assets from this errors from this model have never been Failures are projected for each cell model over the past 7 years have been lower than 80 percent. according to the three-year historical large by any reasonable standard, failure experience of banks with regularly exceeding 50 percent and BILLING CODE 6714±01±P characteristics matching the criteria for occasionally approaching 100 percent. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42725 BILLING CODE 6714±01±C 42726 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Similar conclusions emerge from an insured institutions must look beyond a of the banking system but, like other analysis of the failure projections made six-month period. fundamental changes in the ‘‘rules of by the FDIC’s supervisory staff. These Another important point that emerges the game’’ governing depositories, could projections list, on an individual bank from Table 3 relates to the volatility of result in costly mistakes by some basis, the banks with over $100 million forecasting errors in predicting bank institutions. failures. While the total volume of assets in assets that are deemed to have a This section provides information on in banks failing from 1988 through 1994 greater than 50 percent probability of the FDIC’s loss experience since 1935. was just 13.7 percent shy of the total failing during each of the next eight Information on hypothetical ‘‘breakeven quarters. Since 1992, assets in failing amounts projected over that period assessments’’ is provided for two institutions have ranged from 18 percent using a one-year forecast horizon, the scenarios: Pay-as-you-go versus a long- to 80 percent of those listed as being errors in any given year were much run average cost assessment structure. likely to fail within one year under this larger, ranging from an 86 percent Information on the pay-as-you-go approach. The forecast errors are overprediction for 1992 to a 59 percent approach is used to evaluate the substantially higher when a two-year underprediction in 1987. Thus, while it desirability of that approach, with the horizon is used. This illustrates that may be possible to discern trends in result being an unfavorable evaluation. predicting the identity and timing of the bank failures over a reasonably long failures of specific institutions is even period, there is considerable uncertainty Table 4 shows assessments that would more difficult than predicting the total regarding the timing of these failures. have been needed to maintain the BIF volume of assets in failed banks. (e) Rate Setting—Historical Context at 1.25 percent of insured deposits on an In short, indicators such as CAMEL and Current Conditions. The annual basis since 1949. These account ratings, capital categories, and failure considerations described in the for the effects of investment income, projections appear to be driven largely subsection (c) suggest that financial operating expenses and changes in the by the current condition of insured services and banking experienced a amount of insured deposits in the institutions and not by underlying risks fundamental increase in risk during the banking system. Figure 19 shows that that are difficult to identify and predict. 1980s, and that the pressures that these ‘‘pay-as-you-go’’ assessments are The record shows that these risks brought about this increase in risk have much more volatile than the actual cannot be ignored even for institutions not abated. Banking today remains a assessments that were charged by the that currently appear healthy. These highly competitive and demanding FDIC, because of the tendency of bank findings serve to emphasize that any business. Opportunities for geographic failures to be ‘‘bunched’’ as a function meaningful assessment of the risks expansion and diversification will most of economic shocks, rather than being posed to the deposit insurance funds by likely increase the safety-and-soundness evenly distributed over time. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42727 TABLE 4.ÐBIF PREMIUM RATES AND RATIOS: EFFECTIVE, PAY-AS-YOU-GO, AND FIXED RATE SCENARIOS Effective Pay-as-you-go Fixed assessments Year Assessment Assessment rate BIF ratio rate BIF ratio 4.5 bp ratio 7 bp ratio 13 bp ratio 1994 ...... 23.60 1.15 ¥16.7 1.25 ¥0.42 1.42 1.16 1993 ...... 24.40 0.69 ¥37.3 1.25 ¥0.56 1.11 0.80 1992 ...... 23.00 ¥0.01 ¥10.8 1.25 ¥0.92 0.60 0.23 1991 ...... 21.25 ¥0.36 62.8 1.25 ¥0.93 0.44 0.04 1990 ...... 12.00 0.21 49.0 1.25 ¥0.05 1.20 0.76 1989 ...... 8.33 0.70 17.7 1.25 0.59 1.75 1.26 1988 ...... 8.33 0.80 32.3 1.25 0.78 1.89 1.33 1987 ...... 8.33 1.10 8.9 1.25 1.16 2.21 1.60 1986 ...... 8.33 1.12 16.9 1.25 1.23 2.18 1.54 1985 ...... 8.33 1.19 8.8 1.25 1.38 2.31 1.60 1984 ...... 8.00 1.19 10.2 1.25 1.44 2.32 1.56 1983 ...... 7.14 1.22 7.6 1.25 1.52 2.35 1.54 1982 ...... 7.69 1.21 9.8 1.25 1.57 2.38 1.49 1981 ...... 7.14 1.24 ¥1.4 1.25 1.65 2.45 1.46 1980 ...... 3.70 1.16 6.5 1.25 1.56 2.27 1.29 1979 ...... 3.33 1.21 ¥1.3 1.25 1.60 2.32 1.21 1978 ...... 3.85 1.16 3.3 1.25 1.52 2.19 1977 ...... 3.70 1.15 4.1 1.25 1.51 2.16 1976 ...... 3.70 1.16 5.8 1.25 1.52 2.15 1975 ...... 3.57 1.18 3.3 1.25 1.54 2.17 1974 ...... 4.35 1.18 6.2 1.25 1.54 2.14 1973 ...... 3.85 1.21 5.5 1.25 1.57 2.17 1972 ...... 3.33 1.23 6.4 1.25 1.60 2.19 1971 ...... 3.45 1.27 2.4 1.25 1.65 2.24 1970 ...... 3.57 1.25 5.5 1.25 1.63 2.19 1969 ...... 3.33 1.29 0.3 1.25 1.66 2.22 1968 ...... 3.33 1.26 7.5 1.25 1.60 2.12 1967 ...... 3.33 1.33 6.1 1.25 1.68 2.20 1966 ...... 3.23 1.39 6.0 1.25 1.73 2.24 1965 ...... 3.23 1.45 4.7 1.25 1.79 2.30 1964 ...... 3.23 1.48 3.7 1.25 1.81 2.31 1963 ...... 3.13 1.50 0.7 1.25 1.82 2.30 1962 ...... 3.13 1.47 2.4 1.25 1.77 2.21 1961 ...... 3.23 1.47 3.3 1.25 1.75 2.16 1960 ...... 3.70 1.48 1.6 1.25 1.75 2.14 1959 ...... 3.70 1.47 ¥0.1 1.25 1.71 2.07 1958 ...... 3.70 1.43 4.5 1.25 1.64 1.96 1957 ...... 3.57 1.46 1.7 1.25 1.66 1.95 1956 ...... 3.70 1.44 1.2 1.25 1.62 1.88 1955 ...... 3.70 1.41 2.0 1.25 1.58 1.80 1954 ...... 3.57 1.39 2.3 1.25 1.54 1.73 1953 ...... 3.57 1.37 0.9 1.25 1.51 1.67 1952 ...... 3.70 1.34 2.5 1.25 1.46 1.57 1951 ...... 3.70 1.33 3.0 1.25 1.43 1.51 1950 ...... 3.70 1.36 11.5 1.25 1.41 1.45 1949 ...... 8.33 1.57 0.4 1.25 1.57 1.57 BILLING CODE 6714±01±P 42728 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42729 Pay-as-you-go assessments have the undesirable effect that the banking industry must pay the most for its insurance at precisely the time it can least afford it. For example, as indicated in Figure 20, in 1988 through 1991, when the banking industry was experiencing its greatest difficulties since the 1930s, pay-as-you go assessments would have drastically reduced bank income. In 1988, median bank return-on-assets (ROA) would have been reduced by 37 percent; in 1989 by 19 percent; in 1990 by 57 percent; and in 1991 by 71 percent. These sharp reductions in income could have significantly impaired the recovery and recapitalization of the banking industry and increased the FDIC’s costs from bank failures. Thus, the Board’s obligation to consider the impact on bank earnings and capital of an assessment rate structure would virtually preclude it from adopting a rigid pay-as-you-go rate-setting approach. BILLING CODE 6714±01±P 42730 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42731 For these reasons, there is likely to be The alternative basis for setting BIF the danger of subsequent deflation considerable pressure brought to bear on assessments, and the basis adopted by appear less of a concern now than in the the FDIC during periods when the the Board, is to look beyond the 1980s. While underlying risks are still banking industry is under stress not to immediate time frame in estimating the significant, the banking industry will charge assessments high enough to revenue needs of the fund. For face any new episode of problems with maintain the DRR. If the reserve ratio illustrative purposes Table 4 shows the higher capital ratios than it enjoyed in falls below the DRR, the FDIC is assessments that would have equated the 1980s. Finally, the BIF balance and required by law to increase assessments revenues to costs over certain periods in reserve ratio are much higher than they to regain the DRR within one year. the FDIC’s history. The analysis begins were during most of the 1980s, resulting However, if the drop is such that the at year-end 1949, after the FDIC had in higher levels of investment income DRR cannot be attained after a year of retired its initial Treasury capital that will reduce the effective assessment increased assessments, the FDIC is contribution. From 1950 through 1980, rate needed to balance revenues and mandated to impose assessments a period of relative stability in banking expenses. equivalent to a minimum average compared to more recent times, an The net result of these changed weighted rate of 23 basis points which assessment rate of roughly 4.5 basis conditions is that a purely historical would be in effect until the DRR is points would have balanced costs and analysis of long-term expected costs attained—potentially for up to 15 years. revenues over the period. From 1980 should be substantially tempered by a While the requirement to charge an through 1994 the required assessment judgment about the effect of these average rate of at least 23 basis points rate would have been roughly 13 basis changes on expected losses. Since we is less onerous for the industry and the points, and for the entire 1950–1994 have not had a significant episode of insurance fund than a strict pay-as-you- period the required rate would have bank failures since the imposition of go rule, it may be cause for concern. been seven basis points. Under all these these changes, there is little empirical Although BIF institutions absorbed the scenarios the reserve ratio of the fund basis for speculation about the increase in effective annual assessment would have fluctuated considerably and magnitude of cost reductions likely to rates to 23 basis points as of 1992 with would have been ‘‘maintained’’ in a occur. Nevertheless, it is the judgment no known direct casualties, it is notable long-run average sense. of the Board that an effective assessment that a strong recovery was emerging in The FDIC’s historical loss experience rate for the banking industry at the the banking industry at the same time, thus suggests that an effective lower end of the 4.5 to 13 basis-point assessment in the range of 4.5 basis in part because of a more favorable range suggested by historical experience points to 13 basis points would be interest rate environment. It is is likely to cover expected losses to the expected to balance revenues and questionable whether such increases BIF over a reasonable time horizon. The expenses over a relatively long period of could have been absorbed without a Board expects that this judgment will be time. There are several factors that cause discernable adverse impact during a revisited on a semiannual basis in light the Board to adopt an effective average downturn or at the trough of a banking of changing conditions. assessment rate at the low end of the cycle such as 1988–89. (f) Rate Setting—Planning for range suggested by historical A strict pay-as-you-go approach Volatility in Insured Deposits. The FDIC experience. sets assessment rates to be effective for results in substantial adverse effects on Recent developments suggest that the a subsequent six-month period. An industry earnings and capital at the time FDIC’s expected cost resulting from a element of uncertainty about the reserve the industry can least afford additional given level of banking risk may be costs. It ignores the real risks that exist smaller now than it was in the 1980s. ratio that will result from a given rate in banking beyond a six-month time Prompt corrective action has schedule arises from the possibility for horizon and, thus, appears to conflict strengthened the regulators’ hands in insured deposits to grow or shrink over with the Board’s duty to consider fully closing nonviable institutions promptly. the six-month period at rates different the probability and likely amount of The least-cost resolution process than originally expected. insurance losses and case resolution mandated by FDICIA has reduced the Figures 21 and 22 provide some expenditures. Further, because such an number of instances where the FDIC is perspective on this issue. Figure 21 approach would likely be abandoned permitted to protect uninsured displays the frequency of various during times of banking difficulties, it is depositors in bank failures. The percentage changes in insured deposits likely to result in periodic episodes nationwide depositor preference statute at commercial banks occurring during where the fund falls below its DRR and has placed the FDIC and the depositors six-month intervals, quarterly from 1984 the FDIC is operating in ahead of all nondeposit creditors in through the first quarter of 1995. The ‘‘recapitalization mode,’’ or in even receiverships of failing banks, although impacts of these percentage changes on more severe straits.29 For these reasons, it remains to be seen whether, as the the BIF reserve ratio, applied to an the Board regards the pay-as-you-go markets gain more experience with assumed BIF ratio of 1.25 percent of approach as seriously flawed. depositor preference, bank liabilities BIF-insured deposits as of the first will shift as a bank approaches failure quarter of 1995, are displayed in Figure 22. 29 For example, in 1991 the BIF reserve ratio in ways that would reduce the FDIC’s reached a negative 0.36 percent of insured deposits. cost savings. Sectoral price inflation and BILLING CODE 6714±01±P 42732 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42733 BILLING CODE 6714±01±C 42734 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations The 1984–1985 period described in were expected to end the subsequent timeframe in setting assessment rates. Figures 21 and 22 can be divided into six-month period at the DRR, based on The probability and likely amount of two subperiods. From 1984 to mid-1991, a modest expected growth in insured losses and case resolution expenses are there was healthy, sustained growth in deposits, then actual growth in insured determined by risk factors that operate insured deposits. Since mid- to late deposits could deviate sufficiently from over a far longer horizon than six 1991, however, insured deposits have expected growth that the FDIC could months. Accordingly, the Board’s duty for all intents and purposes not grown end the assessment period with a to assess risk-based assessments in at all. It is uncertain how much the reserve ratio of considerably less than accordance with these statutory factors dramatic reduction in assessments the DRR. This attests to the difficulty of require it to price the risk of adverse resulting from the new rate schedule in precisely managing the reserve ratio and events that may occur beyond the the final rule will stimulate growth in suggests maintenance of the DRR may immediate horizon. BIF-insured deposits. require the FDIC to allow for the Projected income and expense for the The experience of the 1984–1995 possibility of unexpected changes in second half of 1995 are presented in period indicates that changes in insured insured deposits. Table 5. Total income from assessments deposits can subject the BIF reserve and investments of about $1.1 billion is 2. Summary of Application of Statutory expected to exceed total insurance ratio to considerable variation relative to Factors the DRR. For example, during three six- losses and operating expenses in the month periods since 1984, insured (a) Financial Factors: Probability and range of $302 million to $352 million. deposits increased at rates that if Likely Amount of Insurance Losses; The BIF reserve ratio is expected to be applied today, would reduce the BIF Case Resolution Expenditures and between 1.27 percent and 1.31 percent reserve ratio by more than eight basis Income; Operating Expenses; Revenue at June 30, 1995, depending on the points, to less than 1.17 percent, other Needs of the Fund. As discussed in timing of the proposed refund of things constant. Section IV.B.1 above, the Board believes overpayments and the growth in insured The import of these facts is that if the that its insurance responsibilities deposits during the second quarter. FDIC set assessment rates so that the BIF require it to look beyond the immediate BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42735 BILLING CODE 6714±01±C The BIF reserve ratio as of December of factors, none of which can be 31, 1995, will be dependent on a variety predicted with certainty at this time. 42736 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations The Board considered a range of the probability and likely amount of growth in BIF insured deposits of six assumptions about these factors in an losses and caused the Board to adopt an percent over the last three quarters of effort to estimate the BIF reserve ratio at effective assessment rate at the low end 1995, in conjunction with insurance year-end 1995 that would result from of the historically suggested range. losses and additions to reserves of $600 the new rate schedule. Insurance losses Another factor driving the selection of million during the second half of 1995, and increases in the reserve for future an assessment rate at the low end of the would result in the BIF falling short of failures during the second half of 1995 historical range was the investment the DRR at year-end. The new rate were assumed to range from a negative income deriving from the current BIF schedule provides a level of comfort $200 million to a positive $600 million. balance. The investment income of the that unanticipated changes in insured This range reflects the possibility that BIF will be substantially higher than it deposits will not cause the BIF to fall institutions for which the FDIC has was during most of the last ten years. below the DRR. established a loss reserve would recover This reduces the need for assessment (b) Impact on Earnings and Capital. In during the second half of 1995 or, income to meet the revenue needs of the deciding against adopting a strict pay- alternatively, that currently unidentified insurance fund. It is anticipated that the as-you-go policy for setting assessments, institutions would develop problems Board will revisit this issue on a the Board considered the adverse effects during this period that would require semiannual basis by considering further on banking industry earning and capital the FDIC to establish a loss reserve. The adjustments in assessment rates if the of such a policy. As discussed in range of variability considered for this BIF continues to grow in light of the subsection (e), such a policy has the factor is modest relative to the Board’s obligation to maintain the BIF at undesirable effect of sharply increasing variations in the reserves that have the target DRR. the assessment costs of insured occurred in recent years. BIF-insured The second general factor governing institutions at a time when they can deposits are assumed to grow at an the selection of the rates adopted by the least afford such increases. Subsection annualized rate of between zero and six Board is the need to allow for the (e) describes how a pay-as-you-go policy percent during the last three quarters of possibility of unanticipated changes in applied during the 1980s would have 1995. While six percent growth appears insured deposits or loss reserves that had a severe adverse impact on the unlikely at this time, it is not outside may occur during a semiannual period. earnings and capital of the banking the range of historical experience, as The BIF ratios projected to occur at industry during the years 1988–1991. indicated in Figure 21. Under these midyear and year-end 1995, The Board considered the near-term assumptions, the BIF reserve ratio respectively, are projections based on a impact of adopting the 4 to 31 basis would be between 1.24 percent and 1.36 reasonable range of estimates of the point rate matrix. Because assessment percent at year-end 1995. growth in BIF insured deposits during rates for most BIF members will decline The rule adopted by the Board thus is 1995. It must be emphasized that the under the new assessment schedule, the expected to result in an excess of level of BIF-insured deposits for neither impact on earnings and capital will be revenue over expense for the second date are known at this time. As positive. Lower assessment costs will half of 1995. The Board based this discussed in subsection (f) above, based reduce expenses by approximately $4.4 decision on two general factors. First is on the historical variability in billion per year. Based on the industry’s the requirement to set assessment rates semiannual changes in insured deposits, year-end 1994 average tax rate of 33 to account for the probability and likely it is conceivable that the BIF ratio might percent, after-tax profits will increase by amount of insurance losses. As just not reach the DRR at year-end even approximately $3 billion per year. BIF discussed, this requires the Board to under the new rate schedule. As members may pass some portion of the consider the possibility of adverse indicated in Figure 22, it is within the cost savings on to their customers events that may not occur during the range of the historical experience of the through lower borrowing rates, lower immediate timeframe. The FDIC’s past 10 years that insured deposits can service fees, and higher deposit rates. experience during two very different change by enough in a six-month period Their ability to do so will be affected by times—the relatively stable period from to move the BIF reserve ratio by as factors such as the level of competition 1950 to 1980, and the more volatile much as eight basis points. faced by banks. As discussed in Section post-1980 period—suggests that an Similarly, in evaluating the III above, the potential adverse effect on assessment in the range of 4 to 13 basis probability and likely amount of weaker institutions resulting from the points would, on average, meet the insurance losses, the Board considered decreased assessment rate paid by their revenue needs of the fund over a long the uncertainty inherent in predicting competitors is likely to be minimal in period of time in light of the probability the level of the FDIC’s reserve for future terms of the number of additional and amount of losses, case resolution failures. This reserve is determined failures. expenditures, income, and operating using a methodology agreed to by the (c) Other Factors the Board Deems expenses that have characterized the U.S. General Accounting Office and is Appropriate. When setting assessment FDIC’s past experience. intended to estimate the cost of failures rates to maintain the reserve ratio at the The Board has considered other that can reasonably be anticipated over DRR, section 7(b)(2)(A)(ii) authorizes factors governing the probability and a subsequent 18-month period. The the Board to consider ‘‘any other factors likely amount of losses and case provision for insurance losses has that the Board of Directors may deem resolution expenditures that are likely displayed considerable volatility in appropriate’’. The statute does not limit to occur in future years. As discussed in recent years, ranging from a $15.4 the discretion of the Board to determine more detail in Section IV.B.1(e), these billion addition to the reserve in 1991 those factors which are appropriate to include recent statutory changes to a $7.7 billion reduction in the reserve consider in the rate-setting process. (prompt corrective action, least-cost in 1993. Although the statute specifically lists resolution and depositor preference), The net effect of variability in insured other criteria, such as case resolution the currently reduced likelihood of deposits and losses, and additions to the expenditures, which must be included problems arising from sectoral inflations loss reserve, can be of considerable in its determination, the Board is free to and subsequent deflations, and the high practical import in light of the Board’s take into account economic and other capital ratios generally prevailing in duty to maintain the DRR. For example, data which it deems relevant. banking. These factors tend to reduce as indicated in Table 5, an annualized Accordingly, the Board has incorporated Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42737 into its balancing process a review of account the impact on SAIF because The historical analysis presented variables particular to the financial that impact could not be quantified. above suggests that an effective average services industry such as interest and The Board continues to believe that assessment rate in the range of 4.5 to 13 exchange rate volatility and nonbank setting BIF rates higher than otherwise basis points would be expected to meet competition as well as projections for would be warranted would likely cause the revenue needs of the fund over the the economy in general. an increase in the BIF reserve ratio very long term. The factors outlined The proposal reviewed the propriety above in the DRR in violation of the above have convinced the Board that the of including under this factor statute. Accordingly, the Board is lower end of the assessment range is consideration of the competitive adopting the interpretation of ‘‘other reflective of the risks currently facing disparity arising from the differential in factors’’ as proposed. the BIF and, moreover, takes adequate assessments for members of the BIF and account of the variability in insured SAIF. The Board is adopting without 3. Conclusions deposits, losses, and additions to the change the interpretation of ‘‘other The principal conclusion of the reserve for future failures that may affect factors’’ which was set forth in the foregoing analysis is that the exercise of the adequacy of the BIF relative to the proposal. the FDIC’s insurance responsibilities DRR over the second half of 1995. The The proposal discussed the interplay require it to look beyond the immediate Board is, accordingly, adopting the 4 to of the ‘‘other factors’’ provision with period in pricing risk. A pure pay-as- 31 basis point rate matrix as originally section 7(b)(2)(B), which requires the you-go pricing system can expose the proposed. Board to set semiannual assessments for banking industry to unduly high and In adopting the 4 to 31 basis point rate members of each fund ‘‘independently’’ volatile insurance assessments that can schedule, the Board emphasizes its from semiannual assessments for adversely affect the soundness of the expectation that the rate-setting process members of the other insurance fund. banking system and the BIF. Moreover, going forward will evolve continuously. Read together, these provisions do not the FDIC’s experience with bank failures For example, even assuming no change specifically prohibit Board makes it clear that a meaningful in the FDIC’s risk exposure to potential consideration of the impact of BIF rates evaluation of the risk associated with bank failures, the attempt to balance on SAIF members as long as the rates even highly rated and well-capitalized revenues and costs over a longer are set independently. However, the institutions must look beyond a six- horizon is consistent with semiannual proposal indicated the potential conflict month period. Accordingly, the Board adjustments to reflect changes in the with section 7(b)(2)(A)(i) which requires will undertake to look beyond the fund balance. Increases in the BIF the Board to set rates to maintain the immediate period in determining the balance, due either to shocks or to BIF reserve ratio. If the Board were to revenue needs of the BIF. favorable industry conditions that take into consideration the impact on persist beyond the period that could be The second principal conclusion is the SAIF when it set BIF rates (i.e., expected, would increase investment that the Board’s duty to maintain the setting BIF rates higher than otherwise income and make it less likely that the DRR as a target requires it to take necessary to minimize the disparity fund would fall short of the DRR over between BIF and SAIF rates), and, as a account of the substantial variability of any given future horizon, other things result, the reserve ratio continued to a number of factors influencing the equal. In response to this, and increase in excess of the DRR, it might revenue needs of the fund. Insured depending upon other relevant factors, be considered a violation of the statute. deposits display enough variability to the Board may deem it appropriate in Although a total of 591 commenters cause the BIF reserve ratio to fluctuate subsequent semiannual periods to indicated that the Board should not take considerably relative to the DRR. reduce assessments below the level that into account the impact on the SAIF and Insurance losses are extremely difficult previously had been expected to be its members when setting the rates for to predict, and the FDIC’s policy of necessary to meet the revenue needs of BIF members, few of those comments establishing loss reserves for failures the funds. provided any legal analysis. Those that expected to occur as much as 18 months did, (including the ABA, ABA State in the future magnifies the problem of V. Application and Adjustment of New Association Division, IBAA, Citicorp, prediction. This is because the Assessment Schedule New York Clearing House, the prediction of the BIF’s income in the The Board is adopting the proposal to California Bankers Association, second half of 1995 necessarily must apply the new assessment rate schedule GreenPoint Bank and Bank of Boston) allow for the possibility of changes in in the semiannual period during which concurred with the analysis set forth in the reserve for future failures that may the DRR is achieved, with refunds of the proposal. A number of these not occur until year-end, for failures any overpayments from the first day of commenters indicated that ‘‘other’’ anticipated to occur through mid-1997. the month following the month in factors should be interpreted only to In light of the imprecision inherent in which the DRR is achieved. Under the encompass factors that relate to the the measurement of banking risk— final rule, overpayments will be condition of the BIF. whether through examination ratings, refunded with interest at a rate that By contrast, the Savings Association capital measures or models used to corresponds to the rate of interest Insurance Fund Industry Advisory project bank failures—the Board does earned by the FDIC on the Committee (SAIFIAC) indicated that the not intend to specify a time period over overpayments. FDIC ‘‘has an equal duty and which the FDIC will attempt to estimate In addition, the Board is adopting, responsibility to each Fund * ** its expenses for the purpose of setting with two clarifications, the proposed [which] dictates that any proposal to assessment rates. Instead, rate-setting process for modifying the new lower BIF rates must be coupled will be undertaken as an evolving assessment rate schedule by means of an formally with both a regulatory process in which historical analysis adjustment factor of 5 basis points, as determination that the SAIF PROBLEM tempered by informed judgment about necessary to maintain the reserve ratio MUST BE DEALT WITH, and a proposal current conditions, including the at 1.25 percent without the necessity of for a solution.’’ (Emphasis in original.) investment income deriving from the engaging in separate notice-and- SAIFIAC further indicated its belief that balance in the BIF, is revisited on a comment rulemaking proceedings for the proposal declined to take into semiannual basis. each adjustment. 42738 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations A. Semiannual Period During Which disapproved of the proposed process, the month after the month in which the DRR Is Achieved believing rates should be dropped more DRR was achieved, it is likely to be In the proposal, the Board interpreted quickly. determined that many BIF members the language and legislative history of Numerous commenters urged that the have overpaid their assessments. For section 7(b)(2)(E) of the FDI Act—that is, determination be made as quickly as example, if the DRR is determined to the requirement to assess a minimum possible. For example, the IBAA urged have been achieved on May 31 and the average rate of 23 basis points—as the FDIC to ‘‘make the necessary new assessment schedule becomes prohibiting the Board from decreasing determinations as soon as humanly retroactively effective on June 1, it is the assessment rates paid by BIF possible so that banks will enjoy the likely that all institutions except those members until after the FDIC is able to benefits of premium reduction as early paying the highest rates will have confirm that the reserve ratio has, in as possible.’’ The ABA urged the FDIC overpaid their assessment for the first fact, reached the DRR, regardless of to reduce assessments in the third semiannual period of 1995. Similarly, projections for BIF recapitalization. If quarter ‘‘if the weight of the evidence most institutions will have overpaid the Board were to decrease the rates shows that the BIF will have reached their assessments paid on June 30, 1995, based on projections for BIF the DRR before June 30.’’ The ABA’s for the July-September quarter of the recapitalization, the reserve ratio would position is that waiting for confirmation second semiannual period. ‘‘remain’’ below the DRR at the time of of data from the June 30 call reports In such instances, the FDIC will the Board’s action and the minimum- would merely unnecessarily complicate refund the overpayment with interest assessments provision of section the whole process of changing rates.31 from the effective date of the new 7(b)(2)(E) would continue to apply. The FDIC has carefully considered the assessment rate schedule, in the case of Accordingly, the Board proposed to comments addressing these issues. overpayments for the first semiannual decrease assessment rates once the FDIC However, the Board continues to period, and from the payment date, in has been able, based on a review of the believe, given the statutory language of the case of overpayments for the second relevant quarterly reports of condition section 7(b)(2)(E) and the relevant semiannual period. The FDIC (call reports) necessary to determine the legislative history, that the FDIC does anticipates that it will provide such amount of estimated insured deposits,30 not have authority to lower assessment refunds electronically by means of that the DRR has in fact been achieved. rates until it is certain that the DRR has credits sent through the Automated The rate reduction would be effective on been attained. Accordingly, as Clearing House (ACH) system, but may the first day of the month following the proposed, the Board has decided not to do so by check or in more than one month in which the DRR is attained. apply the new rate schedule until the payment. In the case of electronic The Board further proposed to refund, first day of the month after the month refunds, it is anticipated that the same with interest from the date the new rates in which the DRR has actually been routing transit numbers and accounts take effect, any overpayments of reached. In the event it is determined used for direct-debit assessments assessments under the new rate that the DRR has been reached before collection will be used for the electronic schedule resulting from the delay in the September 30 assessment payment credits. Under the proposal, the interest rate confirming attainment of the DRR. date, as is expected, the Board will Of the 356 commenters addressing promptly notify BIF members that the to be paid by the FDIC on overpayments these elements of the proposal, 343 amount of the September 30 payment resulting from a change in the BIF rate schedule would have been the rate expressed support for the process of will be adjusted to reflect the new rate normally applicable to assessment over- implementing the new rates and schedule. In order to avoid any or underpayments in general. However, refunding overpayments. Of these, 286 additional overpayment or confusion, under the unique circumstances respondents expressly mentioned the final rule provides that the FDIC applicable here, the Board has decided support for refunding the assessments also may delay collection of the to pay an interest rate that corresponds with interest from the date the new rates assessments that would otherwise be to the rate actually earned by the FDIC become effective. due on September 30 (or such later on the overpayments. Because the FDIC One commenter thought that, for payment date that next follows the knew that it was highly likely that the overpayments in the first semiannual effective date of the new rate schedule). June 30 collection of assessments at the assessment period of 1995, interest If this occurs, it is very likely that the existing rates would result in significant should be paid from the date the FDIC FDIC would also delay for a brief period overpayments for all but the riskiest received the assessment in January, the date of the associated invoice, which institutions, the Board believes that it is rather than from the date the new rates is provided one month prior to the fair and appropriate to pay an interest take effect. Eight commenters collection date (for example, the invoice rate that returns to the overpaying date for a September 30 collection date institutions the amount of interest 30 The reserve ratio is the dollar amount of the BIF is August 30). actually earned by the FDIC on their fund balance divided by the estimated insured Because the new assessment rate overpayments. Accordingly, the final deposits of BIF members. Although data for the schedule will apply from the first day of fund balance is accounted for on a monthly basis, rule incorporates a special interest rate the amount of estimated insured deposits is based that is the arithmetic average of the on data from the quarterly reports of condition (call 31 The ABA reiterated this view in a May 19, reports). Because it appears that the BIF 1995, meeting with FDIC staff members, which the overnight simple interest rate received recapitalized in the second quarter, the amount of ABA had requested to discuss the proposal. At the by the FDIC on its U.S. Treasury estimated insured deposits would be determined by meeting, the ABA urged that the FDIC quickly act investments during the relevant period the information on the June call reports which are to reduce BIF rates to a level no higher than that (including weekends and holidays at the due on July 30 (or for some institutions, August 14). necessary to bring the BIF to its DRR. FDIC staff Due to the customary time lag involved in verifying stated the Board’s position reflected in the proposal rate for the previous business day). For the information from the call reports, it is probable that the FDIC is precluded from reducing rates until example, had the relevant period been that the determination that the DRR has been it has been able to determine that the DRR has in June 1995, the applicable rate would achieved will not be made until mid-September. fact been reached. A summary of the ABA meeting have been 6 percent. Moreover, because the fund balance is determined is included in the public comment file on the only on a monthly, rather than a daily basis, the proposal, along with other oral and written The FDIC recognizes that, once the date on which the Board ascertains that the DRR comments submitted by the ABA and other new assessment rate schedule becomes has been attained is the last day of the month. respondents. effective, insured institutions may have Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42739 questions regarding the application of percent (taking into account operating effect on BIF members. For example, the the new rate schedule and the expenses and expected losses and the IBAA opposed the use of the proposed mechanics of the refund process, statutory mandate for the risk-based adjustment process for increases but not including how and when refunds will assessment system) and (2) the for decreases in the assessment schedule be made. Accordingly, the FDIC will be particular risk-based assessment because of the lack of opportunity to providing additional, more specific schedule that would generate that comment on assumptions made by the information regarding these matters to amount considering the risk FDIC concerning expected expenses, insured institutions. composition of the industry at the time. loss rates, investment income, and other The Board proposed to adjust the factors. The IBAA indicated that this is B. Semiannual Periods after the DRR is assessment rate schedule every six particularly important in a case where Achieved: the Adjustment Factor months by the amount, up to and the FDIC would raise the schedule by As to the semiannual assessment including the maximum aggregate the full amount of the adjustment factor periods after the DRR is achieved and adjustment factor of 5 basis points, (5 basis points) which would represent the new rate schedule has become necessary to maintain the reserve ratio more than double the proposed 4 basis- effective, the Board is adopting the at the DRR. Such adjustments would be point rate for institutions in the 1A risk proposed adjustment factor, with two adopted in a Board resolution that classification. Chemical Bank opposed clarifications. reflects consideration of the following both the process and the size of the Under the proposal, the new statutory factors: (1) Expected operating adjustment factor for both increases and assessment rate schedule, once expenses; (2) projected losses; (3) the decreases in the rate, noting that an activated, would continue to apply to effect on BIF members’ earnings and increase of 5 basis points would succeeding semiannual periods, with capital; and (4) any other factors the represent more than a doubling of the modification as necessary in future Board determined to be relevant. rate for most banks. The Bankers periods to maintain the reserve ratio at The Board resolution would be Roundtable also expressed concerns the target DRR by means of an adopted and announced at least 45 days with permitting the FDIC to raise adjustment factor of up to and including prior to the date the invoice is provided assessments without notice and an aggregate of plus-or-minus 5 basis for the first quarter of the semiannual comment where an increase could points or fraction thereof. The proposal period for which the adjusted rate significantly increase costs to the banks. limited to this 5 basis-point range the schedule would take effect. Thus, the To provide the FDIC with some amount by which the Board could rate schedule applicable to the flexibility, it proposed an alternative adjust the assessment rate schedule November 30 invoice would be process whereby the use of the without engaging in a notice-and- announced no later than October 16 and adjustment factor at the FDIC’s sole comment rulemaking proceeding. Such the schedule applicable to the May 30 discretion would be limited to 2 basis- adjustments would be applied to each invoice would be announced by April point changes; changes above 2 basis cell in the rate schedule uniformly; they 15. If the amount of the adjustment points but less than 5 basis points could could not be applied only to selected under consideration by the FDIC would be imposed after an abbreviated risk classifications. For example, if the result in an adjusted schedule exceeding comment period (two-three weeks); Board were to adjust the rate schedule the 5 basis-point maximum, then the changes above 5 basis points would go by a reduction of 2 basis points, then the Board would initiate a notice-and- through the normal comment period. assessment rate applicable to each comment rulemaking proceeding to be Banc One Corporation opposed the assessment risk classification would be completed prior to the invoice date. proposed adjustment process based on reduced by 2 basis points (from, say, 4 A total of 75 commenters addressed the erroneous belief that it would permit to 2 basis points, 7 to 5 basis points, 14 the issues of the proposed process to the Board to raise the assessment to 12 basis points, and so on). Thus, the adjust the rates and the amount of the schedule by as much as 9 basis points differences between the respective cells adjustment factor. Of the 61 comments from one semiannual period to another in the rate schedule would remain in support of the process (including 8 without the opportunity for notice and unchanged. Similarly, such adjustments trade associations and 47 BIF members), comment. Instead, Banc One favored would neither expand nor contract the 41 indicated that the size of the limiting the adjustment factor to an 27-basis point spread between the adjustment factor (5 basis points) was increase or decrease of 1 basis point lowest- and highest-risk classifications. appropriate. The ABA (as well as the only. The New York Clearing House The 5 basis-point maximum would ABA State Association Division) opposed the adjustment process, noting limit the extent to which the rate supported the process only so long as that an increase of 5 basis points would schedule could be adjusted over time the purpose of the adjustment was to represent a 125 percent increase for without triggering a new notice-and- maintain the reserve ratio at the DRR. A banks with risk classification 1A. comment rulemaking proceeding. Thus, number of commenters, including However, the Clearing House also for example, if the rate for 1A banks Signet Banking Corporation and Wells misunderstood the proposed process, were 4 basis points, no matter how Fargo Bank, supported the proposed believing that the schedule could be many times the assessment schedule adjustment process but noted that it increased sharply ‘‘in only a few years were adjusted up or down, the rate for should be used both for rate increases without ever seeking public comment’’. 1A banks could not be increased over and decreases. (The proposal intended The Board has decided to adopt the time to a rate higher than 9 basis points that the adjustment process would be proposed rate-adjustment process, with without a new notice-and-comment used both for increases and decreases.) two clarifications. First, given the rulemaking proceeding. The same NationsBank also supported the apparent confusion regarding the limitations would apply to rate proposal but indicated any adjustments maximum extent to which the rate reductions. should be made not more frequently schedule could be adjusted without Under the proposal, the adjustment than annually. triggering a new rulemaking proceeding, factor for any particular semiannual Other commenters expressed concern § 327.9(b)(1) of the final rule clarifies period would be determined by (1) the about the lack of opportunity for that the maximum adjustment level of amount of assessment income necessary comment, particularly where an plus-or-minus 5 basis points is intended to maintain the reserve ratio at 1.25 increase in rates could have a significant to apply as an aggregate amount, over 42740 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations time, taking into account both increases economic environment, the former VI. Technical Amendments and decreases, but that no one could be more common than the latter. In addition to the amendments adjustment may constitute an increase Moreover, the Board’s discretion in discussed above, the Board is further or decrease of more than five basis applying the adjustment factor is not amending the assessments regulation to points. This clarification reflects the unfettered. The maximum amount of the delete the BIF Recapitalization Schedule Board’s intent to seek public comment adjustments is limited to an increase or currently set forth in 12 CFR 327.9(d). on, for example, a proposed increase of decrease of 5 basis points, either at any Because the DRR has already been or 3 basis points for a semiannual period one time or over time, and in adopting soon will be reached, this schedule is no following an earlier period for which an adjustment the Board must satisfy longer needed. Moreover, the schedule, the Board, by resolution, adjusted the the criteria enumerated in § 327.9(b) of which calls for BIF to reach the DRR in rate schedule upward by 3 basis points, the final rule, which reflect the statutory 2002, is now obsolete. or a proposed decrease of 6 basis points rate-setting factors referred to above. In addition, the final rule substitutes after a previous increase of three basis Moreover, as with any of its decisions, the term ‘‘institution’’ for the outdated points, but not to seek public comment the Board may act only after due term ‘‘bank’’ in § 327.9(a). on an increase of 5 basis points deliberation and in a reasonable following an intervening decrease of 2 manner. As previously indicated, the VII. Paperwork Reduction Act 32 basis points. Similarly, language also basis for any adjustment adopted by the No collections of information has been added to this paragraph to Board will be made public promptly pursuant to section 3504(h) of the expressly state the Board’s intent, as after the Board’s decision. Paperwork Reduction Act (44 U.S.C. indicated in the proposal, that any Furthermore, while the Board 3501 et seq.) are contained in this adjustment apply uniformly to each rate appreciates these concerns, it also notice. Consequently, no information in the schedule. recognizes that frequent rate has been submitted to the Office of Second, the final rule also expressly adjustments may be necessary to Management and Budget for review. reflects the FDIC’s intent promptly to maintain the reserve ratio at the DRR, make public the basis for any Board and is mindful of the costs involved— VIII. Regulatory Flexibility Act decision to adjust the rate schedule. both to the industry and the FDIC—of The Regulatory Flexibility Act (5 Under § 327.9(b)(2) of the final rule, engaging in a formal rulemaking U.S.C. 601 et seq.) does not apply to a with this clarification, the Board will proceeding each and every time even a rule of particular applicability relating announce the semiannual assessment minor adjustment in the assessment rate to rates, wages, corporate or financial schedule for the next semiannual schedule is needed. The Board structures or reorganizations thereof. Id. period, with the amount and basis for believes—as do 61 of the 75 commenters at 601(2). Accordingly, the statute does any adjustment from the then-existing addressing this issue—that an not apply to the proposed changes in schedule, no later than 45 days before acceptable balance of the competing the assessment rate schedule, the the invoice date for the first quarter of concerns is achieved by the approach structure of that schedule and future that next semiannual period (that is, by taken in the final rule. adjustments thereto. In any event, to the October 16 or April 15, as applicable). The Board fully understands concerns The Board has noted the suggestion extent an institution’s assessment is regarding the possibility of assessment made by the Bankers Roundtable that based on the amount of its domestic rate increases without the benefit of full the final rule include a modified deposits, the primary purpose of the notice-and-comment rulemaking. adjustment procedure under which Regulatory Flexibility Act, that agencies’ However, the Board notes that the adjustments of between 2 and 5 basis rules do not impose disproportionate adjustment applies to decreases as well points be subject to an abbreviated burdens on small businesses, is as to increases and that, in the current notice-and-comment period of 2 to 3 fulfilled. weeks. However, the Board is concerned IX. Riegle Community Development 32 that such a short period would not The following hypothetical examples illustrate and Regulatory Improvement Act of this concept. Example 1. (a) On April 15, 1996, the allow sufficient time for interested 1994 Board adjusts the assessment rate schedule upward parties both to become aware of a by 3 basis points to 7-to-34 basis points. Notice-and- proposed adjustment and still file Section 302(b) of the Riegle comment rulemaking is not required because the increase does not exceed the 5 basis-point timely comments. In addition, an Community Development and adjustment maximum. (b) On October 16, 1996, the abbreviated comment period involves Regulatory Improvement Act of 1994, Board again increases the adjusted schedule by 3 the same costs as a non-abbreviated Public Law 103–325, 108 Stat. 2160 basis points, to 10-to-37 basis points. Such action (1994), requires that, in general, new requires notice-and-comment rulemaking because it period, both to interested parties and to would result in an aggregate increase of more than the FDIC. and amended regulations that impose 5 basis points. Example 2. (a) On April 15, 1996, The adjustment factor is expected to additional reporting, disclosure, or other the Board increases the rate schedule by 3 basis provide the Board with the flexibility to new requirements on insured depository points to 7-to-34 basis points. Notice and comment institutions shall take effect on the first rulemaking is not required. (b) On October 16, 1996, raise a maximum additional $1.2-$1.4 the Board decreases the previously-adjusted billion in the near term without day of a calendar quarter. This schedule by 2 basis points to 5-to-32 basis points. undertaking an additional rulemaking. restriction is inapplicable to the final Rulemaking is not required because the change, in The 5 basis-point maximum appears rule, which does not impose such the aggregate, does not result in an increase or decrease of more than 5 basis points. (The change, modest when viewed historically, as the additional or new requirements. in the aggregate, is a net increase of one basis loss-to-insured deposits ratio has been List of Subjects in 12 CFR Part 327 point.) (3) On April 15, 1997, the Board adjusts rate quite variable; the standard deviation schedule upward by 5 basis points. Such action was 8.5 basis points for the 1934–94 Assessments, Bank deposit insurance, requires notice-and-comment rulemaking because it Banks, banking, Financing Corporation, would result in an aggregate increase of more than period (Figure 8) and 11.9 basis points 5 basis points, taking into consideration the for 1980–94. In view of the currently Savings associations. previous adjustments. In addition, notice-and- favorable banking environment, For the reasons stated in the comment rulemaking would be required for any single step in either of these examples which by however, a 5 basis-point adjustment preamble, the Board is amending part itself, without aggregation, would constitute an factor should be sufficient to maintain 327 of title 12 of the Code of Federal increase or decrease of more than 5 basis points. the target DRR in the near term. Regulations as follows: Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42741 PART 327ÐASSESSMENTS (b) Rate adjustment; announcement— (2) Notwithstanding the provisions of (1) Semiannual adjustment. The Board § 327.7(a)(3), if, as a result of the new l. The authority citation for part 327 may increase or decrease Rate Schedule rate schedule having gone into effect, an continues to read as follows: 2 set forth in paragraph (a) of this institution has overpaid its assessment, Authority: 12 U.S.C. 1441, 1441b, 1817– section up to a maximum increase of 5 the Corporation shall provide interest 1819. basis points or a fraction thereof or a on any such overpayment, as follows: 2. Section 327.8 is amended by maximum decrease of 5 basis points or (i) For the first semiannual period of adding a new paragraph (i) to read as a fraction thereof (after aggregating 1995, beginning on the date the new rate follows: increases and decreases), as the Board schedule goes into effect; and deems necessary to maintain the reserve (ii) For the second semiannual period § 327.8 Definitions. ratio at the BIF designated reserve ratio. of 1995, beginning on the date of the * * * * * Any such adjustment shall apply overpayment; and (i) As used in § 327.9, the following uniformly to each rate in the schedule. (3) Notwithstanding the provisions of terms have the following meanings: In no case may such adjustments result § 327.7(b)(3), the interest rate applicable (1) Adjustment factor. The maximum in a negative assessment rate or in a rate to overpayments described in paragraph number of basis points by which the schedule that, over time, is more than 5 (c)(2) of this section shall be the Board may increase or decrease Rate basis points above or below Rate arithmetic average of the overnight Schedule 2 set forth in § 327.9(a). Schedule 2, nor may any one such simple interest rates received by the (2) Assessment schedule. The set of adjustment constitute an increase or Corporation on its U.S. Treasury rates based on the assessment risk decrease of more than 5 basis points. investments for the period during which classifications of § 327.4(a) with a The adjustment factor for any the Corporation held the overpayment difference of 27 basis points between semiannual period shall be determined amount. the minimum rate which applies to by: * * * * * institutions classified as 1A and the (i) The amount of assessment revenue By order of the Board of Directors. maximum rate which applies to necessary to maintain the reserve ratio Dated at Washington, DC, this 8th day of institutions classified as 3C. August 1995. 3. Section 327.9 is amended by at the designated reserve ratio; and revising paragraph (a), removing (ii) The assessment schedule that Federal Deposit Insurance Corporation. paragraph (b), redesignating paragraph would generate the amount of revenue Jerry L. Langley, (c) as paragraph (d), and adding new in paragraph (b)(1)(i) of this section Executive Secretary. paragraphs (b) and (c) to read as follows: considering the risk profile of BIF [FR Doc. 95–20170 Filed 8–15–95; 8:45 am] members. BILLING CODE 6714±01±P § 327.9 Assessment rate schedules. (2) In determining the amount of (a) BIF members. Subject to § 327.4(c), assessment revenue in paragraph the annual assessment rate for each BIF (b)(1)(i) of this section, the Board shall 12 CFR Part 327 member other than an institution take into consideration the following: RIN 3064±AB59 specified in § 327.31(a) shall be the rate (i) Expected operating expenses; in the following Rate Schedules (ii) Case resolution expenditures and Assessments; Retention of Existent applicable to the assessment risk income; Assessment Rate Schedule for SAIF- classification assigned by the (iii) The effect of assessments on BIF Member Institutions Corporation under § 327.4(a) to that BIF members’ earnings and capital; and member. Until the BIF designated (iv) Any other factors the Board may AGENCY: Federal Deposit Insurance reserve ratio of 1.25 percent is achieved, deem appropriate. Corporation (FDIC). the rates set forth in Rate Schedule 1 (3) Announcement. The Board shall: ACTION: Final rule. shall apply. After the BIF designated (i) Adopt the semiannual assessment reserve ratio is achieved, the rates set schedule and any adjustment thereto by SUMMARY: This final rule retains the forth in Rate Schedule 2 shall apply. means of a resolution reflecting existing assessment rate schedule The schedules utilize the group and consideration of the factors specified in applicable to members of the Savings subgroup designations specified in paragraph (c)(2)(i) through (iv) of this Association Insurance Fund (SAIF). The § 327.4(a): section; and effect of this final rule is that the SAIF (ii) Announce the semiannual assessment rates to be paid by RATE SCHEDULE 1 assessment schedule and the amount depository institutions whose deposits and basis for any adjustment thereto not are subject to assessment by the SAIF Supervisory subgroup later than 45 days before the invoice will continue to range from 23 cents per Capital group $100 of assessable deposits to 31 cents ABC date specified in § 327.3(c) for the first quarter of the semiannual period for per $100 of assessable deposits, depending on risk classification. 1 ...... 23 26 29 which the adjusted assessment schedule 2 ...... 26 29 30 shall be effective. EFFECTIVE DATE: This final rule becomes 3 ...... 29 30 31 (c) Special provisions. The following effective September 15, 1995. provisions apply only with respect to FOR FURTHER INFORMATION CONTACT: James R. McFadyen, Senior Financial RATE SCHEDULE 2 the first time the BIF designated reserve ratio is achieved after 1994: Analyst, Division of Research and Supervisory subgroup (1) Notwithstanding the provisions of Statistics, (202) 898–7027, or Valerie Capital group § 327.3(c)(2) or § 327.3(d)(2), the Jean Best, Counsel, Legal Division, (202) ABC Corporation may modify the time of the 898–3812, Federal Deposit Insurance direct debit of the assessment payment Corporation, Washington, D.C. 20429. 1 ...... 4 7 21 which next occurs after the Board SUPPLEMENTARY INFORMATION: The Board 2 ...... 7 14 28 3 ...... 14 28 31 determines that the designated reserve of Directors of the FDIC (Board) is ratio has been achieved; retaining the existing assessment rate 42742 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations schedule applicable to members of the while retaining the 23–31 basis point II. Description of Final Rule SAIF. The order of discussion under assessment schedule for members of the After considering the comments this caption is as follows. The proposed SAIF. Every person or organization that received in response to the proposed rule to retain the existing assessment requested an opportunity to testify was rule and other relevant information, the rate schedule for SAIF-member accommodated. Board has determined to retain the institutions is outlined in Section I. The A total of twenty witnesses were existing assessment rate schedule final rule adopted by the Board through heard by the full Board during the day- applicable to members of the SAIF. As this rulemaking procedure is described long hearing. They included the Savings a result of this action, the SAIF in Section II. The statutory provisions Association Insurance Fund Industry assessment rate to be paid by governing SAIF assessment rates are Advisory Committee, the American institutions whose deposits are subject summarized in Section III. Next, a Bankers Association, the Independent to assessment by the SAIF will continue detailed description of the problems Bankers Association of America, to range from 23 cents per $100 of confronting the SAIF is set forth in America’s Community Bankers, the assessable deposits to 31 cents per $100 Section IV. The comment letters National Association of Home Builders, of assessable deposits, depending on received in response to the proposed several bank or thrift associations, risk classification. rule are analyzed under the caption individual bank and thrift executives, Despite the general good health of the ‘‘Comment Summary’’, and the FDIC’s consumer organizations, a private sector thrift industry, the SAIF is not in good response to the comments is set forth attorney and an independent consultant. condition and its prospects are not under the caption ‘‘Adoption of Final The written testimony of each witness favorable. The issues confronting the Rule’’. as well as the hearing record were SAIF are discussed in detail under included in the FDIC’s public comment Background Section IV. To summarize, the SAIF is file on the two proposals. significantly undercapitalized. On I. Introduction; The SAIF Assessment- The public comment period for both March 31, 1995, the SAIF had a balance Rate Proposal proposals expired on April 17, 1995. of $2.2 billion, or about 31 cents in The Board received a combined total of The Board has the legal authority to reserves for every $100 in insured over 3,200 comment letters including deposits. An additional $6.6 billion reduce SAIF assessment rates to a testimony from the public hearing. After minimum average of 18 basis points would have been required on that date taking into account duplicate letters to fully capitalize the SAIF to its DRR until January 1, 1998. Beginning January submitted by the same commenter, 1, 1998, the minimum average rate must of 1.25 percent of estimated insured 2,891 comments were tabulated deposits. At the current pace, and under be 23 basis points until SAIF achieves representing 2,310 individual BIF its designated reserve ratio (DRR) of 1.25 reasonably optimistic assumptions, the member respondents, 454 individual SAIF would not reach the statutorily percent of estimated insured deposits. SAIF member respondents, 61 trade mandated DRR until at least the year Based upon the results of its semiannual associations and 66 other individuals/ 2002. Moreover, the SAIF became review of the capitalization of the SAIF organizations. Comments concerning responsible for resolving failed thrifts and of the SAIF assessment rates, the the BIF proposal are discussed in a on July 1, 1995. The failure of a single Board was inclined to retain the existing separate final rule governing BIF large SAIF-insured institution or several assessment rate schedule applicable to assessment rates published elsewhere in sizeable institutions or an economic SAIF-member institutions for the this Federal Register. second semiannual assessment period of As detailed in the Comment Summary downturn leading to higher than 1995 so that capitalization of the SAIF below, thrifts commenting on the SAIF anticipated losses could render the fund is accomplished as soon as possible. proposal uniformly asked that the insolvent. While the FDIC is not The FDIC wished to have the benefit impending disparity between premiums currently predicting such thrift failures, of public comment before ending its assessed against the banking industry they are possible. The main source of income for the review for the period, however. and the thrift industry be reduced or SAIF is assessments. A sizable portion Therefore, on February 16, 1995, the eliminated. A significant number of of the SAIF’s ongoing assessments is Board published a proposed rule to SAIF members stated, however, that a diverted to meet interest payments on retain the existing assessment rate reduction in SAIF assessment rates to obligations of the FICO. Reducing the schedule applicable to members of the the minimum authorized by current law minimum average rate to 18 basis points SAIF.1 The Board requested comment would not resolve the long-term is presently projected to delay SAIF on all aspects of the proposed rule. At challenges facing SAIF. They noted that, capitalization until 2005, and it would the same time, the Board published a among other things, draws on the SAIF cause a FICO shortfall as early as 1996. proposed rule to decrease the by the Financing Corporation (FICO) Moreover, there will still be a significant assessment rate schedule for members of would continue to undermine the SAIF. differential between BIF and SAIF the Bank Insurance Fund (BIF) to a Many of these commenters urged assessment rates even if the Board range of 4–31 basis points, depending legislative action, stating that ‘‘the reduces the SAIF assessments to the on risk classification, when the reserve Congress must act decisively to defuse minimum average allowed by statute. ratio of the BIF attains the minimum the coming crisis of the SAIF’’. The DRR of 1.25 percent of estimated legislative initiatives suggested by the III. Statutory Provisions Governing SAIF insured deposits.2 various commenters require Assessment Rates The Board held a hearing at FDIC Congressional action and were not part A. Section 7 of the Federal Deposit headquarters in Washington, D.C. on of the assessment-rate proposals. Insurance Act March, 17, 1995 to provide opportunity Nonetheless, these initiatives are for interested parties to express orally included in the Comment Summary in Section 7(b) of the Federal Deposit their views on the proposals to decrease an effort to present a complete review of Insurance Act (FDI Act) governs the assessment rates for members of the BIF the comments received by the FDIC and Board’s authority for setting assessments in recognition of the significant number for SAIF members. 12 U.S.C. 1817(b). 1 60 FR 9266 (Feb. 16, 1995). of letters that offered comments on such Section 7(b)(1)(A) and (C) require that 2 60 FR 9270 (Feb. 16, 1995). initiatives. the FDIC maintain a risk-based Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42743 assessment system, setting assessments semiannual assessments either, (a) at Enforcement Act of 1989 (FIRREA), based on: (1) The probable risk to the rates sufficient to increase the reserve Public Law 101–73, 103 Stat. 183, 406, fund posed by each insured depository ratio to the DRR within 1 year after section 21(f) requires that FICO obtain institution taking into account different setting the rates, or (b) in accordance funding for ‘‘anticipated interest categories and concentrations of assets with a schedule for recapitalization, payments, issuance costs, and custodial and liabilities and any other relevant adopted by regulation, that specifies fees’’ on FICO obligations from the factors; (2) the likely amount of any target reserve ratios at semiannual following sources, in descending such loss; and (3) the revenue needs of intervals culminating in a reserve ratio priority order: (1) FICO assessments the fund. Section 7(b)(2)(A)(iii) further that is equal to the DRR not later than previously imposed on savings directs the Board to impose a minimum 15 years after implementation of the associations under pre-FIRREA funding assessment on each institution not less schedule. FDI Act section 7(b)(3). provisions; (2) ‘‘with the approval’’ of than $1,000 semiannually. The Board Section 8(h) of the Resolution Trust the FDIC Board, assessments against must set semiannual assessments and Corporation Completion Act (RTCCA), SAIF member institutions; and (3) the DRR for each deposit insurance fund Public. Law. No. 103–204, 107 Stat. FSLIC Resolution Fund (FRF) independently. FDI Act section 2369, 2388, amended section 7(b)(3) to receivership proceeds not needed for 7(b)(2)(B). allow the Board, by regulation, to the Resolution Funding Corporation In general, the Board must set amend the SAIF capitalization schedule (REFCORP) Principal Fund. semiannual assessments for SAIF to extend the date by which the SAIF Under section 21(f)(2), FICO members to maintain the reserve ratio at must be capitalized beyond the 15-year assessments against SAIF members are the DRR or, if the reserve ratio is less time limit to a date which the Board to be made in the same manner as FDIC than the DRR, to increase the reserve determines will, over time, maximize insurance assessments under section 7 ratio to the DRR. FDI Act section the amount of semiannual assessments 7(b)(2)(A)(i). The reserve ratio is the received by the SAIF, net of insurance of the FDI Act. The amount of the FICO dollar amount of the fund balance losses incurred. FDI Act section assessment—together with any amount divided by estimated SAIF-insured 7(b)(3)(C). assessed by REFCORP under section deposits. The DRR for the SAIF is Amounts assessed by the FICO against 21B of the FHLB Act—must not exceed currently 1.25 percent of estimated SAIF members must be subtracted from the insurance assessment amount 4 insured deposits, the minimum level the amounts authorized to be assessed authorized by section 7. Section permitted by the FDI Act. In setting by the Board. FDI Act section 7(b)(2)(D). 21(f)(2) further provides that FICO SAIF assessments to achieve and In order to achieve SAIF ‘‘shall have first priority to make the maintain the DRR, the Board must capitalization, the Board adopted a risk- assessment’’, and that the amount of the consider the SAIF’s expected operating related assessment matrix in September insurance assessment under section 7 is expenses, case resolution expenditures 1992 (see Table 1) which has remained to be reduced by the amount of the FICO and income, the effect of assessments on unchanged. assessment. One important effect of the members’ earnings and capital, and any FICO assessment is to exacerbate any other factors that the Board may deem TABLE 1.ÐSAIF-MEMBER ASSESS- differential that may exist between BIF appropriate. FDI Act section 7(b)(2)(D). MENT RATE SCHEDULE FOR THE and SAIF assessment rates. Before January 1, 1998, if the SAIF FIRST SEMIANNUAL ASSESSMENT IV. Problems Confronting the SAIF remains below the DRR, the total PERIOD OF 1995 amount raised by semiannual A. Background: SAIF Assessment Rates assessments on SAIF members may not [Basis points] be less than the amount that would have As stated in the Board’s proposal, in Supervisory sub- deciding against changes in the SAIF been raised if section 7(b) as in effect on group July 15, 1991 remained in effect. See Capital group assessment rate, the Board has FDI Act section 7(b)(2)(E) and (F). The ABC considered the SAIF’s expected minimum rate required by section 7(b) operating expenses, case resolution as then in effect was 0.18 percent. Well Capitalized ...... 23 26 29 expenditures and income under a range Beginning January 1, 1998, all Adequately Capitalized . 26 29 30 of scenarios. The Board also has Undercapitalized ...... 29 30 31 minimum assessment provisions considered the effect of an increase in applicable to BIF members also apply to the assessment rate on SAIF members’ SAIF members. Under these provisions, B. Statutory Provisions Governing FICO earnings and capital. When first if the SAIF remains below the DRR, the Assessments adopted, the assessment rate schedule total amount raised by semiannual FICO was originated by section 302 of yielded a weighted average rate of 25.9 assessments on SAIF members may not the Competitive Equality Banking Act of basis points. With subsequent be less than the amount that would have 1987 (CEBA), Public Law 100–86, 101 improvements in the industry and the been raised by an assessment rate of Stat. 552, 585, which added section 21 migration of institutions to lower rates 0.23 percent. See FDI Act section to the Federal Home Loan Bank Act within the assessment matrix, the 7(b)(2)(E). (FHLB Act).3 FICO’s assessment average rate has declined to 23.7 basis In setting semiannual assessments for authority derives from section 21(f) of points (based on risk-based assessment members of the SAIF, beginning January the FHLB Act, 12 U.S.C. 1441(f). As categories as of July 1, 1995 and the 1, 1998, if the reserve ratio of the SAIF amended by section 512 of the Financial assessment base as of March 31, 1995— is less than the DRR, the Board must set Institutions Reform, Recovery, and see Table 2). 3 Title III of CEBA, entitled the Federal Savings issued by the FSLIC Resolution Fund as successor and Loan Insurance Corporation Recapitalization to FSLIC). Act of 1987, directed the Federal Home Loan Bank 4 The REFCORP Principal Fund is now fully Board to charter FICO for the purpose of financing funded and, accordingly, REFCORP’s assessment the recapitalization of the FSLIC by purchasing FSLIC securities (and, subsequently, securities authority has effectively terminated. 42744 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations TABLE 2.ÐSAIF ASSESSMENT BASE DISTRIBUTION SUPERVISORY AND CAPITAL RATINGS IN EFFECT JULY 1, 1995 DEPOSITS AS OF MARCH 31, 1995 [In billions] Supervisory subgroup Capital group AABBCC Well Capitalized ...... Number ...... 1,553 85.9% 138 7.6 25 1.4% Base ...... $604.8 83.4% $58.0 8.0% $16.6 2.3% Adequately Capitalized ...... Number ...... 25 1.4% 31 1.7% 26 1.4% Base ...... $17.4 2.4% $18.3 2.5% $6.9 1.0% Under Capitalized ...... Number ...... 0 0.0% 0 0.0% 10 0.6% Base ...... $0.2 0.0% $0.0 0.0% $3.4 0.5% ``Number'' reflects the number of SAIF members; ``Base'' reflects the SAIF-assessable deposits of SAIF members and of BIF-member Oakar banks. The primary source of funds for the sources of funds for the SAIF as follows. assessments would result in increased SAIF is assessment revenue from SAIF- First, the FDIC has a $30 billion line of losses to the Government. Moreover, member institutions. Since the creation credit available from the Department of these funds cannot be used to capitalize of the fund and through the end of 1992, the Treasury (Treasury) for deposit the fund—that is, to provide an however, all assessments from SAIF- insurance purposes, which to date has insurance reserve, which was the member institutions were diverted to not been utilized. FDI Act section 14(a). original purpose of requiring a 1.25 other needs as required by FIRREA.5 The SAIF would have to repay any reserve ratio. Only assessment revenue generated amounts borrowed from the Treasury The RTC’s resolution activities and from BIF-member institutions that with premium revenues, however. The the thrift industry’s substantial acquired SAIF-insured deposits under FDIC would have to provide the reduction of troubled assets in recent section 5(d)(3) of the FDI Act (12 U.S.C. Treasury with a repayment schedule years have resulted in a relatively sound 1815(d)(3)) (so-called ‘‘Oakar’’ banks) demonstrating that future premium industry as the SAIF assumes resolution was deposited in the SAIF throughout revenue would be adequate to repay any responsibility. However, with a balance this period. amount borrowed plus interest. FDI Act of $2.2 billion, the SAIF does not have section 14(c). a large cushion with which to absorb the B. The SAIF is Significantly costs of thrift failures. The FDIC has Undercapitalized Next, the RTCCA authorized the appropriation of up to $8 billion in significantly reduced its projections of SAIF-member assessment revenue Treasury funds to pay for losses failed-thrift assets for 1995 and 1996, began flowing into the SAIF on January incurred by the SAIF during fiscal years but the failure of a single large 1, 1993. However, the FICO has a 1994 through 1998, to the extent of the institution or several sizeable priority claim on SAIF-member availability of appropriated funds. In institutions or an economic downturn assessments in order to service FICO addition, at any time before the end of leading to higher than anticipated losses bond obligations. Under existing the 2-year period beginning on the date could render the fund insolvent. The statutory provisions, FICO has of the termination of the RTC, the FDIC’s loss projections for the SAIF are assessment authority through 2019, the Treasury is to provide out of funds discussed in more detail below. maturity year of its last bond issuance. appropriated to the RTC but not At a maximum of $793 million per year, C. Condition and Performance of SAIF- expended, such amounts as are needed Member Institutions 7 the FICO draw is substantial, and is by the SAIF and are not needed by the expected to represent 45 percent of RTC. To obtain funds from either of During the first quarter of 1995, SAIF- estimated assessment revenue for 1995, these sources, however, certain member institutions continued to improve asset quality and posted or 11 basis points of the average certifications must be made to the 6 improved, though modest, earnings. assessment rate of 23.7 basis points. Congress by the Chairman of the FDIC. SAIF members had a return on assets of The SAIF had a balance of $2.2 billion FDI Act sections 11(a)(6)(D), (E) and (J). 0.64 percent in the first quarter, up from (unaudited) on March 31, 1995. With Among these, the Chairman must certify 0.55 percent in the fourth quarter and primary resolution responsibility that the Board has determined that: residing with the Resolution Trust 0.40 percent in the first quarter of 1994, Corporation (RTC), there have been few (1) SAIF members are unable to pay when a few of the largest thrifts additional semiannual assessments at the demands on the SAIF. The SAIF incurred substantial restructuring rates required to cover losses and to meet the charges. Earnings improvement over the assumed resolution responsibility for repayment schedule for any amount failed thrifts from the RTC on July 1, borrowed from the Treasury for insurance fourth quarter was due to lower loss 1995, however. In addition to purposes under the FDIC’s line of credit provisions (down 18 percent) and assessment revenue and investment without adversely affecting the SAIF reduced noninterest expense (down 10 income, there are other potential members’ ability to raise capital or to percent). This helped offset lower net maintain the assessment base; and interest income caused by a narrowing (2) An increase in assessment rates for 5 From 1989 through 1992, more than 90 percent of the average net interest margin, of SAIF assessment revenue went to the FRF, the SAIF members to cover losses or meet any which fell to 2.97 percent from 3.12 REFCORP and the FICO. repayment schedule could reasonably be percent in the fourth quarter. Increased 6 The FICO has an annual call on up to the first expected to result in greater losses to the competition for deposits, particularly in $793 million in SAIF assessments until the year Government. 2017, with decreasing calls for two additional years the West Region, raised interest expense thereafter. With interest credited for early payment, It may require extremely grave the actual annual draw is expected to approximate conditions in the thrift industry in order 7 Excluding one RTC conservatorship and one $780 million. for the FDIC to certify that raising SAIF self-liquidating savings institution. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42745 by 6.5 percent over the fourth quarter, the former BIF schedule and the current on thrifts and impede their ability to while interest income was up only 1.7 SAIF schedule. Lower BIF rates were generate capital both internally and percent. adopted because the BIF is believed to externally.8 Asset quality continued to improve in have recapitalized during the second E. Assessment Rate Spread the first quarter, as noncurrent loans fell quarter of 1995. Largely due to the FICO 4.2 percent from year-end 1994 and 28 obligation, the SAIF is not expected to Under the SAIF assessment rate percent from the level of a year ago. The capitalize until 2002 (this projection is schedule there is a spread of 8 basis inventory of foreclosed real estate fell discussed below), and SAIF assessment points, from 23 basis points for even further, down 7.3 percent during rates cannot be lowered below the institutions in category 1A to 31 basis the first quarter and 40 percent over four statutory minimum of 18 basis points. points for institutions in category 3C. quarters. Although loss reserves have Under the current BIF and SAIF Under the newly adopted BIF declined slightly over the past year, the assessment rate schedules, average SAIF assessment schedule, the spread for BIF drop in noncurrent loans resulted in a rates are likely to remain about 20 basis members was increased from 8 to 27 coverage ratio of 84 cents for each dollar points higher than average BIF rates for basis points. This was accomplished by of noncurrent loans, about the same as the next seven years, until the SAIF is dropping the minimum, most favorable in December and 10 cents higher than capitalized. After capitalization, SAIF rate from 23 to 4 basis points. Thus, the in March 1994. Most major balance rates would continue to be at least 11 weakest BIF members will incur no sheet categories, including total assets, basis points higher until the FICO bonds additional deposit insurance cost. In loans and deposits, showed small mature in 2017 to 2019, assuming the order to apply a similar 27-basis point declines during the first three months of Board sets SAIF assessment rates to spread to SAIF members, it would be 1995, although equity capital grew cover FICO’s needs. necessary to raise the highest SAIF slightly, raising the equity-to-assets ratio If BIF members pass along their assessment rate to 45 to 50 basis points, to 7.88 percent. assessment savings to their customers, based on a lowest rate of 18 to 23 basis As of March 31, 1995, there were SAIF members may be forced to pay points. Because 86 percent of SAIF 1,806 members of the SAIF, including more for deposits or charge less for members would continue to pay the 1,731 savings institutions and 75 loans to remain competitive. For SAIF lowest rate, the revenue benefit of a 27- commercial banks. On this date, there members, this could result in reduced basis point spread would be limited. were 58 SAIF-member ‘‘problem’’ earnings and an impaired ability to raise However, analysis indicates that SAIF institutions with total assets of $32 funds in the capital markets. Among the assessments ranging to 50 basis points, billion, compared to 83 institutions with weakest thrifts, a 20-basis point creating a premium differential of as $63 billion a year earlier. No SAIF differential could result in competitive much as 46 basis points, would greatly members failed during the first quarter pressures that cause additional failures. increase the expenses of SAIF members of 1995. An analysis of over a five-year time span and likely would result in significant This discussion has focused on the suggests that any such increase in additional failures. While the Board improving condition of the SAIF- failures attributable to an average 20- recognizes that a spread of more than 8 member thrift industry, but any such basis point differential is likely to be basis points would better serve the goals discussion must mention the relatively sufficiently small as to be manageable of a risk-related premium system, given weak economic conditions still by the SAIF under current interest-rate the minimum average of 18 basis points confronting a large segment of the and asset-quality conditions. Moreover, currently prescribed by law, a wider industry. Eighteen percent of all SAIF- the analysis indicates that under harsher spread could only be implemented by insured deposits are concentrated in the than assumed interest-rate and asset- raising rates for all but the strongest nation’s eight largest thrift institutions, quality conditions, these economic SAIF members, which likely would all of which operate predominantly in factors would have a significantly have adverse consequences for an California. This state, in general, has greater effect on SAIF-member failure undercapitalized SAIF. For these lagged behind most of the nation in rates than would an average 20-basis reasons, the Board chose to retain an recovering from the most recent point premium differential. assessment rate spread of 8 basis points recession, and many California thrifts A separate analysis focused on BIF for members of the SAIF. have significant exposure in the weakest and SAIF members in the 3C assessment F. The Ability of the SAIF to Fund FICO areas of southern California. categories (undercapitalized/ Additionally, a few large institutions supervisory subgroup C) that will be Under law, SAIF assessments paid by have suffered low earnings and still paying 31 basis points. These weaker BIF-member Oakar banks are deposited have relatively high levels of risk in institutions will be competing with a in the SAIF and are not subject to FICO their loan portfolios. Consequently, large group of BIF members in category draws.9 despite the improving health of the 1A (well capitalized/supervisory Further, SAIF assessments paid by thrift industry, the SAIF still faces category A) that will be paying only 4 any former savings association that: (i) significant risk relative to the fund’s basis points. The analysis assumed that Has converted from a savings current reserve level. the 3C institutions would have to absorb association charter to a bank charter, the entire 27-basis point differential in and (ii) remains a SAIF member in D. Impact of a Premium Differential the form of higher interest paid or lower accordance with section 5(d)(2)(G) of In a separate rule-making on August interest earned. The result was that the FDI Act (12 U.S.C. 1815(d)(2)(G)) (a 8, 1995, the Board adopted a final rule apart from institutions that have already amending the FDIC’s regulation on been identified by the FDIC’s 8 See ‘‘The Condition of the BIF and the SAIF and Related Issues,’’ Testimony of Ricki Helfer, assessments to establish a new supervisory staff as likely failures, the Chairman, FDIC, before the Subcommittee on assessment rate schedule for institutions wider spread is likely to have a minimal Financial Institutions and Consumer Credit, whose deposits are subject to impact in terms of additional failures. Committee on Banking and Financial Services, U.S. assessment by the BIF. Under the new Nevertheless, the Board recognizes House of Representatives, Attachment C entitled ‘‘Analysis of Issues Confronting the Savings schedule, BIF assessment rates range that a premium differential between Association Insurance Fund,’’ March 23, 1995. from 4 to 31 basis points, compared to BIF- and SAIF-insured institutions is 9 See Notice of FDIC General Counsel’s Opinion a range of 23 to 31 basis points under likely to increase competitive pressures No. 7, 60 FR 7055 (Feb. 6, 1995). 42746 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations so-called ‘‘Sasser’’ bank), are likewise banks held 26.8 percent of the SAIF Sasser banks held an additional 7.2 not subject to assessment by FICO.10 On assessment base, and SAIF-member percent (see Table 3). March 31, 1995, BIF-member Oakar TABLE 3.ÐPERCENTAGE DISTRIBUTION OF THE SAIF ASSESSMENT BASE Not available to FICO Available to Total (per- FICO (per- Oakar (per- Sasser (per- Subtotal cent) cent) cent) cent) (percent) 12/89 ...... 99.8 0.2 0.0 0.2 100.0 12/90 ...... 95.8 3.9 0.3 4.2 100.0 12/91 ...... 89.9 8.7 1.5 10.1 100.0 12/92 ...... 85.9 10.3 3.8 14.1 100.0 12/93 ...... 74.7 19.4 5.9 25.3 100.0 12/94 ...... 67.3 25.4 7.3 32.7 100.0 3/95 ...... 66.0 26.8 7.2 34.0 100.0 While the pace of Oakar acquisitions insured institution to a BIF-insured G. Failed-Asset Estimates for the SAIF slowed as RTC resolution activity affiliate. At least a dozen organizations Among the factors that affect the wound down, Oakar acquisitions may have already filed applications seeking ability of the SAIF to capitalize and to continue and become an even greater to establish such affiliate relationships. meet the FICO assessment are the proportion of the SAIF assessment If a competitive imbalance number of thrift failures and the dollar base.11 This has the potential result of attributable to a premium differential amount of failed assets going forward. the SAIF having insufficient materializes, that is, if BIF members Estimates of failed-institution assets assessments to cover the FICO are made by the FDIC’s interdivisional obligation at current assessment levels. pass along their savings to their customers, a rapid acceleration in the Bank and Thrift Failure Working Group. The rate of Sasser conversions is In July 1995, the Working Group shrinkage of the SAIF assessment base difficult to predict and is partially estimated failed thrift assets of $100 could begin soon thereafter. With two dependent on state laws, but any future million for the second half of 1995, $2 conversions would also decrease the insurance funds providing essentially billion for 1996 and $2 billion for the proportion of SAIF assessment revenues the same product at significantly first half of 1997. The estimate of $100 available to FICO. different prices, it must be expected that million for the second half of 1995 In addition to the growth of the purchasers will seek the lower price. represented a sharp decline from the $3 Oakar/Sasser portion of the SAIF Attempts to control this behavior billion estimated by the Working Group assessment base, the ability of the SAIF through legislation or regulation are in November 1994. The $2 billion to fund FICO interest payments will be likely to be ineffective and may only estimate for 1996 was unchanged. In the adversely affected by an ongoing result in companies finding less estimation process, failed assets for the premium differential. A differential is efficient means. A result of the expected first twelve months of the two-year likely to create powerful incentives for shrinkage of the SAIF assessment base period are based on the FDIC’s projected SAIF-insured institutions to minimize could be a default on FICO bonds. At failure of specific institutions. Estimates their premium costs by reducing their current assessment rates, a SAIF for the second twelve months are SAIF-assessable deposits.12 This can be assessment base of $328 billion is derived from the FDIC’s longer-term loss accomplished in a number of ways needed to generate sufficient assessment experience. For loss projections beyond despite the current moratorium on the revenue to cover the FICO draw of up mid-year 1997, the assumed failed-asset conversion of SAIF-insured deposits to to $793 million per year. The FICO- rate for the SAIF was 22 basis points, or BIF-insured deposits. SAIF-insured available base, which excludes Oakar about $2 billion per year. institutions could reduce their SAIF In the FDIC’s projections, banks and and Sasser deposits, was $478 billion on deposits by shifting their funding to thrifts were assumed to face similar March 31, leaving a ‘‘cushion’’ of $150 nondeposit liabilities, such as Federal longer-run loss experience. The BIF’s Home Loan Bank advances and reverse billion. This cushion could quickly be historical average failed-asset rate from repurchase agreements. Institutions depleted if the strategies described 1974 to 1994 was about 45 basis points. could also reduce their funding needs above are successful, possibly causing a However, a lower failure rate than the by securitizing assets or by changing FICO default. A legislated reversal of the recent historical experience of the BIF business strategies, such as choosing to Oakar/Sasser exemption would only was assumed because the thrift industry become a mortgage bank. Lastly, SAIF- defer a FICO shortfall because the is relatively sound following the RTC’s insured institutions and their parent existence of a significant, prolonged removal of failing institutions from the companies could structure affiliate premium differential is likely to result system, and the health and performance relationships that would facilitate the in continued erosion of the SAIF of the remaining SAIF members has migration of deposits from a SAIF- assessment base. improved markedly. As of March 31, 10 Id. overall deposit growth rate (excluding the effects of Condition of the SAIF and Related Issues,’’ 11 SAIF-assessable deposits held by BIF-member mergers or acquisitions). Testimony of Ricki Helfer, Chairman, FDIC, before Oakar banks will continue to grow at the same rate 12 ‘‘The Condition of the SAIF and Related the Subcommittee on Financial Institutions and as the Oakar bank’s overall deposit base. Under Issues,’’ Testimony of Ricki Helfer, Chairman, FDIC, Consumer Credit, Committee on Banking and section 5(d)(3) of the FDI Act, as amended by the before the Committee on Banking, Housing, and Financial Services, U.S. House of Representatives, Federal Deposit Insurance Corporation Urban Affairs, U.S. Senate, Attachment A entitled Attachment A entitled ‘‘The Immediacy of the Improvement Act of 1991 (FDICIA), such deposits ‘‘The Immediacy of the Savings Association Savings Association Insurance Fund Problem,’’ are adjusted annually by the acquiring institution’s Insurance Fund Problem’’, July 28, 1995. ‘‘The August 2, 1995. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42747 1995, 86 percent of all SAIF-member Comment Summary members but believes that the effect of institutions were in the best risk the resulting substantial SAIF/BIF I. Comments Regarding SAIF classification of the FDIC’s risk-related premium differential could overwhelm Assessment Rates premium matrix. the currently healthy savings One of the purposes of the FDICIA A. General Comments institutions and render the SAIF was to minimize losses to the insurance Approximately 111 commenters said insolvent’’. funds. FDICIA increased regulatory that the SAIF rate should be decreased B. Impact of an Assessment Rate oversight and emphasized capital. to 18 basis points; an additional 108 Differential Specifically, FDICIA requires the commenters urged that the differential Comments from SAIF-insured closing of failing institutions prior to the between BIF members and SAIF institutions focused on the competitive members be limited to 5 basis points, full depletion of their capital, limits disadvantage inherent in the proposed regardless of the rates prescribed. With riskier activities by institutions that are premium differential. Approximately regard to the potential 19 basis point less than adequately capitalized, and 133 commenters argued that capital will differential between BIF-members and establishes audit standards and flow away from savings associations if SAIF-members, one large savings statutory time frames for examinations. a disparity in the rates were permitted; association stated: The law also requires the over 300 argued that savings implementation of risk-related Such a differential is significant in a associations will be at a disadvantage assessments, which have provided narrow margin business such as home competitively if rates were disparate; effective incentives for institutions to mortgage lending, which is the primary more than 90 commenters claimed that business of most SAIF members. This achieve and maintain the highest capital a disparity would mean fewer funds for and supervisory standards. In light of differential when leveraged at 20 to 1 will result in the BIF members producing 4 home buyers. Over 80 commenters these provisions, the high levels of thrift argued that a rate disparity would cause failures and insurance losses percent greater returns on equity than the SAIF members for the same business. the SAIF assessment base to shrink. One experienced over the past decade must thrift expressed its concerns as follows: be tempered when considering the This savings association suggested industry’s near-term future that some SAIF members would try to The impending disparity between BIF and SAIF deposit insurance premiums will bring performance. overcome any disadvantage a differential may pose by reducing their about the gradual demise of the thrift H. Projections for the SAIF costs, while others may attempt to industry. The significant competitive disadvantage to SAIF members will cause a increase revenue through potentially The FDIC currently projects that, natural migration of deposits to BIF-insured risky investments which could increase institutions and an erosion of the SAIF’s under reasonably optimistic SAIF losses. Most commenters urging a assumptions, the SAIF is not likely to premium assessment income. Lower profits reduction in SAIF rates were SAIF will make it increasingly difficult for savings reach the statutorily mandated DRR of members. institutions to raise capital in the 1.25 percent until 2002. Also, Many commenters did not offer marketplace, eventually contributing to a rise projections indicate the fund will not comments concerning the particular rate in thrift failures. The SAIF will be faced with encounter problems meeting the FICO at which the minimum SAIF assessment a dwindling deposit assessment base, fixed obligation through 2004. It is important rate should be set. Rather, the vast obligations to the FICO bond holders, and waning capitalization levels of its members. to note that the baseline assumptions majority of SAIF-affiliated commenters underlying these projections foresee simply commented that a disparity * * * * * shrinkage in the non-Oakar portion of between SAIF rates and BIF rates would The thrift industry today is profitable, well-managed, and well-capitalized. It the SAIF assessment base of 2 percent harm the thrift industry and asked that per year. If thrifts react aggressively to provides consumer and financial services in the premium differential be reduced or more than 12,500 offices nationwide, and it the premium differential and reduce eliminated: ‘‘If disparity must exist, their SAIF-assessable deposits, as employs 217,600 people. Thrifts specialize in make it minimal’’. These comments are home financing and hold $649 billion in discussed in Section IV.F, substantially discussed in more detail later in this mortgage loans and securities. The thrift greater shrinkage may occur. Under summary. industry plays an important role in the U.S. higher rates of shrinkage, the SAIF is In contrast, approximately 67 economy; it does not deserve the fate which likely to capitalize sooner than 2002 commenters (64 BIF members, 2 SAIF awaits it if Congress does not promptly because a lower level of insured members, 1 trade group, and 1 other) address the premium disparity issue. deposits would require a smaller fund to said that the SAIF assessment rate Many thrifts compared the proposed meet the DRR; however, FICO interest should not be decreased below the premium disparity to an additional 15 payments could soon be imperiled. current minimum rate of 23 basis percent tax on thrifts’ earnings. One As stated earlier, the Board has the points. The following comment is letter said the differential would raise authority to reduce SAIF assessment typical of those who supported the effective tax rate for savings rates to a minimum average of 18 basis maintaining SAIF assessment rates at associations to 60 percent, compared to points until January 1, 1998, at which current levels: ‘‘[T]he current level of about 30 percent for banks and zero for time the average rate would rise to 23 assessments * * * has not posed credit unions. Another stated that thrifts basis points until capitalization occurs. problems for the capital or earnings of would be hurt because depositors are Projections made under this scenario thrifts. Most thrifts are healthy today’’. almost solely focused on yields and (and using the other baseline While expressing alarm as to the would not hesitate to move their funds assumptions) indicate that the SAIF impending disparity, many SAIF- if their savings institutions could not would capitalize in 2005, or three years members did not specifically oppose the pay competitive interest rates on later than under the existing rate proposed reduction in BIF rates. For deposits. schedule. Perhaps more importantly, example, one large savings association Approximately 215 commenters reduction of the SAIF assessment rate to stated: ‘‘[The savings association] argued that savings associations had a 18 basis points is expected to cause a supports the revised assessment competitive advantage in the 1970s with FICO shortfall in 1996. schedule that is proposed for BIF the interest-rate advantage accorded 42748 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations thrifts under Regulation Q. They reporting could provide significant that have lasting value to the business and indicated that banks had been able to savings to offset what would otherwise our nation as a whole. survive in such an environment of be deposit insurance premium savings. Approximately 293 institutions disparate rates and that savings It also suggested that the remaining RTC suggested that there was no immediate associations should also be able to funds be used to capitalize the SAIF. SAIF problem, implying that there was survive. Under such a differential, A bank holding company that no urgent need to capitalize SAIF. For thrifts ‘‘certainly did not get all of the acquired failed thrifts from the RTC example, a trade association said: ‘‘[T]he deposit dollars and they certainly would commented that a premium disparity S&L industry and SAIF are in much not lose all of them now,’’ stated one would force its thrift to pay less interest better shape than anyone could have letter. Another claimed: ‘‘Nineteen basis to its depositors and/or increase the imagined only two years ago. The S&L points is hardly an unbridgeable charge on borrowers, make it more industry is profitable and increasingly competitive gulf.’’ A state trade difficult for its thrift to provide home well capitalized’’. It suggested that the association for bankers agreed that the loans or lend to small businesses, and SAIF situation be carefully monitored premium differential would threaten its thrift’s ability to participate through Congressional oversight undoubtedly cause some savings in low and moderate income housing hearings and other mechanisms. One associations competitive problems, but programs. Another bank holding banker said: ‘‘If and when the SAIF fund noted that banks and savings company with both bank and thrift is in jeopardy or the FICO payment associations already compete with a subsidiaries commented that banks cannot be made, call us’’. A few bankers number of financial firms that do not should not be forced to pay for FICO but suggested implementing the proposed currently pay deposit premiums and that any remaining RTC funds should be assessments and waiting two years to cited credit unions as an example. A used to reduce FICO obligations. see if, in fact, a differential materializes number of other letters also downplayed Another such holding company and whether it adversely impacts thrifts. the competitive disadvantage of a suggested a 3-basis point surcharge on However, it seems likely that some cost premium disparity by arguing that BIF members, dropping the SAIF rate to differential would materialize between thrifts already compete with nondeposit 15 basis points and merging the funds banks and thrifts because, among competitors such as securities firms, when SAIF became fully capitalized. bankers indicating a likely use for their mutual funds, mortgage bankers, C. Need for Immediate Action premium savings, they most frequently insurance companies and finance mentioned paying higher interest on companies that do not pay any deposit- Many commenters suggested that if deposits and/or charging lower rates for insurance premium. immediate steps were not taken to loans. Other possible uses included Of particular interest were those eliminate the impending disparity augmenting capital to fund growth, comments submitted by holding between SAIF and BIF rates, the technology updates and higher companies that control both BIF- ultimate cost to SAIF and FICO would dividends to shareholders. member banks and SAIF-member thrifts, be higher. One federally-chartered A few bankers saw it as inevitable that as well as comments submitted by savings association wrote: some of the cleanup costs borne by institutions that were obligated to pay The shrinkage of the deposit base of thrifts will be shifted to the banking assessments to BIF and SAIF as a result savings institutions since FIRREA has industry. ‘‘My fellow bankers would of participating in a transaction already called into question whether the probably hang me for even suggesting pursuant to the so-called ‘‘Oakar’’ business can recapitalize itself given the tax we pay,’’ wrote one banker who provisions (12 U.S.C. 1815(d)(3)). One being imposed by the FICO obligation. The creation of a significant premium disparity recommended using excess RTC funds holding company that owned both a BIF will bring about new and ever creative ways to reduce FICO by one-half, adding 1 or member and a SAIF member wrote: to avoid or reduce the impact of the high cost 2 basis points to the proposed BIF rates To the extent that the rate differential is a alternative. I do not believe that the premium to be used toward FICO and leaving Government imposed cost, there is a disparity will wreak widespread destruction SAIF rates at current levels until FICO significant advantage to the bank and a real over the savings institution industry. It will, is paid and SAIF capitalized. Another however, cause the business to disappear and disadvantage to the thrift that has nothing to banker offered to pay an additional 11⁄2 do with the way either the bank or the thrift hasten the day of reckoning for the SAIF. to 21⁄2 basis points toward SAIF and handles its own business or cares for the A holding company stated: FICO if other financial service providers customer. This will be the effect of the disparity of premium rates, resulting in fewer We believe that leaving solutions to these did the same. The taxation of credit thrifts to pay insurance premiums, potential problems for another day will be most unions was frequently mentioned as a FICO bond defaults and, in the end, a more harmful to both banks and thrifts and to the potential source of funding. expensive solution will be imposed to country as a whole and certainly more A number of BIF-affiliated resolve a crisis much larger than at present, expensive to resolve than if the issues are commenters noted that the Board and banks will be forced to participate in the faced now and resolved. should not take into account a potential expense of solving that problem. Therefore, Many commenters suggested that if differential between BIF and SAIF when if we want to talk fairness, this is where SAIF rates remained high, SAIF setting BIF assessment rates. A large fairness begins and ends: it is not fair to anyone to impose a more expensive solution members would find other means to trade association for bankers noted, later when much less is needed if we act now shift deposits out of SAIF. One holding however, that the Board is permitted to and can offer a quid pro quo to the banks for company commented: consider the effect of SAIF assessments their participation. [We believe that a] solution needs to be on the earnings and capital of thrift This holding company recommended found and implemented at once, that delay members. that the Board champion legislation that is costly in solving this problem and that II. Suggested Legislative Initiatives would merge the funds but, at the same delay encourages business to channel its time, provide the banking industry with talent and resources towards ‘‘artificial A. Summary restructuring’’ such as Great Western’s a quid pro quo for the additional cost proposal (which makes business sense only As indicated above, SAIF members that would be placed on it. It suggested because of the anticipated disparity in uniformly agreed that the impending that regulatory relief from the burdens premium costs for deposit insurance), rather disparity would harm their industry. of data gathering, retention and than towards true business reorganizations Many commenters affiliated with SAIF- Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42749 members argued that the SAIF rate reversed itself. This is unfair to the thrift the same industry and similarly see no should be lowered to the statutory industry. reason to assist a competitor (‘‘* ** minimum average of 18 basis points, A thrift holding company added that like asking General Motors to bail out and others argued that the SAIF rate FICO bonds were issued with non- Chrysler’’). A few letters contended that should be lowered to within 5 basis callable provisions, which precluded the banking industry has already paid points of the BIF rates. A significant refinancing of these obligations in the dearly for the savings and loan crisis of number of such commenters noted, recent low interest rate environment. It the 1980s through an increased however, that reducing or eliminating argued: ‘‘We believe that this oversight regulatory burden. A number of bankers the disparity would not be a final in the FICO bond provisions and the cited higher interest rates paid by thrifts solution, noting that FICO draws would lack of supplemental funding by the with which they compete, and a few continue to undermine SAIF. Some Treasury for the SAIF, support an letters included newspaper clippings of commenters predicted another argument that the recapitalization of the advertisements placed by thrifts. ‘‘If insurance fund crisis which would SAIF should be borne by the they can afford to pay higher interest ‘‘cause irreparable damage to the entire government and not SAIF members.’’ rates for deposits’’, wrote one banker, industry which already has lost A large savings association referenced ‘‘they can afford to bear the burden to significant market share to less the additional payments from Treasury recapitalize SAIF’’. regulated non-bank competitors’’. Many contemplated by FIRREA, and suggested Thrifts countered along the following of these commenters urged legislative that these ‘‘safety net payments’’ were lines: ‘‘The simple fact is today’s thrift institutions are now being punished for action. A thrift trade association wrote: intended to balance the additional the savings and loan cleanup of the burdens imposed on the thrift business The [FDIC] is charged with the 1980s. While this may be emotionally management of both BIF and SAIF and with by FIRREA (on top of the FICO burden gratifying for some, it makes little sense the responsibility of seeing to it that neither imposed in 1987). It described these from an economic perspective’’. fund becomes a burden on the taxpayers of added burdens to be ‘‘confiscating the America. For this reason, it is incumbent on thrift industry’s $2.5 billion investment C. Use of RTC Funds the FDIC board to promptly recommend to in the retained earnings of the Home the Congress a course of action that will Over 250 commenters (179 BIF mitigate the effects of the premium Loan Banks, diverting an added $3.1 members, 60 SAIF members, 9 trade differential and achieve competitive parity billion in premiums to REFCORP and associations, and 8 other organizations/ between all insured institutions as soon as FRF, and requiring the Home Loan individuals) urged that RTC funds be possible. Banks each year to pay $300 million in made available to SAIF for interest on REFCORP bonds.’’ The B. ‘‘Fairness’’ Arguments capitalization purposes; over 90 (9 BIF savings association argued that if the members, 65 SAIF members, 9 trade In an apparent attempt to explain why original FIRREA payments had been associations, and 9 organizations/ SAIF members alone should not bear carried out, the Treasury would have individuals) urged that the RTC funds the burden of recapitalizing SAIF, paid $5.3 billion into SAIF over the five be made available to SAIF on a approximately 159 commenters (10 BIF year period from fiscal year 1993 contingent basis to rescue SAIF from members, 134 SAIF members, 4 trade through fiscal year 1997 and the fund future losses. associations, and 11 other would have reached its reserve target of The solution most frequently organizations/individuals) argued that 1.25 percent in early 1998 based on recommended by thrifts (and their savings associations in operation today FDIC assumptions regarding future primary trade group) involved having were no more responsible than BIF losses and deposit growth. the FICO burden shared proportionately members for the condition of SAIF. One Approximately 949 commenters (922 by BIF and SAIF, using excess RTC holding company commented: BIF members, 1 SAIF member, 12 trade funds to cover losses in institutions While none of the existing thrifts today associations, and 14 other identified as problems as of year-end caused the S&L crisis of the last decade any organizations/individuals) stated as a 1997 and reducing the SAIF differential more than did the banks, the banks were general principle that the banking to 5 basis points until the SAIF is promised premium relief once BIF was industry should not pay for SAIF capitalized. These measures would adequately capitalized at 1.25 percent. problems. Bankers stated that they require Congressional action, but as an However, going forward, there is no moral solved their own problem by interim measure, the FDIC was urged to issue about having deposit insurance recapitalizing the BIF and did not cause reduce the SAIF premium to 18 basis available at the same rate to thrifts and to the problems now confronting the SAIF. points, the minimum average SAIF rate banks even though in the past failed thrifts They were adamant about not using BIF cost much more than failed banks. allowed under current law. Variations funds to capitalize or otherwise assist on this proposal included lowering the Some commenters criticized earlier the SAIF even though this was not part DRR to 1 percent, although a few writers legislative policy concerning SAIF of the assessment rate proposals. ‘‘The asked that this ratio be raised to as high funding. One trade association for SAIF should paddle their own boat’’, as 1.50 percent for BIF and SAIF. bankers wrote: commented one banker, which D. One-time Special Assessment Against In 1989 when SAIF was created, Congress succinctly expressed the views of others authorized two types of supplemental that SAIF members should continue to SAIF Members funding from the Treasury—a backup pay higher premiums until their fund is Approximately 11 BIF members and funding for SAIF premiums and payments to capitalized. 10 SAIF members, as well as 2 trade maintain a minimum fund balance. The Some bankers commented that banks groups, urged that a one-time requirement under prior law was that the and thrifts operate in separate assessment be imposed against SAIF Treasury capitalize the SAIF at $8.8 billion industries, and there is no rationale for members. In opposition to such a by fiscal 1999. Treasury never requested these authorized funds. The RTC Completion asking one to assist the other (‘‘* * * no proposal, one large thrift holding Act repealed this authorization. But it is different than asking a cow man to bail company asserted that the thrift important to note that in 1989, the out a broke sheep farmer under the industry had already paid sufficient government promised to contribute $8.8 guise that both raise livestock’’). Others deposit premiums since FIRREA to have billion to the SAIF and then five years later see banks and thrifts as competitors in capitalized the SAIF but of the $9.5 42750 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations billion in premiums paid, only $2.4 obligations to be borne by the new fund and/or defease the FICO bond billion went into SAIF. It argued: ‘‘Any as a whole and noted: obligation. It suggested various ways to substantial up front assessment on Effecting this merger will enable the use the remaining RTC monies for SAIF/ thrifts is not only unfair, it is government to keep its promise to the FICO, such as: (1) Transferring the counterproductive in the sense that it American people and will avoid using remaining RTC funds to SAIF, leaving could precipitate even grater losses to taxpayer funds either to capitalize the SAIF the principle intact, but investing the the insurance fund’’. At the same time, today, or to bail it out several years from funds so as to generate sufficient however, it indicated that if its preferred now. If deposit insurance premiums for both interest earnings to pay FICO bond method of recapitalizing SAIF—using banks and thrifts were kept at their current interest of up to $793 million; (2) using levels, a combined fund could reach full RTC funds—proved insufficient to reach capitalization at 1.25% within approximately the remaining RTC funds to capitalize the 1.25 percent ratio, a variety of means 20 months after the merger * * *. Thus SAIF, which they claimed would leave might be considered to fill the gap, banks and thrifts would experience very little ample funds to address the FICO including the use of borrowed funds, a delay in seeing their premiums reduced. problem; (3) using the RTC funds only ‘‘one-time assessment or a temporarily A California savings association to defease the FICO obligation thereby higher premium’’. It stated that such argued that even after SAIF is fully enabling SAIF to capitalize at the methods would have to be structured so capitalized, the fund would be unsound current assessment rates by 1998. as to minimize the impact on the 13 because the SAIF has too much F. FICO Issues earning capacity of the thrift business. geographic concentration in California. E. Merge the BIF and the SAIF It urged that the funds be merged to Over 200 commenters urged that BIF generate sufficient geographic spread. members share in FICO assessments, Merging the BIF and the SAIF was with the majority of these urging that frequently suggested (approximately 121 Some suggested that SAIF members could pay a one-time assessment (80 BIF members share proportionately. commenters, including approximately 6 Over 200 commenters urged that RTC trade groups) and was seen by some as basis points was mentioned) to capitalize the SAIF prior to a merger of funds be used to defease FICO and a few inevitable and possibly less expensive commenters urged that the $8 billion today than ‘‘four or five years down the the funds. The premium differential could then be reduced to 5 basis points from RTCCA be used as well. Over 70 road’’. As one thrift executive wrote: commenters urged that premiums paid ‘‘The consumer views deposit insurance or less or eliminated altogether. A savings banker suggested that thrifts be by Oakar and Sasser institutions should as coming from one source—backed by be used for FICO bond interest the U.S. Government’’. A state trade allowed to record the special assessment as a credit against the tax bad debt payments. It was recognized, however, association representing thrifts that such a change in the law would be supported the merging of the two funds reserve in order to lessen the immediate impact on tax revenues. A variety of of limited benefit to SAIF. A large ‘‘as the only solution that will assure banking trade group commented: that all institutions of equal risk profiles writers, including banks, thrifts and an will pay the same premium for federal industry watchdog group, questioned Using Oakar and Sasser premiums for FICO deposit insurance’’.14 the need for a separate thrift charter bond interest, however, would slow the One thrift holding company once the funds have been merged. recapitalization of the SAIF. To address this supporting merger of the funds if the Over 775 commenters, including problem, the Congress could also extend the remaining RTC funds were not available approximately 10 trade groups, argued recapitalization schedule of SAIF, giving FDIC more leeway to reduce SAIF premiums. submitted the following comment: against a merger of the insurance funds. Many of those opposing a merger of the The original distinction between funds essentially argued that the One large thrift suggested that if the commercial banks and savings institutions banking industry should not be required FICO burden were spread over all SAIF has significantly blurred over the last decade and BIF members equally, the cost ** *. In addition, most, if not all, of the tax to participate in an economic solution which would benefit their competition. would be approximately 2 basis points and regulatory ‘‘advantages’’ which per institution. It suggested that bank benefitted savings institutions in the past For example, a state trade association have been eliminated or significantly representing banks argued that ‘‘for deposit premiums should not be curtailed. Likewise, the Federal Home Loan decades S&Ls enjoyed a lax regulatory increased to absorb such an additional Bank system, which was an exclusive environment, significant tax breaks, and cost. Rather, the FICO charge should be province of savings institutions, is now being a mandated competitive advantage’’. It deducted from any BIF premium paid. embraced as a significant competitive benefit In contrast, a bank trade group argued: by an increasing number of commercial said: ‘‘Asking banks to shoulder the bailout burden of a key competitor ‘‘Such payments would merely protect banks. Any portion of a weakened federal FICO bondholders. * * * Tapping BIF deposit insurance fund will have adverse because a long time competitive consequences on the entire banking industry advantage will be reversed is unfair and funds for uses other than protection of in the public’s perception. inappropriate, particularly when banks BIF depositors would set a very dangerous precedent’’. Another thrift urged that the funds be are not responsible for the problems of merged with the FICO interest the thrifts’’. G. Other Approaches One large trade association opposing 13 In conjunction with this proposal, it suggested a merger of the funds wrote: ‘‘The Other recommended alternatives that RTC be extended for two years to cover any looming premium differential will included reducing BIF rates to 15 basis failures of thrifts currently under its supervisory prompt thrifts to continue to look for points and putting the excess watch. loopholes to leave SAIF, further assessment in a ‘‘secondary reserve’’ 14 In light of the political sensitivity to such a merger, this trade association wrote that it could exacerbating the SAIF/FICO problem. account, such as existed under FSLIC at support a package of changes which contained all However, merging the funds or delaying one time, which would pay interest to of the following: (1) A sharing of the FICO the banks’ premium reduction is not the BIF members but would also be used to obligation proportionately between BIF and SAIF; answer’’. This trade association defray SAIF expenses; transferring the (2) Use of excess RTC funds as a backstop against near-term losses; and (3) A reasonable SAIF expressed support for using the net worth of mutual thrifts to SAIF; and premium differential to be paid until such time as remaining authorized and appropriated merging the SAIF with the credit union the SAIF reaches the mandated reserve ratio. funds for the RTC to capitalize the SAIF insurance fund. Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42751 III. Miscellaneous Comments pay SAIF premiums on the acquired made by commenters in response to this deposits). final rule. A. Spread From 23 Basis Points to 31 The FDIC further recognizes that a Basis Points Adoption of Final Rule differential is likely to increase The Board received few comments in As indicated above, the FDIC has competitive pressures and impede response to its question as to whether determined to retain the existing thrifts’ ability to generate capital both the current spread of 8 basis points from assessment rate schedule applicable to internally and externally. At this time, the lowest to the highest assessment members of the SAIF. The Board fully however, the FDIC must decline to rates should be retained for SAIF understands and appreciates the reduce the minimum average SAIF members. concerns raised in the comment letters assessment rate to 18 basis points. As B. Transactions Which Would Have the concerning the impending rate detailed in Sections II and IV above, the Effect of Allowing Deposits to Shift differential. Most of the solutions SAIF is grossly undercapitalized. At the From One Insurance Fund to the Other suggested by SAIF-affiliated end of the first quarter of 1995, the SAIF commenters require Congressional had a balance of $2.2 billion, or only Over 300 BIF-member institutions and action, however, and are beyond the 0.31 percent of insured deposits. That 6 trade associations commented that scope of this rulemaking procedure. balance was less than 7 percent of the steps should be taken to prohibit Nonetheless, the FDIC agrees with these assets of SAIF-insured ‘‘problem’’ transactions which would have the commenters that the difficulties facing institutions. At the current pace, and effect of allowing deposits to shift from the SAIF can only be addressed under reasonably optimistic the SAIF to the BIF, thereby depleting comprehensively through Congressional assumptions, the SAIF is unlikely to the SAIF. Approximately 42 BIF- action. Therefore, after extensive reach the minimum reserve ratio of 1.25 member institutions stated that exit and analysis of the relevant issues, the FDIC percent until the year 2002. Even entrance fees should be assessed against has informed Congress of the FDIC’s though the SAIF is grossly transactions which would have the strong support for a proposal developed undercapitalized, a sizable portion of effect of allowing deposits to shift from on an interagency basis for resolving the the SAIF’s ongoing assessments is, by the SAIF to the BIF (assuming that such problems of the SAIF.15 law, diverted to meet interest payments transactions were not otherwise subject The proposal has three components to on obligations of the FICO. On July 1 the to exit and entrance fees). A bank trade address the immediate, pressing SAIF assumed responsibility from the group commented that, among other financial problems of the SAIF: (1) The RTC for paying the costs arising from options for recapitalizing SAIF, policy SAIF would be capitalized through a any new failures of thrift institutions. makers should consider prohibiting special up-front cash assessment on These problems are exacerbated by thrifts from chartering banks for the SAIF deposits; (2) the responsibility for several additional factors, including the purpose of exiting SAIF; declaring such the FICO payments would be spread shrinkage of the SAIF assessment base institutions to be Sasser institutions that proportionally over all FDIC-insured since the SAIF was created in 1989. remain SAIF-insured; or requiring such institutions; and (3) the BIF and the Given the fund’s relatively low balance institutions to pay the equivalent of SAIF would be merged as soon as and the transfer of resolution authority exit/entrance fees and continue practicable, after a number of additional from the RTC to the SAIF on July 1, the contributing to FICO. issues related to the merger are resolved. FDIC believes that the SAIF must be Thrifts and their trade associations, In addition to the three components of built as quickly as possible to its however, noted that when significant the proposal, the FDIC and the Office of mandated reserve level. costs are involved on an ongoing basis, Thrift Supervision also recommend Having determined not to reduce the institutions and their advisors would SAIF rate to the statutory minimum making unspent RTC funds available as spend their time, energy and talent to average of 18 basis points, one other a kind of reinsurance policy against find ways to avoid these ongoing costs way to maintain parity between SAIF extraordinary, unanticipated SAIF and noted that this could leave Oakar members and BIF members would be to losses to limit the potential future costs banks and slow-moving thrifts without retain the BIF assessment rate schedule to taxpayers from the existing full faith any relief. They suggested that methods at 23–31 basis points. Few SAIF- and credit guarantee of the U.S. already existed whereby depositors at a affiliated commenters specifically urged Government that the SAIF enjoys. This thrift could be encouraged to move their such action, however. In contrast to the proposal is further explained in the deposits to an existing bank affiliate SAIF, the $23.2 billion BIF balance at Testimony of Ricki Helfer, Chairman, while the thrift would service the the end of the first quarter was 1.22 FDIC, on The Condition of the SAIF and deposits (i.e., agent branches). percent of BIF-insured deposits and 70 Related Issues, before the Committee on percent of the assets of BIF-insured C. Comments Regarding Oakar Banking, Housing, and Urban Affairs, ‘‘problem’’ institutions. The BIF Transactions U.S. Senate, July 28, 1995, and before probably reached the 1.25 minimum the Subcommittee on Financial Seven BIF-members contended that reserve ratio during the second quarter Institutions and Consumer Credit, the SAIF-assessable deposits held by of this year, although the FDIC cannot Committee on Banking and Financial BIF-member Oakar banks should be confirm this fact until the Call Reports Services, U.S. House of Representatives, assessed at a lower rate than that for the second quarter have been August 2, 1995. The proposal is imposed against SAIF member received and analyzed. For the reasons consistent with many of the suggestions institutions (apparently to reflect the set forth in the BIF rule published fact that FICO’s assessment authority 15 The Condition of the SAIF and Related Issues, elsewhere in this Federal Register, the does not extend to such banks). Other Testimony of Ricki Helfer, Chairman, FDIC, before FDIC has determined to establish a new commenters want banks and holding the Committee on Banking, Housing, and Urban assessment rate schedule of 4 to 31 basis companies that acquired SAIF-insured Affairs, U.S. Senate, July 28, 1995. The Condition points for BIF members. institutions, and thereby benefited from of the SAIF and Related Issues, Testimony of Ricki Helfer, Chairman, FDIC, before the Subcommittee Paperwork Reduction Act the savings and loan bailout to continue on Financial Institutions and Consumer Credit, to be liable to SAIF (although this is Committee on Banking and Financial Services, U.S. No collection of information pursuant already the case because these acquirers House of Representatives, August 2, 1995. to section 3504(h) of the Paperwork 42752 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations Reduction Act of 1980 (44 U.S.C. 3501 on insured depository institutions shall Register is republished for the et seq.) are contained in this proposed take effect on the first day of a calendar convenience of the reader as set forth rule. Consequently, no information has quarter. This provision was designed to below: been submitted to the Office of assist institutions by establishing a Management and Budget (OMB) for consistent date for complying with new § 327.9 Assessment rate schedules. review. regulations so that institutions would be * * * * * more regularly informed of new rules Regulatory Flexibility Analysis (d) SAIF members. (1) Subject to and be able to effectuate necessary § 327.4(c), the annual assessment rate The Board hereby certifies that the training, software, and other operational for each SAIF member shall be the rate final rule would not have a significant modifications in an orderly manner. designated in the following schedule economic impact on a substantial However, this final rule does not impose applicable to the assessment risk number of small entities within the such additional or new regulatory classification assigned by the meaning of the Regulatory Flexibility requirements, rather it retains the Corporation under § 327.4(a) to that Act (5 U.S.C. 601, et seq.). This final existing assessment rate schedule for SAIF member (the schedule utilizes the rule will not necessitate the SAIF-member institutions. The FDIC group and subgroup designations development of sophisticated has therefore determined that section specified in § 327.4(a)): recordkeeping or reporting systems by 302 of RCDRIA does not apply to this small institutions nor will small final rule. SCHEDULE institutions need to seek out the List of Subjects in 12 CFR Part 327 expertise of specialized accountants, Supervisory sub- lawyers, or managers to comply with Assessments, Bank deposit insurance, group this final rule. Therefore, the provisions Banks, banking, Financing Corporation, Capital group of that Act regarding an initial and final Savings associations. ABC regulatory flexibility analysis (Id. at 603 For the reasons set forth in the 1 ...... 23 26 29 and 604) do not apply here. preamble, a portion of part 327 of title 2 ...... 26 29 30 Riegle Community Development and 12 of the Code of Federal Regulations is 3 ...... 29 30 31 Regulatory Improvement Act of 1994 republished as set forth below: * * * * * Section 302(b) of the Riegle PART 327ÐASSESSMENTS By the order of the Board of Directors. Community Development and 1. The authority citation for part 327 Dated at Washington, D.C., this 8th day of Regulatory Improvement Act of 1994 continues to read as follows: August, 1995. (RCDRIA), 12 U.S.C. 4802(b), requires that all new regulations and Authority: 12 U.S.C. 1441, 1441b, 1817– Federal Deposit Insurance Corporation. amendments to regulations prescribed 1819. Jerry L. Langley, by a Federal banking agency which 2. Paragraph (d)(1) of § 327.9 as Executive Secretary. impose additional reporting, redesignated from paragraph (c)(1) [FR Doc. 95–20172 Filed 8–15–95; 8:45 am] disclosures, or other new requirements elsewhere in this issue of the Federal BILLING CODE 6714±01±P federal register August 16,1995 Wednesday Rule the DirectEndorsementProgram;Interim the DemonstrationandAllowingUseof Insurance Demonstration:Streamlining Home EquityConversionMortgage 24 CFRParts203and206 Housing; FederalHousingCommissioner Office oftheAssistantSecretaryfor Development Housing andUrban Department of Part V 42753 42754 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations DEPARTMENT OF HOUSING AND SUPPLEMENTARY INFORMATION: concluded that Congress does not URBAN DEVELOPMENT Background expect HECM mortgagees to attempt to comply with the disclosure Office of the Assistant Secretary for The Home Equity Conversion requirements of both the NAHA and the HousingÐFederal Housing Mortgage (HECM) Insurance new law, and that there is no need for Commissioner Demonstration was authorized by HECM mortgagees to be exempted from Section 417 of the Housing and the new law. The new law will become 24 CFR Parts 203 and 206 Community Development Act of 1987 mandatory when the Federal Reserve (42 U.S.C. 5301), which amended Board’s implementing regulations, [Docket No. FR±2958±I±01] Section 255 of the National Housing Act published on March 24, 1995, at 57 FR (12 U.S.C. 1715z–20) to permit elderly 15463, become mandatory on October 1, homeowners to borrow against the RIN 2502±AF32 1995. At that time, HECM mortgagees equity in their homes. HUD published will be expected to comply with the Home Equity Conversion Mortgage final regulations on June 9, 1989, at 54 Federal Reserve Board regulations Insurance Demonstration: FR 24823, issued HUD Handbook instead of the current HUD instructions Streamlining the Demonstration and 4235.1 for the program in August 1989, on disclosures. Until then, mortgagees Allowing Use of the Direct and immediately began processing may choose the option of compliance Endorsement Program applications for commitments to insure. with the Federal Reserve Board The regulations are codified at 24 CFR regulations as a means of complying AGENCY: Office of the Assistant part 206. Revision 1 to HUD Handbook with HUD’s instructions. Secretary for Housing—Federal Housing 4235.1 was issued in November 1994. Section 255(d)(7) of the NHA was Commissioner, HUD. This interim rule reflects ideas for amended to permit a procedure for the improving the program regulations ACTION: Interim rule. mortgagor to reserve a portion of the based on experience from the first five equity in the property for the benefit of years of the demonstration. It also SUMMARY: This interim rule amends the mortgagor or the mortgagor’s heirs. reflects HUD’s implementation of HUD’s regulations in 24 CFR parts 203 This interim rule does not implement section 334 of the Cranston-Gonzalez and 206 to simplify the Home Equity section 255(d)(7). National Affordable Housing Act Conversion Mortgage (HECM) Insurance HUD has concluded that two of the (NAHA) (42 U.S.C. 12701). An Demonstration, and to expedite the amendments to section 255 of the NHA explanation of the interim changes processing of HECMs by permitting use by section 334 of NAHA that are follows with a list of purely technical of the Direct Endorsement program. The mandatory do not require any change to amendments at the end of this section. rule implements the statutory disclosure the current part 206. New section amendments in section 334 of the Changes to HECM Regulations 255(d)(9) of the NHA requires that an insured mortgage provide for payments Cranston-Gonzalez National Affordable Section 334 of NAHA Housing Act. The rule also makes other under one of six payment plans selected changes, including technical and Section 334 of NAHA amended by the mortgagor: (1) Payments based on clarifying changes, to improve and subsections (d), (e), and (g) 1 of section a line of credit, (2) monthly payments streamline the program based on the 255 of the National Housing Act (NHA). over a term, (3) monthly payments over first five years of the demonstration. Section 255(e) was amended to require the mortgagor’s tenure in the home, (4) additional disclosures to the mortgagor a combination of (1) and (2), (5) a DATES: Effective Date: September 15, before loan closing, including combination of (1) and (3), and (6) ‘‘or 1995. projections of future loan balances and any other basis that the Secretary Comment Due Date: October 16, 1995. information that the mortgagor’s considers appropriate.’’ In addition, new section 255(d)(10) of the NHA ADDRESSES: Interested persons are liability is limited. Existing § 206.43(a) requires that an insured mortgage invited to submit comments regarding requires the mortgagee to identify and provide for conversion by the mortgagor this interim rule to the Rules Docket explain to the mortgagor the principal from one payment plan to any other Clerk, Office of General Counsel, Room provisions of the mortgage, which payment plan except that HUD may 10276, Department of Housing and include the limitations on liability. HUD limit conversion for fixed rate mortgages Urban Development, 451 Seventh Street, provided mortgagees with instructions by regulation. The payment plans SW, Washington, DC 20410–0500. on these new disclosures through designated above as (1) through (5) and Communications should refer to the Mortgagee Letter 91–1 and by making a the mortgagor’s ability to convert from above docket number and title. software package available to one plan to another are currently Facsimile (FAX) comments are not mortgagees. Section 154 of the Riegle Community authorized by part 206. HUD has no acceptable. A copy of each Development and Regulatory current plans to alter this regulatory communication submitted will be Improvement Act of 1994 (Pub.L. 103– scheme. available for public inspection and 325, September 23, 1994) imposes a HUD does not interpret the statutory copying between 7:30 a.m. and 5:30 very similar disclosure requirement for reference to conversion by the p.m. weekdays at the above address. all reverse mortgages. HUD has mortgagor as barring all HUD FOR FURTHER INFORMATION CONTACT: restrictions on conversions for Richard K. Manuel, Acting Director, 1 Section 255(g) was amended to raise the limit adjustable rate mortgages, if the Single Family Development Division, on HECM’s insured under section 255 from 2,500 restrictions do not have the effect of Office of Insured Single Family mortgages to 25,000 mortgages, and to permit HUD substantially interfering with the to insure mortgages through September 30, 1995 Housing, Room number 9272, instead of September 30, 1991. In response to these general right to choose payment plans. Department of Housing and Urban changes, HUD eliminated the reservations system For example, the existing § 206.26(b)(3) Development, 451 Seventh Street, SW, that had been adopted to insure nationwide requires conversion to a line of credit allocation of the small number of mortgages that Washington, DC 20410, telephone (202) had been initially authorized (56 FR 16002, April with restricted draws if required post- 708–2700; TDD (202) 708–9300. (These 19, 1991.) No further rulemaking is needed to closing repairs are not completed on are not toll-free telephone numbers.) implement this amendment. schedule. Restrictions on convertability Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42755 end with completion of the required insurance application process, is revised operations as reflected in the program repairs. Another specific restriction on to conform to the decision to make handbook and mortgage instruments. conversion is in the existing § 206.26(d), HECMs eligible for Direct Endorsement Sections 206.25 and 206.26 which permits the mortgagee to charge processing. Paragraph (a) of § 206.15 is a processing fee for changes in payment removed because it refers to the old The provisions of §§ 206.25 and plans, not to exceed twenty dollars. system of reservations of insurance 206.26 regarding payment calculations HUD is not making any change to these authority which was eliminated after and amounts set aside from the provisions. the HECM demonstration was expanded principal limit are revised to eliminate Section 206.26(e) of the existing by section 334 of NAHA (See final rule differences between the regulations and regulations also generally authorizes published on April 19, 1991, at 56 FR the HECM Loan Agreement. Section HUD to restrict changes in payment 16002). Paragraph (b) is removed 206.25(b)(1) of the current regulation is plans including a limitation on the because the concept of applying for reorganized to describe the payments frequency of payment changes and a mortgage insurance prior to execution of calculation in a manner to better reflect minimum notice period for a mortgagor the mortgage is obsolete under the the description in the Loan Agreement request for change. HUD has not Direct Endorsement program. Most of (§ 2.5 of the Loan Agreement) required adopted any restrictions under this paragraph (c) is retained, except by HUD Handbook 4265.1 and the section. No change is being made to this references to application for insurance operations of the HECM payments section, although any future restrictions and conditional commitments will be model software. Another change to adopted under the section will be replaced with the Direct Endorsement § 206.25(d) will more accurately reflect carefully scrutinized to ensure that they requirements. The list of documentation the size of the amount set aside for do not unduly limit the mortgagor’s in § 206.15(c) is amended to incorporate servicing charges. ability to change payment plans in the Direct Endorsement certifications at Technical changes are made to the violation of the statute. HUD has no § 203.255. The last sentence in ‘‘repair set aside’’ provisions at current plans to include in the § 206.15(c) concerning the General § 206.26(b) to clarify repair set aside regulations any limitations on Insurance Fund is moved to a new procedures as was done in the Loan convertability of fixed rate mortgages. § 206.102 in subpart C. Agreement (§ 2.9 of the Loan Agreement). The mortgagee will not be Direct Endorsement Other Program Amendments required to recalculate monthly Sections 203.3, 203.5, and 203.255 Section 206.5 payments when the repairs are completed. Instead, excess funds in the The interim rule makes the HECM Section 206.5 of the current repair set-aside will be automatically program an eligible program for Direct regulations is amended to include transferred to a new or existing line of Endorsement processing. In order for a waiver authority for subpart D regarding credit. In this way mortgagors will only mortgagee to be approved for Direct servicing to conform to the 1991 be charged a fee for changing payments Endorsement processing of HECMs, the adoption of 24 CFR 203.685 permitting if the mortgagor requested an increase to mortgagee will have to initially submit waivers of servicing requirements for monthly payments requiring a 5 HECMs as test cases to the Secretary other single family mortgage insurance recalculation. If the amount of funds in for review prior to endorsement for programs. the repair set-aside will be insufficient insurance in addition to complying with Section 206.19(f) to complete the repairs, monthly the other requirements of § 203.3. This payments will be recalculated only if requirement for 5 test cases will not A new paragraph (f) is added to there are insufficient funds in a line of apply to any mortgagee that is otherwise § 206.19 to clarify that loan advances credit to cover the repair charges. approved for Direct Endorsement and cannot exceed any maximum mortgage that has closed 50 HECMs that were amount stated in a mortgage. The HECM Section 206.27(b) insured by HUD prior to the effective program does not require that a Section 206.27(b) will be amended to date of the interim rule. maximum mortgage amount be used, clarify that any lien, in addition to the A Direct Endorsement mortgagee will but some State laws require mortgages tax deferral liens specified in the have to submit the documentation and to contain a maximum amount. This regulation, may be recorded so long as certifications listed at § 203.255 as well change will ensure that a mortgagee those liens are subordinate to the first as the certificate of counseling, the title could comply both with State law and HECM and any second HECM held by insurance commitment, and the its contractual obligation to make loan the Secretary. mortgagee’s election of the assignment advances and conforms to existing or shared premium options as required provisions in the approved mortgage Section 206.40 by § 206.15. Paragraphs (c), (d) and (e) instruments. Section 206.40 of the current of § 203.255, regarding pre- and post- regulation is amended to reflect Section 206.21 endorsement review and submission for statutory changes made by section 165 endorsement by a mortgagee other than Section 206.21 is amended to make of the Housing and Community the originating mortgagee, will apply to two corrections to paragraph (d). Development Act of 1987 (Pub. L. 100– HECMs. Sections 203.3, 203.5 and Paragraph (d) as amended, provides that 242, approved February 5, 1988) which 203.255 of the current regulations are post-loan disclosures for adjustments requires applicants and participants in amended and conforming amendments must be made 25 days before a change any HUD program to disclose to HUD are made to § 206.3 defining maximum in the interest rate, not a change in their Social Security Numbers (SSNs) or claim amount, § 206.7 regarding mortgage balance, and that disclosure be Employer Identification Numbers regulatory amendments, and § 206.13 on made of the new interest rate rather than (EINs). To be eligible for mortgage ineligible programs. of the new mortgage balance. Paragraph insurance under part 206, the mortgagor (d), as amended, also requires disclosure must meet the requirements for Section 206.15 of the date of the index used to calculate disclosure and verification of SSNs and Section 206.15 of the current the new interest rate. These changes EINs as provided by part 200, subpart U. regulations, which pertains to the will conform the rule to actual program This conforms part 206 to changes 42756 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations previously made in regulations for other regulatory restriction that will bar the mortgages to HUD under other mortgage insurance programs. Secretary from taking immediate authorities. advantage of any liberalization in the Sections 206.45(a) and 206.15 Section 206.116 size of dwellings eligible for the HECM The interim rule amends §§ 206.45(a) program. A new § 206.116 is added to codify and 206.15 to adjust the time frame for Paragraph (d) is amended to permit the policy that the initial Mortgage submission to HUD of a title insurance the HECM program to be used for pre- Insurance Premium (MIP) paid for an commitment, and to permit the 1978 dwellings with defective paint HECM is not refundable. This policy mortgagee to retain its mortgagee’s title surfaces if no child less than six years was explained in the preamble to the insurance policy in the loan servicing of age is expected to reside in the HECM final rule published on June 8, file. The requirement for a title policy dwelling. This change conforms to a 1989, at 54 FR 24823. The non- before endorsement has caused delay in provision of the Residential Lead-Based refundable MIP is a key factor in the endorsing mortgages. Section 206.45(a), Paint Hazard Reduction Act of 1992 payment model and in determination of as interim to be amended, would require which changed the childhood age of risk under the program. the Direct Endorsement mortgagee to concern for exposure to lead-based paint Section 206.125 obtain a title insurance commitment hazards from less than seven years of Three paragraphs of § 206.125 are before closing a loan and to obtain a title age to less than six years of age. insurance policy satisfactory to the amended. First, paragraph (a) will Secretary. Section 206.15 will be Section 206.107(a)(1) relieve the mortgagee from notifying the amended to remove the requirement to mortgagor when the mortgage is due and Section 206.107(a)(1) of the current submit the title insurance policy to payable because the mortgagor is regulation is amended to conform to the HUD, but mortgagees will still be deceased. While HUD expects the operating procedure announced in expected to obtain the title insurance mortgagee to attempt to provide Handbook 4235.1, Rev. 1, Ch. 10–2 A.1. policy, based on the commitment adequate notice to an executor or other The Handbook was issued with the obtained before closing, as soon as party responsible for the property before intent that HUD would make this possible and to retain the policy in the a foreclosure action is commenced, the conforming rule change at the earliest servicing file so that it is available for term ‘‘mortgagor’’ is used in the HECM opportunity and before the balances of inspection during HUD monitoring. regulations as referring only to the These requirements will still serve many mortgages would reach the original mortgagor or mortgagors, not to HUD’s objective of ensuring that any maximum claim amount. Under the their successors in interest, so that special problems regarding validity of a current rule, mortgagees have expressed notice to the mortgagor after death will HECM in the jurisdiction are known concern that they may be obligated to be an impossibility. prior to insurance endorsement. HUD is make loan advances to the mortgagor in Second, paragraph (b) is revised to particularly interested in independent excess of the maximum claim amount require an appraisal of the property assurance of the validity of title because that HUD is permitted to pay to the within 30 days of the date when the HUD may be required to become the mortgagee, while not being able to mortgagee is notified that the mortgage mortgagee upon mortgagee default and assign the mortgage to HUD until the is due and payable, or within 30 days the mortgage is non-recourse. HUD debt reached the maximum claim of the date the mortgagee becomes concludes that it is still necessary to amount. The rule will make clear that aware of the mortgagor’s death, instead depart from its practice in other single this was not HUD’s intent by providing of permitting the mortgagee to wait until family programs which do not require mortgagees with a window period for 15 days before the foreclosure sale as in any title evidence prior to endorsement assignment. The mortgage could be the current rule. An appraisal will be for mortgage insurance because of assigned when the balance is equal to or needed in any event—either to support HUD’s unique exposure in the event of greater than 98 percent of the maximum a pre-foreclosure sale or in connection title problems, but there is no need to claim amount, or when the mortgagor with the mortgagee’s bidding at delay endorsement if a title insurance has requested a payment that will result foreclosure—and the early availability commitment has been obtained by the in the mortgage balance exceeding the of an appraisal will enable the mortgagee before loan closing. maximum claim amount. mortgagor or the mortgagor’s estate to A new paragraph (a)(1)(v) is added to offer the property for sale at realistic Section 206.45 § 206.107 which will require that the terms in an attempt to avoid foreclosure. Three other changes are made to mortgage assigned to HUD under the The mortgagor may request an appraisal § 206.45 by this rule. Paragraph (b) of mortgagee’s assignment option be a first at any time if the property is being sold. that section, which currently requires lien and that the underlying security The mortgagee would no longer have to the mortgaged property to include a have good and marketable title. The request the Secretary to make an dwelling designed principally as a one- regulation incorporates § 203.353 appraisal of the property. To be family residence, is amended to permit (mortgagee certification as to lien status, consistent with the change to Direct a dwelling for such number of families mortgage amount and offsets), § 203.387 Endorsement processing, which as the Secretary determines. Such a (definition of good and marketable title) involves greater reliance on mortgagees, determination will need to be consistent and § 203.389 (title objections which the appraisal for this purpose would be with statutory constraints. Although will not destroy marketability). This ordered by the mortgagee. current section 255(d)(3) of the NHA clarifies that HUD may refuse Paragraph (b) is also revised so that does not permit an HECM on a dwelling assignment of a mortgage on a property the current requirement for the designed principally as a residence for if some or all of the loan advances made mortgagor to bear the expense applies more than one family, HUD anticipates after the mortgage was closed are not only when the mortgage is not due and the possibility of future statutory secured by a first lien under the payable. After the mortgage has been authority to insure an HECM secured by applicable state law governing lien accelerated, the mortgagor may not have a dwelling designed principally as a priority for funds advanced after funds available to pay for the appraisal residence for up to four families. HUD closing. These changes expressly adopt or there may be a substantial period of therefore has removed the unnecessary policies that apply to assignments of time before costs related to the property Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42757 can be paid by the mortgagor’s estate. (e)(2) also will be amended to provide Requirements Manual to Treasury The revised paragraph (b) therefore authority to reimburse mortgagees for Financial Manual. provides for the mortgagee to pay for the certain costs and attorney fees incurred Section 206.121 appraisal if the mortgage is due and in connection with the assignment of payable, with a right of reimbursement mortgages to the Secretary as is This section is amended to correct a from any proceeds from the sale of the currently provided for under cross-reference citation. home. If there are insufficient sales § 203.404(a)(3) for Section 203(b) Section 206.123(a)(4) proceeds, a related change in mortgages. § 206.129(d)(iv) will permit the This section is amended to include a Section 206.203 mortgagee to include the cost of the cross reference to § 206.127(a)(2). appraisal in its claim for insurance A technical amendment is made to Section 206.125(g)(3) benefits. § 206.203 to clarify that mortgagees need Third, paragraph (d) is amended to only send a statement of account for line This section is amended to include extend the time to foreclose that is of credit payments. Statements of the full text of § 204.305(b) from the allowed without specific approval by account are not required for monthly coinsurance regulations in lieu of HUD. The time is extended to six payments. New payment plans are incorporation by reference, because of months from the date of notice to the required when payments are HUD’s recent rule that terminated the mortgagor that the mortgage is due and recalculated. single family coinsurance program. payable, or from the date of the Section 206.207 Section 206.129(d)(2) mortgagor’s death if applicable, or from This section is amended to include the date that State law or Federal Section 206.207 is amended to add the full text of § 204.322(l) from the bankruptcy law will permit the title search costs to the list of allowable coinsurance regulations. Some language commencement of foreclosure. Such an post-endorsement charges by from the related § 204.305(a) is now extension will provide additional time mortgagees in the case where the included in § 206.125(g)(1). for the mortgagor or the mortgagor’s mortgage was extended under estate to sell the property. It is foreseen § 206.27(d)(10) for an additional amount Section 206.205(a) that the additional time may be of debt or additional number of years beyond the debt or term originally This section is amended to add the especially necessary where the property word ‘‘special’’ before ‘‘assessments’’. is being sold by the mortgagor’s estate covered by the mortgage. Some State or through probate proceedings. laws do not permit a lien to be Other Matters established for an indefinite amount or Section 206.129 for advance over an indefinite number Justification for Interim Rule Several technical amendments are of years, and later extension of the In general, the Department publishes made to § 206.129. Paragraph (d) is mortgage is necessary because of the a rule for public comment before issuing amended to conform the HECM claim characteristics of the HECM program. a rule for effect, in accordance with its requirements to the updated claim The section also is amended to permit own regulations on rulemaking, 24 CFR requirements for other insured single- a mortgagee to charge a mortgagor for part 10. However, part 10 does provide family mortgages issued at 57 FR 47967, property preservation expenses incurred for exceptions from that general rule October 20, 1992. A claim payment by a mortgagee in connection with where the Department finds good cause under paragraph (d), made when a vacant or abandoned properties. to omit advance notice and mortgagee acquires title or is an participation. The good cause required Technical Amendments unsuccessful bidder at foreclosure, will is satisfied when prior public procedure include the items listed in paragraphs In addition to the foregoing is ‘‘impracticable, unnecessary, or (p) and (q) of § 203.402 (HUD-approved amendments, certain minor technical contrary to the public interest.’’ (24 CFR amount paid to mortgagor for a deed-in- amendments are made to the following 10.1) The Department finds that good lieu of foreclosure, and reasonable costs sections in 24 CFR part 206. cause exists to publish this interim rule of evicting occupants), as well as the Section 206.9 for effect without first soliciting public items currently listed in the HECM comment in that prior public procedure regulation. The last sentence of This section is amended to correct the is both contrary to the public interest § 206.129(d)(2)(ii) is removed because it heading of paragraph (b). and unnecessary. is repetitive of § 203.402(p), which will Section 206.43(a) Of the numerous changes made by the be added, as noted above. The claim interim rule, the greatest immediate The section is amended to include a also will include a certification that the impact is expected to be the change to cross reference to § 206.207(b). property is undamaged by incorporating Direct Endorsement (DE) processing for the certification provisions of § 203.380. Section 206.47(a) HECM loans. DE processing permits the Section 206.129(d)(3)(ii) will This section is amended to replace the lender to close the loan without prior incorporate the inspection and phrase ‘‘minimum property standards’’ approval from the Department. It is used preservation requirements of § 203.377. with ‘‘the applicable property standards nearly exclusively for single family Paragraph (e)(1) of § 206.129 is of the Secretary’’. mortgage insurance programs other than amended with respect to claims made in the HECM program, and has proven to connection with the assignment option. Section 206.102 be an effective method of reducing the Claims will be calculated by starting This section is added to include time needed for loan approval while with the mortgage balance at the time of language currently in § 206.15, stating permitting reduced HUD field office assignment instead of the maximum that insured HECMs are obligations of staffs to deal with other matters that claim amount. This amendment is the General Insurance Fund. cannot be assigned to mortgagees. The related to the change previously potential borrowers will clearly benefit discussed that will permit assignments Section 206.113 by elimination of processing through the before the mortgage balance has reached This section is amended to reflect a HUD offices. Lenders will no longer the maximum claim amount. Paragraph name change from the Treasury Fiscal have a legal commitment for insurance 42758 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations at the time they close the loan. Docket Clerk, Office of the General Regulatory Agenda However, HUD will always endorse the Counsel, Department of Housing and This interim rule was listed as loan under Direct Endorsement if it has Urban Development Room 10276, 451 sequence number 1414 in the been processed by the lender in Seventh Street, SW, Washington, DC Department’s Semiannual Agenda of accordance with all applicable 20410. Regulations published on May 8, 1995 requirements. Lenders that follow all Executive Order 12866 (60 FR 23368, 23383) in accordance HUD requirements are under no greater with Executive Order 12866 and the risk under Direct Endorsement than if This interim rule was reviewed by the Regulatory Flexibility Act. they closed a HECM loan in reliance on Office of Management and Budget a HUD commitment. HUD has received List of Subjects (OMB) under Executive Order 12866 on numerous informal communications Regulatory Planning and Review, issued 24 CFR Part 203 from lenders endorsing a conversion to Direct Endorsement processing for the by the President on September 30, 1993. Hawaiian Natives, Home HECM program as soon as possible. Any changes made in this interim rule improvement, Indians—lands, Loan The many other changes included in as a result of that review are clearly programs—housing and community this interim rule fall into several general identified in the docket file, which is development, Mortgage insurance, categories. Many are clarifications that available for public inspection in the Reporting and recordkeeping reflect actual program operation during office of the Department’s Rules Docket requirements, Solar energy. the years the HECM program has been Clerk, Room 10276, 451 Seventh Street, 24 CFR Part 206 in effect. Others are conforming changes SW, Washington, DC. Aged, Condominiums, Loan that eliminate some unneeded and Impact on Small Entities unintended small discrepancies programs—housing and community between part 206 and comparable The Secretary, in accordance with the development, Mortgage insurance, provisions in part 203. Another category Regulatory Flexibility Act (5 U.S.C. Reporting and recordkeeping of changes reflects changes in other laws 605(b)), has reviewed this interim rule requirements. that have occurred since the original before publication and by approving it Accordingly, 24 CFR parts 203 and publication of part 206. Finally, some certifies that this interim rule will not 206 are amended as follows: changes are simple wording changes to have a significant economic impact on PART 203ÐSINGLE FAMILY remove possibility of confusion in a substantial number of small entities. MORTGAGE INSURANCE meaning. In all of these cases, HUD has The interim rule is limited to revision determined that there is no public of the Home Equity Conversion 1. The authority citation for 24 CFR benefit to a delay in effectiveness Mortgage Demonstration. Specifically, part 203 is revised to read as follows: pending a public notice and comment the requirements of the interim rule are period. There is no expansion of Authority: 12 U.S.C. 1709, 1710, 1715b, directed to making the program more regulatory burden for lenders or and 1715u; 42 U.S.C. 3535(d). In addition, efficient for participating mortgagees, borrowers. subpart C is also issued under 12 U.S.C. mortgagors and the Department. 1715u. Regulatory Reinvention Executive Order 12612, Federalism 2. In § 203.3, paragraph (b)(4) is Consistent with Executive Order revised to read as follows: 12866, and President Clinton’s The General Counsel, as the memorandum of March 4, 1995, to all Designated Official under section 6(a) of § 203.3 Approval of mortgagees for Direct Endorsement. Federal Departments and Agencies on Executive Order 12612, Federalism, has the subject of Regulatory Reinvention, determined that the policies contained * * * * * the Department is reviewing all its in this interim rule will not have (b) * * * regulations to determine whether substantial direct effects on States or (4) The mortgagee must submit certain regulations can be eliminated, their political subdivisions, or the initially 15 mortgages processed in streamlined, or consolidated with other relationship between the Federal accordance with §§ 203.5 and 203.255. regulations. As part of this review, this government and the States, or on the Separate approval is required to interim rule, at the final rule stage, may distribution of power and originate mortgages under part 206 of this chapter through the Direct undergo revisions in accordance with responsibilities among the various Endorsement program unless at least 50 the President’s regulatory reform levels of government. As a result, the mortgages closed by the mortgagee have initiatives. In addition to comments on interim rule is not subject to review been insured under part 206 of this the substance of these regulations, the under the Order. Department welcomes comments on chapter prior to September 15, 1995. how this interim rule may be made Executive Order 12606, the Family Other mortgagees who have not closed more understandable and less at least 50 mortgages under part 206 of burdensome. The General Counsel, as the this chapter must submit five (5) Home Designated Official under Executive Equity Conversion Mortgages, processed Environmental Impact Order 12606, The Family, has in accordance with §§ 203.3 and A Finding of No Significant Impact determined that this interim rule will 203.255. The documents required by with respect to the environment has not have potential for significant impact § 203.255 will be reviewed by the been made in accordance with HUD on family formation, maintenance, and Secretary and, if acceptable, regulations at 24 CFR part 50, which general well-being, and, thus, is not commitments will be issued prior to implements section 102(2)(C) of the subject to review under the order. No endorsement of the mortgages for National Environmental Policy Act of significant change in existing HUD insurance. If the underwriting and 1969 (NEPA). This Finding of No policies or programs will result from processing of these 15 mortgages (or the Significant Impact is available for public promulgation of this interim rule, as 5 Home Equity Conversion Mortgages) is inspection between 7:30 a.m. and 5:30 those policies and programs relate to satisfactory, then the mortgagee may be p.m. weekdays in the Office of the Rules family concerns. approved to close subsequent mortgages Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42759 and submit them directly for the additional documents required by and from time to time, in whole or in endorsement for insurance in § 206.15 of this chapter; and part, but amendments to subparts B and accordance with the process set forth in * * * * * C of this part shall not adversely affect § 203.255. Unsatisfactory performance (c) Pre-endorsement review for Direct the interests of a mortgagee on any by the mortgagee at this stage Endorsement. Upon submission by an mortgage to be insured for which either constitutes grounds for denial of approved mortgagee of the documents the Direct Endorsement mortgagee has participation in the program, or for required by paragraph (b) of this section, approved the mortgagor and all terms continued pre-endorsement review of a the Secretary will review the documents and conditions of the mortgage or the mortgagee’s submissions. If and determine that: Secretary has made a commitment to participation in the program is denied, * * * * * insure. Such amendments shall not such denial is effective immediately and (3) The stated mortgage amount does adversely affect the interests of a may be appealed in accordance with the not exceed the maximum mortgage mortgagor in the case of a default by a procedures set forth in paragraph (d)(2) amount for the area as most recently mortgagee where the Secretary makes of this section. Unsatisfactory announced by the Secretary, except for payments to the mortgagor. 9. In § 206.9, the paragraph heading of performance solely with respect to mortgages under 24 CFR part 206; mortgages under 24 CFR part 206 may, paragraph (b), is revised to read as at the option of the Secretary, be * * * * * follows: grounds for denial of participation or for PART 206ÐHOME EQUITY § 206.9 Eligible mortgagees. continued pre-endorsement review for CONVERSION MORTGAGE * * * * * 24 CFR part 206 mortgages without INSURANCE affecting the mortgagee’s processing of (b) HUD approved mortgagees. mortgages under other parts. 5. The authority citation for part 206 * * * * * * * * * * is revised to read as follows: 10. The title of subpart B is revised to read ‘‘Subpart B—Eligibility; 3. In § 203.5, paragraph (b) is revised Authority: 12 U.S.C. 1715b, 1715z-1720; 42 to read as follows: U.S.C. 3535(d). Endorsement.’’ § 203.5 Direct Endorsement process. 6. In § 206.3, the definition of § 206.13 [Removed] * * * * * ‘‘Maximum claim amount’’ is revised to 11. Section 206.13 is removed. (b) Eligible programs. All single read as follows: 12. Section 206.15 is revised to read as follows: family mortgages authorized for § 206.3 Definitions. insurance under the National Housing § 206.15 Endorsement for insurance. Act shall be originated through the * * * * * Maximum claim amount means the Mortgages originated under this part Direct Endorsement program, except must be endorsed through the Direct mortgages authorized under sections lesser of the appraised value of the property or maximum dollar amount for Endorsement program under § 203.5 of 203(n), 203(p), 213(d), 221(h), 221(i), this chapter, except as provided in 225, 233, 237, 809 or 810 of the National an area established by the Secretary for a one-family residence under section § 203.1 of this chapter. The mortgagee Housing Act, or any other insurance shall submit to the Secretary, within 60 programs announced by Federal 203(b)(2) of the National Housing Act (as adjusted where applicable under days after the date of closing of the loan Register notice or as provided in or such additional time as permitted by § 203.1. The provision contained in section 214 of the National Housing Act). Both the appraised value and the the Secretary, properly completed § 221.55 of this chapter regarding documentation and certifications as deferred sales to displaced families is maximum dollar amount for the area shall be as of the date the Direct listed in § 203.255 of this chapter and not available in the Direct Endorsement the certificate received by the mortgagor program. Endorsement underwriter receives the appraisal report. Closing costs shall not from the counseling entity that the * * * * * be taken into account in determining mortgagor has received counseling as 4. Section 203.255 is amended by: appraised value. Appraised value shall required under § 206.41, a copy of the a. Revising the last sentence of be determined by an appraisal title insurance commitment satisfactory paragraph (b)(11); to the Secretary (or other acceptable title b. Redesignating the existing performed in accordance with part 267 of this chapter. evidence if the Secretary has paragraph (b)(12) as paragraph (b)(13); determined not to require title insurance c. Adding a new paragraph (b)(12); * * * * * under § 206.45(a)), the mortgagee’s and 7. Section 206.5 is amended by d. Revising paragraph (c) introductory revising the first sentence, to read as election of either the assignment or text and paragraph (c)(3), to read as follows: shared premium option under follows: § 206.107, and any other documentation § 206.5 Waivers. required by the Secretary. Sections § 203.255 Insurance of mortgages. The Secretary, in an individual case, 203.255(c), (d) and (e) of this chapter, * * * * * may waive any requirement of subparts pertaining to pre-endorsement review, (b) * * * B and D of this part not required by submission for endorsement by (11) * * * The certification shall statute if the Secretary finds that purchasing mortgagee, and post- incorporate each of the mortgagee application of such requirement will endorsement review for Direct certification items which apply to the adversely affect achievement of the Endorsement, apply to mortgages under mortgage loan submitted for purposes of this program. * ** this part. If the mortgagee has complied endorsement, as set forth in the 8. Section 206.7 is revised to read as with the Direct Endorsement applicable handbook or similar follows: requirements of §§ 203.3, 203.5 and publication that is distributed to all 203.255 of this chapter and the Direct Endorsement mortgagees; § 206.7 Effect of amendments. requirements of this part, and the (12) For a Home Equity Conversion The regulations in this part may be mortgage is determined to be eligible, Mortgage under part 206 of this chapter, amended by the Secretary at any time the Secretary will endorse the mortgage 42760 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations for insurance by issuance of a Mortgage (v) All MIP, or monthly charges due with a copy of the mortgage forms. At Insurance Certificate. to the Secretary in lieu of mortgage that time the mortgagee shall identify 13. In § 206.19, a new paragraph (f) is insurance premiums due through the and explain to the mortgagor the added to read as follows: payment term; and principal provisions of the mortgage, (vi) All interest through the remainder including the fact that the liability of the § 206.19 Payment options. of the payment term. The expected homeowner is limited under the * * * * * average mortgage interest rate shall be mortgage to the value of the property (f) Payments limited by lien amount. used for this purpose. and whether the mortgagee will collect No payments shall be made under any servicing fees under § 206.207(b). of the payment options, * * * * * notwithstanding anything to the 16. In § 206.26, paragraphs (b)(1) and * * * * * contrary in this section or in § 206.25, (b)(2) are revised to read as follows: (c) Disclosure. The mortgagee must in an amount which shall cause the comply with any regulations issued by § 206.26 Change in payment option. the Federal Reserve Board to implement mortgage balance after the payment to * * * * * exceed any maximum mortgage amount section 154 of the Riegle Community (b) * * * Development and Regulatory stated in the security instruments or to (1) If initial repairs after closing under otherwise exceed the amount secured by Improvement Act of 1994 (15 U.S.C. § 206.47 are completed without using all 1648). a first lien. of the funds set aside for repairs, the * * * * * 14. In § 206.21, paragraphs (c)(2) and mortgagee shall transfer the remaining 20. In § 206.45, paragraphs (a), (b), (d) are revised to read as follows: amount to a line of credit and inform and (d) are revised to read as follows: § 206.21 Interest rate. the mortgagor of the sum available to be * * * * * drawn. § 206.45 Eligible properties. (c) * * * (2) If repairs after closing under (a) Title. A mortgage must be on real (2) Compliance with pre-loan § 206.47 cannot be completed with the estate held in fee simple, or on a disclosure provisions of 12 CFR part 226 funds set aside for repairs, the leasehold under a lease for not less than (Truth in Lending) shall constitute full mortgagee may advance additional 99 years which is renewable, or under compliance with paragraph (c)(1) of this funds to complete repairs from an a lease having a remaining period of not section. existing line of credit. If a line of credit less than 50 years beyond the date of the (d) Post-loan disclosure. At least 25 is not sufficient to make the advance or 100th birthday of the youngest days before any adjustment to the if no line of credit exists, future monthly mortgagor. The mortgagee shall obtain a interest rate may occur, the mortgagee payments shall be recalculated for use mortgagee’s title insurance policy must advise the mortgagor of the as a line of credit in accordance with satisfactory to the Secretary. If the following: § 206.25. Secretary determines that title insurance (1) The current index amount; * * * * * for reverse mortgages is not available for (2) The date of publication of the 17. In § 206.27, paragraph (b)(3) is reasonable rates in a State, then the index; and revised to read as follows: Secretary may specify other acceptable (3) The new interest rate. forms of title evidence in lieu of title § 206.27 Mortgage provisions. * * * * * insurance. 15. In § 206.25, paragraph (b)(1) is * * * * * (b) Type of property. The property revised to read as follows: (b) * * * shall include a dwelling designed (3) The mortgagor shall not participate § 206.25 Calculation of payments. principally as a residence for one family in a real estate tax deferral program or or such additional families as the * * * * * permit any liens to be recorded against Secretary shall determine. (b) Monthly payments—term option. the property, unless such liens are (1) Using factors provided by the * * * * * subordinate to the insured mortgage and (d) Lead-based paint poisoning Secretary, the mortgagee shall calculate any second mortgage held by the the monthly payment so that the sum of prevention. If the appraiser of a Secretary. dwelling constructed prior to 1978 finds paragraphs (b)(1)(i) or (b)(1)(ii) of this * * * * * section added to paragraphs (b)(1)(iii), defective paint surfaces, § 200.810(d) of 18. A new § 206.40 is added to read this chapter shall apply unless the (b)(1)(iv), (b)(1)(v) and (b)(1)(vi) of this as follows: section shall be equal to the principal mortgagor certifies that no child who is limit at the end of the payment term: § 206.40 Disclosure and verification of less than six years of age resides or is (i) An initial payment under Social Security and Employer Identification expected to reside in the dwelling. paragraph (a) of this section plus any Numbers. * * * * * initial servicing charge set aside under The mortgagor must meet the 21. In § 206.47, paragraph (a) is § 206.19(d); or requirements for the disclosure and revised to read as follows: (ii) The mortgage balance at the time verification of Social Security and § 206.47 Property standards; repair work. of a change in payments option in Employer Identification Numbers, as accordance with § 206.26, plus any provided by part 200, subpart U, of this (a) Need for repairs. Properties must remaining servicing charge set aside chapter. meet the applicable property standards under § 206.19(d); and 19. In § 206.43, paragraph (a) is of the Secretary in order to be eligible. (iii) The portion of the principal limit revised, and a new paragraph (c) is Properties which do not meet the set aside as a line of credit including added, to read as follows: property standards must be repaired in any set asides for repairs and first year order to ensure that the repaired property charges under § 206.19(d); and § 206.43 Information to mortgagor. property will serve as adequate security (iv) All monthly payments due (a) Explanation of mortgage terms. At for the insured mortgage. through the payment term, including the time the mortgagee provides the * * * * * funds withheld for payment of property mortgagor with a loan application, the 22. A new § 206.102 is added under charges under § 206.205; and mortgagee shall provide each mortgagor the undesignated center heading ‘‘Sale, Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations 42761 Assignment and Pledge’’ to read as § 206.133(c) and if a second mortgage mortgage is due and payable, the follows: has been recorded when required by mortgagee shall commence foreclosure § 206.27(d), all payments to the within six months after the expiration of § 206.102 General Insurance Fund. mortgagor by the Secretary (except late the time during which such foreclosure Mortgages insured under this part charges) will be secured by the second is prohibited by such laws. shall be obligations of the General mortgage. * * * * * * * * Insurance Fund. 27. In § 206.123, paragraph (a)(4) is (g) Sale of the acquired property. (1) 23. In § 206.107, paragraph (a)(1) revised to read as follows: introductory text is revised and a new Upon acquisition of the property by paragraph (a)(1)(v) is added, to read as § 206.123 Claim procedures in general. foreclosure or deed in lieu of follows: (a) * * * foreclosure, the mortgagee shall take (4) The mortgagee acquires title to the possession of, preserve and repair the § 206.107 Mortgagee election of property by foreclosure or a deed in lieu property and shall make diligent efforts assignment or shared premium option. of foreclosure and sells the property as to sell the property within six months (a) * * * provided in § 206.125(g) for an amount from the date the mortgagee acquired (1) Under the assignment option, the which does not satisfy the mortgage the property. Repairs shall not exceed mortgagee shall have the option of balance or fails to sell the property as those required by local law and, in cases assigning the mortgage to the Secretary provided in § 206.127(a)(2); or where the sale is made with a mortgage if the mortgage balance is equal to or insured by the Secretary or guaranteed greater than 98 percent of the maximum * * * * * 28. Section 206.125 is amended by by the Secretary of Veterans Affairs, claim amount, or the mortgagor has revising the first sentence of paragraph those necessary to meet the objectives of requested a payment which exceeds the (a)(2) and paragraphs (b), (d)(1), (d)(2), the property standards required for difference between the maximum claim (g)(1), and (g)(3), to read as follows: mortgages insured by the Secretary. No amount and the mortgage balance and: other repairs shall be made without the * * * * * § 206.125 Acquisition and sale of the specific advance approval of the (v) The mortgage is a first lien of property. Secretary. The mortgagee shall sell the record and title to the property securing (a) * * * property for an amount not less than the the mortgage is good and marketable. (2) After notifying the Secretary, and appraised value (as provided under The provisions of § 203.353 of this receiving approval of the Secretary paragraph (b) of this section) unless chapter pertaining to mortgagee when needed, the mortgagee shall notify written permission is obtained from the certifications, § 203.387 of this chapter the mortgagor that the mortgage is due Secretary authorizing a sale at a lower pertaining to title evidence, and and payable, unless the mortgage is due price. § 203.389 of this chapter pertaining to and payable by reason of the * * * * * waived title objections also apply. mortgagor’s death. * ** (3) The mortgagee shall not enter into * * * * * * * * * * a contract for the preservation, repair or 24. In § 206.113, paragraph (b) is (b) Appraisal. The mortgagee shall sale of the property with any officer, revised to read as follows: obtain an appraisal of the property no employee, owner of ten percent or more later than 30 days after the mortgagor is interest in the mortgagee or with any § 206.113 Late charge and interest. notified that the mortgage is due and other person or organization having an * * * * * payable, or no later than 30 days after identity of interest with the mortgagee (b) Interest. In addition to any late the mortgagee becomes aware of the or with any relative of such officer, charge provided in paragraph (a) of this mortgagor’s death, or upon the employee, owner or person. section, the mortgagee shall pay interest mortgagor’s request in connection with on any initial MIP remitted to the * * * * * a pending sale. The property shall be 29. Section 206.129 is amended by Secretary more than 30 days after appraised no later than 15 days before revising paragraphs (d)(2)(i), (d)(2)(ii), closing, and interest on any monthly a foreclosure sale. The appraisal shall be (d)(2)(iv), (d)(3)(ii), (e)(1), and (e)(2), and MIP remitted to the Secretary more than at the mortgagor’s expense unless the by adding paragraphs (d)(2)(v) and 30 days after the payment date mortgage is due and payable. If the (d)(2)(vi) to read as follows: prescribed in § 206.111(b). Such interest mortgage is due and payable, the rate shall be paid at a rate set in appraisal shall be at the mortgagee’s § 206.129 Payment of claim. conformity with the Treasury Financial expense but the mortgagee shall have a * * * * * Manual. right to be reimbursed out of the (d) * * * * * * * * proceeds of any sale by the mortgagor. (2) The claim shall include the 25. A new § 206.116 is added before * * * * * following items: the undesignated center heading ‘‘HUD (d) Initiation of foreclosure. (1) The (i) Items listed in § 203.402(a), (b), (c), RESPONSIBILITY TO MORTGAGORS’’, mortgagee shall commence foreclosure (d), (e), (g), (j), (p) and (q) of this chapter. to read as follows: of the mortgage within six months of (ii) Foreclosure costs or costs of acquiring the property actually paid by § 206.116 Refunds. giving notice to the mortgagor that the mortgage is due and payable, or six the mortgagee and approved by the No amount of the initial MIP shall be Secretary, in an amount not in excess of refundable. months from the date of the mortgagor’s death if applicable, or within such two-thirds of such costs or $75.00, 26. Section 206.121 is amended by which ever is greater. revising the first sentence of paragraph additional time as may be approved by (c), to read as follows: the Secretary. * * * * * (2) If the laws of the State in which (iv) Costs of any appraisal obtained § 206.121 Secretary authorized to make the mortgaged property is located or if under §§ 206.125 or 206.127, provided payments. Federal bankruptcy law does not permit that the appraisal was obtained after the * * * * * the commencement of the foreclosure mortgage became due and payable and (c) Second mortgage. If the contract of within six months from the date of the that the mortgagee is not otherwise insurance is terminated as provided in notice to the mortgagor that the reimbursed for such costs. 42762 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Rules and Regulations (v) Reasonable payments made by the §§ 203.377, 203.378 and 203.379 of this payment plan every time it recalculates mortgagee for: chapter. monthly payments. (A) Preservation and maintenance of (2) The claim shall also include: * * * * * the property; (i) Reimbursement for such costs and 31. In § 206.205, paragraph (a) is (B) Repairs necessary to meet the revised to read as follows: objectives of the property standards attorney’s fees as the Secretary finds required for mortgages insured by the were properly incurred in connection § 206.205 Property charges. with the assignment of the mortgage to Secretary, those required by local law, (a) General. The mortgagor shall pay the Secretary, and and such additional repairs as may be all property charges consisting of taxes, specifically approved in advance by the (ii) An amount equivalent to the ground rents, flood and hazard Commissioner; and interest allowance which will have been insurance premiums, and special (C) Expenses in connection with the earned from the date the mortgage was assessments in a timely manner and sale of the property including a sales assigned to the Secretary to the date the shall provide evidence of payment to commission at the rate customarily paid claim is paid, if the claim had been paid the mortgagee as required in the in the community and, if the sale to the in debentures, except that if the mortgage. buyer involves a mortgage insured by mortgagee fails to meet any of the * * * * * the Secretary or guaranteed by the requirements of § 206.127(c), or 32. In § 206.207, paragraph (a) is Secretary of Veterans Affairs, a discount § 206.131 if applicable, within the revised to read as follows: at a rate not to exceed the maximum specified time and in a manner allowable by the Commissioner, as of satisfactory to the Secretary (or within § 206.207 Allowable charges and fees after the date of execution of the discounted such further time as the secretary may endorsement. loan, on sales of properties acquired by approve in writing), the interest (a) Reasonable and customary the Commissioner pursuant to allowance in the payment of the claim charges. The mortgagee may collect §§ 203.295 through 203.426 of this shall be computed only to the date on reasonable and customary charges and chapter. which the particular required action fees from the mortgagor after insurance (vi) A certification that the property is should have been taken or to which it endorsement by adding them to the undamaged in accordance with was extended. The provisions of mortgage balance, but only for: items § 203.380 of this chapter. §§ 203.405 through 203.411 of this listed in § 203.552(a)(6), (9), (11), (13) (3) * * * chapter pertaining to debentures are and (14) of this chapter; items (ii) Any adjustment for damage or incorporated by reference. authorized by the Secretary under neglect to the property pursuant to * * * * * § 203.552(a)(12) of this chapter, or as §§ 203.377, 203.378, and 203.379 of this 30. In § 206.203, paragraph (b) is provided at § 206.26(d); or charges and chapter. fees related to additional documents (e) * * * revised to read as follows: (1) When a mortgagee assigns a described in § 206.27(b)(10) and related § 206.203 Providing information. mortgage which is eligible for title search costs. assignment under § 206.107(a)(1), the * * * * * * * * * * amount of payment shall be computed (b) Line of credit and payment change Dated: July 13, 1995. by subtracting from the mortgage statements. The mortgagee shall provide Jeanne K. Engel, balance on the date of assignment the the mortgagor with a statement of the General Deputy, Assistant Secretary for items set forth in § 203.404(b) of this account every time it makes a line of Housing—Federal Housing Commissioner. chapter and any adjustments for damage credit payment. The mortgagee shall [FR Doc. 95–20221 Filed 8–15–95; 8:45 am] or neglect to the property pursuant to provide the mortgagor with a new BILLING CODE 4210±27±P federal register August 16,1995 Wednesday Proposed Rule Advanced QualificationProgram; 14 CFRPart61,etal. Federal AviationAdministration Transportation Department of Part VI 42763 42764 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules DEPARTMENT OF TRANSPORTATION factors problems and to increase the rather than using specific programmed safety benefits derived from the hours. (7) Require Cockpit Resource Federal Aviation Administration simulation. At the urging of the air Management Training and encourage transportation industry, the FAA greater use of Line-Oriented Flight 14 CFR Parts 61, 63, 65, 108, 121, and addressed the hardware issue first. This Training. Specific recommendations 135 effort culminated in 1980 in the were listed regarding regulatory changes [Docket No. 25804, Notice No. 95±13] development of the Advanced and were separated into those changes Simulation Program, set forth in part which should be incorporated into the RIN 2120±AF00 121, Appendix H. SFAR and those in an accompanying Since then, the FAA has continued to Advanced Qualification Program Advisory Circular. pursue approaches for the redesign of In June of 1988, the National AGENCY: Federal Aviation training programs to increase the Transportation Safety Board (NTSB) Administration (FAA), DOT. benefits of Advanced Simulation and to issued a Safety Recommendation (A– ACTION: Notice of proposed rulemaking. deal with the increasing complexity of 88–71) on the subject of CRM training. cockpit human factors. The recommendation stemmed from an SUMMARY: The FAA proposes to On August 27, 1987, FAA NTSB accident investigation of a establish a new termination date for Administrator McArtor addressed the Northwest Airline crash on August 16, Special Federal Aviation Regulation chief pilots and certain executives of 1987, in which 148 passengers, 6 (SFAR) No. 58 (55 FR 40275; Oct. 2, many air carriers at a meeting held in crewmembers, and 2 people on the 1990), which provides for the approval Kansas City. One of the issues discussed ground were killed. of an alternate method (known as at the meeting focused on flight The NTSB noted that both ‘‘Advanced Qualification Program’’ or crewmember performance issues. This crewmembers had received single- ‘‘AQP’’) for qualifying, training and meeting led to the creation of a Joint crewmember training during their last certifying, and otherwise ensuring the Government-Industry Task Force on simulator training and proficiency competency of crewmembers, aircraft flight crew performance. It was checks. In addition, the last CRM dispatchers, other operations personnel, comprised of representatives from major training they had received was 3.5 hours instructors, and evaluators who are air carriers and air carrier associations, of ground school (general) CRM training required to be trained or qualified under flight crewmember associations, in 1983. As a result of its investigation, parts 121 and 135 of the FAR. This commuter air carriers and regional the NTSB recommended that all part proposed extension is necessary to airline associations, and government 121 carriers: establish a new termination date for organizations. On September 10, 1987, Review initial and recurrent flightcrew SFAR 58 to allow time for the FAA to the task force met at the Air Transport training programs to ensure that they include complete the rulemaking process that Association’s headquarters to identify simulator or aircraft training exercises which will incorporate SFAR 58 into the and discuss flight crewmember involve cockpit resource management and Federal Aviation Regulations (FAR). performance issues. Working groups in active coordination of all crewmember The current termination date for SFAR three major areas were formed: (1) man/ trainees and which will permit evaluation of machine interface, (2) flight crew performance and adherence to those 58 is October 2, 1995. crew coordination procedures. DATE: Comments must be received on or crewmember training, and (3) operating In response to the recommendations before September 5, 1995. environment. Each working group submitted a report and from the Joint Task Force and from the ADDRESS: Send or deliver comments on NTSB, the FAA, in October 1991, this notice in duplicate to: Federal recommendations to the Joint Task Force. On June 8, 1988, the published SFAR 58, Advanced Aviation Administration, Office of the recommendations of the Joint Task Qualification Program (AQP), which Chief Counsel, Attention: Rules Docket Force were presented to Administrator addresses all of the above (AGC–10), Room 915G, Docket No. McArtor. recommendations. The FAA also 25804, 800 Independence Avenue, SW., The major substantive published an Advisory Circular on AQP Washington, DC 20591. Comments must recommendations to the Administrator which describes an acceptable be marked Docket No. 25804. Comments from the flight crewmember training methodology by which the provisions of may be examined in the Rules Docket working group were the following: (1) the SFAR are achieved. Under SFAR 58 between 8:30 a.m. and 5 p.m. on Require part 135 commuters whose certificated air carriers, as well as weekdays, except Federal holidays. airplane operations require two pilots to training centers they employ, are FOR FURTHER INFORMATION CONTACT: comply with part 121 training, provided with a regulatory alternative Mr. John Allen, Advanced Qualification checking, qualification and record for training, checking, qualifying, and Program Branch (AFS–230), Air keeping requirements. (2) Provide for a certifying aircrew personnel subject to Transportation Division, Office of Flight Special Federal Aviation Regulation the provisions of FAR parts 121 and Standards, Federal Aviation (SFAR) and Advisory Circular to permit 135. Administration, P.O. Box 20027, Dulles development of innovative training Air carrier participation in AQP is International Airport, Washington, DC programs. (3) Establish a National Air entirely voluntary. Carriers electing not 20041–2027; telephone (703) 661–0260. Carrier Training Program Office which to participate may continue to operate SUPPLEMENTARY INFORMATION: provides training program oversight at under the traditional FAA provisions for the national level. (4) Require seconds- training and checking. The long range Background in-command to satisfactorily perform advantages to participation, however, In 1975, the FAA began to address their duties under the supervision of are numerous. The regulatory provisions two issues in part 121 pilot training and check airmen during operating of AQP offer the flexibility to tailor checking. One issue was the hardware experience. (5) Require all training to be training and certification activities to a requirements needed for total accomplished through a certificate carrier’s particular needs and simulation. The other issue was the holder’s training program. (6) Provide operational circumstances. They redesign of training programs to deal for approval of training programs based encourage innovation in the with increasingly complex human on course content and training aids development of training strategies. They Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 42765 include wide latitude in choice of program; 2) is voluntary; and 3) has Procedures (44 FR 11304; February 26, training methods and media. They become an important means for some 1979). permit the use of flight training devices operators to comply with the training List of Subjects for training and checking on many tasks requirements, the FAA finds that a full which historically have been detailed regulatory evaluation is not 14 CFR Part 61 accomplished in airplane simulators. necessary. Air safety, Air transportation, They provide an approved means for the International Trade Impact Analysis Aviation Safety, Safety. applicant to replace FAA mandated uniform qualification standards with The proposed rule would not 14 CFR Part 63 carrier proposed alternatives tailored to constitute a barrier to international Air Safety, Air Transportation, specific aircraft. They permit carriers, trade, including the export of American Airmen, Aviation safety, Safety, whose operations include a mixture of goods and services to foreign countries Transportation. parts 135 and 121, to operate under a and the import of foreign goods and single regulatory set of requirements for services into the United States. Since air 14 CFR Part 65 training and checking. They permit the carriers will not participate in AQP Airman, Aviation safety, Air applicant to establish an annual training unless it was in their best interest, they transportation, Aircraft. and checking schedule for all personnel, likewise will not participate if it would including pilots-in-command (PIC), and impose a competitive disadvantage on 14 CFR Part 108 provide a basis for extending that them. Also, the concept of AQP is being Airplane operator security, Aviation interval under certain circumstances. embraced by foreign operators as well. safety, Air transportation, Air carriers, From an FAA perspective, the Airlines, Security measures, overriding advantage of AQP is quality Regulatory Flexibility Determination Transportation, Weapons. of training. AQP provides a systematic The Regulatory Flexibility Act of 1980 14 CFR Part 121 basis for matching technology to (RFA) was enacted by Congress to training requirements and for approving ensure that small entities are not Aircraft pilots, Airmen, Aviation training program content based on unnecessarily and disproportionately safety, Pilots, Safety. relevance to operational performance. burdened by Federal regulations. The 14 CFR Part 135 The FAA’s goal for this new program is RFA requires a Regulatory Flexibility to improve safety through improved Analysis if a rule will have ‘‘significant Air carriers, Air transportation, training. economic impact on a substantial Airmen, Aviation safety, Safety, Pilots. The initial goal of the SFAR was to number of small entities.’’ FAA Order The Amendment improve flight crew performance by 2100.14A outlines the FAA’s procedures providing alternative means of and criteria for implementing the RFA. In consideration of the foregoing, complying with certain current Since this proposal would extend what SFAR 58 (14 CFR parts 65, 108, 121, and provisions in the Federal Aviation has become an important means for 135) of the Federal Aviation Regulations Regulations which may inhibit some air carriers to comply with is amended as follows: 1. The authority citation for part 61 is innovative use of some modern training requirements, the extension revised to read as follows: technology that could facilitate the will not impose costs above those that training of flight crewmembers. The air carriers are already incurring, and Authority: 49 U.S.C. 106(g); 40113, 44701– SFAR has encouraged carriers to certainly not above what they would 44703, 44707, 44710, 44712, 44714, 44716, become innovative in their approach to incur from adopting a part 121 or part 44717, 44722, 45303. training. Based on the aviation industry 135 training program. Thus, the rule if 2. The authority citation for part 63 is participation and enthusiasm in AQP, issued, will not impose a significant revised to read as follows: the extension of SFAR 58 is necessary economic impact on a substantial Authority: 49 U.S.C. 106(g); 40108, 40113, until the rulemaking process codifies number of small entities. 40114, 44701–44703, 44710, 44712, 44714, AQP as a permanent regulation. Federalism Implications 44716, 44717, 44722, 45302, 46104. Benefit/Cost Analysis 3. The authority citation for part 65 is The regulations proposed herein revised to read as follows: AQP is not mandatory. Consequently, would not have substantial direct effects those operators who choose to on the states, on the relationship Authority: 49 U.S.C. 106(g); 40113, 44701– participate in the program would do so between the national government and 44703, 44710, 44712, 44714, 44716, 44717, only if it was in their best interest. the states, or on the distribution of 447222, 45303. Enough operators have found it in their power and responsibilities among the 4. The authority citation for part 108 best interest that AQP has become an various levels of government. Thus, in is revised to read as follows: important means for meeting the accordance with Executive Order 12612, Authority: 49 U.S.C. 106(g); 40108, 40113, requirements for air carrier training it is determined that such a regulation 40114, 40119, 44701, 44702, 44705, 44712, programs. As of March 1995, 18 carriers does not have federalism implications 44714, 44716, 44717, 44722, 44901–44903, and 2 manufacturers have either applied warranting preparation of a Federalism 44906, 44912, 44935–44938, 45302, 46104, to participate or are already Assessment. 48107. participating in the program. AQP gives Conclusion 5. The authority citation for part 121 air carriers flexibility in meeting the continues to read as follows: safety goals of the training programs in The FAA has determined that this parts 121 and 135 without sacrificing document involves a proposal that Authority: 49 U.S.C. 106(g), 40101, 40105, any of the safety benefits derived from imposes no additional burden on any 40113, 44701–44702, 44704–44705. those programs. Thus, extending AQP person. Accordingly, it has been 6. The authority citation for part 135 for another 5 years would not impose determined that the action does not continues to read as follows: any additional costs nor decrease the involve a major rule under Executive Authority: 49 U.S.C. 106(g), 1153, 40101, present level of safety. Because this Order 12291; however, it is significant 40105, 44113, 44701–44705, 44707–44717, proposal—1) is extending an existing under DOT Regulatory Policies and 44722, 45303. 42766 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Proposed Rules 7. SFAR 58 is amended by revising the expiration date in paragraph 13. * * * * * 13. Expiration. This Special Federal Aviation Regulation terminates on October 2, 2000 unless sooner terminated. Issued in Washington, D.C. on Friday, August 11, 1995. Thomas C. Accardi, Director, Flight Standards Service. [FR Doc. 95–20406 Filed 8–14–95; 12:54 pm] BILLING CODE 4910±13±M i Reader Aids Federal Register Vol. 60, No. 158 Wednesday, August 16, 1995 CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING AUGUST Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Public inspection announcement line 523±5215 the revision date of each title. 353...... 42472 Laws 3 CFR 354...... 42472 Proclamations: Public Laws Update (numbers, dates, etc.) 523±6641 987...... 40116 6814...... 40451 1030...... 41833 Presidential Documents 6815...... 40736 1065...... 41833 Executive orders and proclamations 523±5227 Executive Orders: 1068...... 41833 The United States Government Manual July 9, 1910 (Revoked 1076...... 41833 in part by P.L.O. 523±5227 1079...... 41833 7153) ...... 42067 1280...... 40313 Other Services 12967...... 39623 Electronic and on-line services (voice) 523±4534 12968...... 40245 8 CFR 12969...... 40989 Privacy Act Compilation 523±3187 103...... 40064 Administrative Orders: TDD for the hearing impaired 523±5229 212...... 40064 Memorandums: 217...... 40064 August 8, 1995 ...... 41791 235...... 40064 ELECTRONIC BULLETIN BOARD August 10, 1995 ...... 42023 264...... 40064 Free Electronic Bulletin Board service for Public Law numbers, Presidential Determinations: 286...... 40064 Federal Register finding aids, and list of documents on public No. 95±32 of July 28, inspection. 202±275±0920 1995 ...... 40255 9 CFR No. 95±33 of July 31, 160...... 39840 FAX-ON-DEMAND 1995 ...... 40257 161...... 39840 You may access our Fax-On-Demand service. You only need a fax 4 CFR Proposed Rules: machine and there is no charge for the service except for long 21...... 40737 94...... 39890 distance telephone charges the user may incur. The list of 308...... 41029 documents on public inspection and the daily Federal Register’s 5 CFR 310...... 41029 table of contents are available using this service. The document 318...... 41029 numbers are 7050-Public Inspection list and 7051-Table of 316...... 39101 532...... 40744 320...... 41029 Contents list. The public inspection list will be updated 325...... 41029 immediately for documents filed on an emergency basis. 581...... 42425 1201...... 40744 326...... 41029 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON Proposed Rules: 327...... 41029 FILE AND NOT THE ACTUAL DOCUMENT. Documents on 2421...... 39878 381...... 41029 public inspection may be viewed and copied in our office located 2422...... 39878 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 10 CFR telephone number is: 301±713±6905 7 CFR Proposed Rules: 51...... 39241 20...... 40117 FEDERAL REGISTER PAGES AND DATES, AUGUST 301 ...... 39101, 39835, 40053, 30...... 40117 40993 40...... 40117 39101±39240...... 1 319...... 39101 50...... 40117 39241±39624...... 2 400...... 40054, 40055 51...... 40117 39625±39834...... 3 401...... 40055 60...... 42079 39835±40052...... 4 402...... 40055 70...... 40117 40053±40258...... 7 404...... 40055 72...... 40117, 42079 40259±40452...... 8 800...... 39242 73...... 42079 802...... 42429 75...... 42079 40453±40736...... 9 905...... 40056 490...... 40539 40737±40992...... 10 922...... 39104 600...... 40323 40993±41792...... 11 923...... 39104 41793±42024...... 14 924...... 39104 11 CFR 42025±42424...... 15 929...... 40745 106...... 42429 42425±42766...... 16 931...... 40058 9002...... 42429 948...... 39105, 40259 9003...... 42429 959...... 40747 9004...... 42429 981...... 40059 9006...... 42429 982...... 40061 9007...... 42429 984...... 40063 9008...... 42429 989...... 39837 9032...... 42429 993...... 39107 9033...... 42429 1126...... 40260 9034...... 42429 Proposed Rules: 9036...... 42429 58...... 40115 9037...... 42429 273...... 40311 9038...... 42429 319...... 39888, 39889 9039...... 42429 ii Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Reader Aids 12 CFR 17 CFR 26 CFR 242...... 40569, 40461 3...... 39226, 39490 30...... 41802 1 ...... 39649, 40075, 40997 1253...... 40416 6...... 39226 200...... 39643 31...... 39109 Proposed Rules: 208...... 39226, 39490 240...... 40994 40...... 40079 13...... 40798 225...... 39226 Proposed Rules: 48...... 40079 242...... 42085 325...... 39226, 39490 270...... 39574, 39592 301...... 39652, 40086 1415...... 39905 327...... 42680, 42741 274...... 39574 602...... 40079, 40997 37 CFR 565...... 39226 Proposed Rules: 1...... 41018 567...... 39226, 42025 18 CFR 1 ...... 39896, 39902, 40792, 2...... 41018 611...... 42029 35...... 39251 40794, 40796 7...... 41018 618...... 42029 284...... 39252 301...... 39903 401...... 41811 620...... 42029 Proposed Rules: Proposed Rules: Proposed Rules: 284...... 39895 28 CFR 1...... 41035, 42352 3...... 39495 2 ...... 40092, 40094, 40270 208...... 39495 19 CFR 3...... 42352 5...... 42352 325...... 39495 19...... 42431 29 CFR 327...... 40776 101...... 41804 20...... 41016 38 CFR 701...... 39273 122...... 41804 1910...... 40457 2...... 40756 741...... 39274 132...... 39108 1926...... 39254 191...... 40995 2200...... 41805 39 CFR 14 CFR 2606...... 39848 20 CFR 111...... 39111 25...... 39625, 42029 2609...... 39848 39 ...... 39243, 39245, 39627, 335...... 40073 2619...... 42037 40 CFR 39628, 39631, 39633, 39635, 404...... 42431 2676...... 42037 9...... 40474 39637, 39842, 40748, 40750, 422...... 42431 Proposed Rules: 51...... 40098, 40465 40753, 40755, 40993, 41793, Proposed Rules: 1910...... 39281 52 ...... 39115, 39258, 39851, 41795 230...... 42482 2510...... 39208 39855, 39857, 40101, 40285, 71 ...... 39247, 39638, 39639, 416...... 40542 2615...... 41033 40286, 40291, 40292, 40465, 40069, 41798, 41799, 42031, 40758, 42042 21 CFR 42429, 42430, 42431 30 CFR 61...... 39263 73...... 40994 73...... 41805 901...... 42040 70 ...... 39862, 40101, 42045 97...... 40070, 40071 175...... 39645 946...... 40271 75...... 40295 189...... 39614 176...... 39645 948...... 42437 80...... 40006 Proposed Rules: 177...... 39647, 40073 Proposed Rules: 81 ...... 39115, 39258, 39857, 1...... 41160 178...... 39648 206...... 40120, 40127 40297 39 ...... 40118, 40782, 40783, 310...... 42435 250...... 41034 82...... 40420 41030, 41868, 42479 510 ...... 39846, 40454, 40455 256...... 41034 86...... 39264, 40474 61...... 41160, 42764 520...... 39846, 40454 93...... 40098 63...... 42764 522...... 39846 31 CFR 122...... 40230 65...... 42764 529...... 40455 0...... 42042 124...... 40230 71 ...... 39280, 39893, 39894, 524...... 39846 515...... 39255 136...... 39586 558...... 39846, 39847 40020, 40227 Proposed Rules: 180 ...... 40498, 40500, 40503, 1309...... 42436 108...... 42764 1...... 40797 42443, 42446, 42447, 42449, 1310...... 42436 121...... 41992, 42764 103...... 39665 42450, 42453, 42456, 42458 125...... 41992 Proposed Rules: 185 ...... 40503, 42453, 42456, 127...... 41992 801...... 41314 32 CFR 42458, 42460 803...... 41314 186...... 42460 135...... 41992, 42764 92...... 40277 141...... 41160 804...... 41314 195...... 41813 897...... 41314 Proposed Rules: 258...... 40104 143...... 41160 220...... 39285 145...... 41992 261...... 41817 22 CFR 33 CFR 271...... 41818, 42046 15 CFR 41...... 42034 712...... 39654 100...... 40096 213...... 40456 Proposed Rules: 902...... 39248 117...... 40097 905...... 39249 Ch. I ...... 39668 24 CFR 126...... 39788 9...... 41870 Proposed Rules: 25...... 39236 127...... 39788 51...... 39297 801...... 40336 26...... 39236 137...... 39849 52 ...... 39298, 39907, 39910, 806...... 39128 202...... 39236 165 ...... 40458, 41017, 41018 39911, 40139, 40338, 40799, 944...... 40540 203...... 42754 Proposed Rules: 42130, 42491 990...... 39804 206...... 42754 1...... 39130 60...... 41870 300...... 42012 117...... 39287, 40138 61...... 39299 16 CFR 310...... 42012 165...... 40543 70...... 39911, 40140 3...... 39640 320...... 42012 183...... 40545 80...... 40009 14...... 42031 330...... 42012 81 ...... 39298, 39911, 40338 34 CFR 234...... 40262 340...... 42012 180 ...... 39299, 39302, 40545, 237...... 40263 350...... 42012 76...... 41286 42494 242...... 40265 360...... 42012 366...... 39216 185...... 39302 248...... 40267 370...... 42012 667...... 41286 194...... 39131 252...... 40453 380...... 42012 668...... 42408 258...... 40799 800...... 40704 390...... 42012 Proposed Rules: 260...... 41870 803...... 40704 395...... 42012 345...... 40688 262...... 41870 1117...... 41799 888...... 42222, 42230 371...... 42490 264...... 41870 1500...... 40785, 41801 1710...... 42436 265...... 41870 Proposed Rules: Proposed Rules: 36 CFR 270...... 41870 3...... 42481 888...... 42290 7...... 39257 271...... 41870 Federal Register / Vol. 60, No. 158 / Wednesday, August 16, 1995 / Reader Aids iii 300...... 41051 61...... 39136 1833...... 40508 210...... 39271 302...... 40042 64...... 39136 1835...... 40508 216...... 39271 355...... 40042 69...... 39136 1837...... 40508 250...... 39271 372...... 39132 73 ...... 39141, 39142, 39143, 1839...... 40508 270...... 39271 433...... 40145 39308, 40146, 40812, 40813, 1846...... 40508 285...... 42469 438...... 40145 40814, 41870, 42130 1849...... 40508 301...... 39663, 40227 464...... 40145 1850...... 40508 604...... 39271 48 CFR 1852...... 40508 625...... 40113 41 CFR Ch. I ...... 42648 1853...... 40508 640...... 41828 Ch. 114 ...... 39864 Ch. II ...... 40105 1870...... 40508 661 ...... 39991, 40302, 42469 1...... 42649, 42664 2801...... 40108 662...... 40303 42 CFR 2...... 42652 2802...... 40108 663...... 39875 409...... 39122 4...... 42649, 42652 2804...... 40108 671...... 40763 411...... 41914 5...... 42652 2805...... 40108 672...... 40304, 40763 484...... 39122 6...... 42652, 42664 2807...... 40108 673...... 42070 Proposed Rules: 14...... 42649, 42652 2808...... 40108 675 ...... 39877, 40304, 40763 412...... 39304 15...... 42649, 42652 2809...... 40108 676...... 40304, 40763 413...... 39304 17...... 42652 2810...... 40108 677...... 40763, 42470 19...... 42652 424...... 39304 2812...... 40108 Proposed Rules: 485...... 39304 25...... 42649, 42652 2813...... 40108 Ch. VI ...... 40340, 40815 31 ...... 42657, 42659, 42662 489...... 39304 2814...... 40108 17 ...... 39309, 39314, 39326, 36...... 42652 2815...... 40108 39337, 40149, 40339, 40549, 43 CFR 37...... 42659 2816...... 40108 42140 42 ...... 42657, 42659, 42663 Public Land Orders: 2817...... 40108 23...... 39347 50...... 42649 7149...... 39655 2828...... 40108 32...... 42668 51...... 42652 7150...... 39655 2829...... 40108 100...... 42085 52 ...... 42649, 42652, 42657, 7153...... 42067 2830...... 40108 402...... 39921 42659, 42663 2832...... 40108 638...... 40150 44 CFR 206...... 40106 2833...... 40108 642...... 39698 207...... 40106 64...... 39123, 42462 2835...... 40108 646...... 40815 65...... 39865, 39867 215...... 40106 2845...... 40108 219...... 40106, 41157 649...... 40341 67...... 39868 2852...... 40108 227...... 41157 650...... 40341 Proposed Rules: 2870...... 40108 235...... 40107 651...... 40341 10...... 39694 252...... 40106 Proposed Rules: 663...... 39144 67...... 39912 501...... 40107 209...... 40146 697...... 39700 216...... 40146 45 CFR 519...... 39660 552...... 39660 217...... 40146 11...... 40505 601...... 39661 246...... 40146 1160...... 42464 LIST OF PUBLIC LAWS 602...... 39661 252...... 40146 1355...... 40505 605...... 39661 49 CFR 46 CFR 606...... 39661 This is a continuing list of 609...... 39661 171...... 39608, 40030 public bills from the current 30 ...... 39267, 40227, 41157 610...... 39661 172 ...... 39608, 39991, 40030 session of Congress which 67...... 40238 613...... 39661 173...... 40030 have become Federal laws. It 150 ...... 39267, 40227, 41157 616...... 39661 178...... 40030 may be used in conjunction 160...... 39268 619...... 39661 192...... 41821 with ``P L U S'' (Public Laws 387...... 42466 625...... 39661 390...... 40761 Update Service) on 202±523± Proposed Rules: 636...... 39661 571...... 41028 6641. The text of laws is not 5...... 39306 637...... 39661 575...... 39269 published in the Federal 10...... 39306 653...... 39661 653...... 39618 Register but may be ordered 12...... 39306, 40145 939...... 39871 654...... 39618 in individual pamphlet form 15...... 39306 1801...... 40508 800...... 40111 (referred to as ``slip laws'') 16...... 40145 1803...... 40508 830...... 40111 from the Superintendent of 831...... 40111 Documents, U.S. Government 47 CFR 1804...... 40508 1805...... 40508 1023...... 39874 Printing Office, Washington, 1 ...... 39268, 39656, 40712 1808...... 40508 Proposed Rules: DC 20402 (phone, 202±512± 2...... 39657 1809...... 40508 5...... 39919 2470). 15...... 40760 1810...... 40508 571...... 39308, 42496 26...... 40712 1812...... 40508 575...... 42496 H.R. 2161/P.L. 104±22 64...... 42068 1814...... 40508 1051...... 40548 To extend authorities under 68...... 42068 1815...... 40508 1220...... 40548 the Middle East Peace 73 ...... 39127, 39659, 40105, 1819...... 40508 1312...... 39143 Facilitation Act of 1994 until 40301, 40761, 41027, 42069 1822...... 40508 October 1, 1995, and for other 87...... 40227 50 CFR 1825...... 40508 purposes. (Aug. 14, 1995; 109 90...... 39660 1827...... 40508 2...... 40301 Stat. 260; 1 page) Proposed Rules: 1829...... 40508 100...... 40459, 40461 1...... 39134 1831...... 40508 204...... 39248 Last List August 8, 1995